Madras High Court
R.K.Vasakar vs B.Thirupathi Rayar on 19 April, 2021
S.A.(MD)No.198 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.198 of 2008
R.K.Vasakar ... Appellant
Vs.
B.Thirupathi Rayar ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.11 of 2006, on the file of the
Sub Court, Uthamapalayam, dated 27.07.2006, reversing the fair and decreeal
order passed in I.A.No.401 of 2004 in O.S.No.370 of 2004 on the file of
District Munsif Court, Uthamapalayam, dated 06.10.2005.
For Appellant : Mr.S.Madhavan
For Respondent : Mrs.J.Maria Roseline
JUDGEMENT
This second appeal arises out of final decree proceedings. The appellant
was the plaintiff in O.S.No.2 of 1996 on the file of Sub Court, Periyakulam
(For reasons which I am not able to decipher, it is referred to as O.S.No.370 of
2004 on the file of the District Munsif Court, Uthamapalayam).
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S.A.(MD)No.198 of 2008
2.The case of the appellant is that respondent/Thirupathi Rayar had
borrowed a sum of Rs.21,000/- from him and to secure the transaction
Ex.A.1/mortgage deed was executed on 29.01.1986 and registered on
30.01.1986 on the file Sub Registrar Office, Uthamapalayam. The case of the
appellant is that mortgage debt was not at all discharged. Therefore, he filed
O.S.No.2 of 1996 for recovery of the aforesaid amount with interest and in the
event of failure to do so, to bring the mortgaged property to sale. The
respondent contested the suit claim on the ground that the mortgage amount
was repaid by way of payments made on two occasions namely., on 02.07.1987
and 25.01.1995 and that the plaintiff had issued two receipts namely., Ex.B.1
and Ex.B.2 evidencing the said payments. The learned Trial Judge partly
accepted the defence of the respondent herein. The finding of the Trial Judge
was that payment of sum of Rs.3,570/- on 02.07.1987 under Ex.B.1 was
established. Ex.B2/receipt was held not proved. Due adjustment was made for
the amount covered under Ex.B.1 and preliminary decree was passed on
16.08.2001 and the respondent was directed to pay a sum of Rs.78,409/- to the
plaintiff with interest at the rate of 6% on the principal amount of Rs.30,000/-
from the date of decree till date of payment. The respondent did not question
the said preliminary decree.
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S.A.(MD)No.198 of 2008
3.The case of the appellant was that the respondent did not satisfy the
preliminary decree. Therefore, he filed I.A.No.62 of 2002 before the Sub
Court, Periyakulam for passing final decree. The said interlocutory application
was transferred to the file of the District Munsif, Uthamapalayam and
re-numbered as I.A.No.401 of 2004. Before the Trial Court, the appellant
examined himself as P.W.1. The respondent examined not only himself but two
other persons namely., Raja and Ganesan as defence witnesses and
Ex.R.1/receipt dated 05.03.2002 was marked on the side of the respondent.
4.According to the respondent, the matter was settled out of Court in the
presence of D.W.2 and D.W.3 upon payment of a sum of Rs.45,000/- to the
appellant and that the appellant issued Ex.R.1/receipt. The Trial Court after
considering the entire evidence on record rejected the stand of the respondent
and passed final decree in consonance with the preliminary decree by judgment
and decree dated 06.10.2005. Questioning the same, the respondent herein
filed A.S.No.11 of 2006 before the Sub Court, Uthamapalayam. The First
Appellate Court by judgment and decree dated 27.07.2006 set aside the final
decree passed by the Trial Court and allowed the first appeal. Challenging the
same, this second appeal came to filed by the appellant.
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S.A.(MD)No.198 of 2008
5.The second appeal was admitted on the following substantial question
of law:
“Whether the findings of the first appellate Court
pertaining to Ex.R1 are perverse on account of its
misconstruction?
6.Heard the learned counsel on either side on the aforesaid substantial
question of law.
7.The learned counsel for the appellant reiterated all the contentions set
out in the memorandum of grounds and submitted that this Court should
answer the substantial question of law in favour of the appellant and set aside
the judgment passed by the First Appellate Court and restore the final decree
passed by the Trial Court.
8.Per contra, the learned counsel for the respondent took me through the
reasons assigned by the first appellate court and submitted that the finding of
fact rendered by the first appellate court with regard to Ex.R.1 ought not to be
upset by this Court while exercising its jurisdiction under Section 100 of Civil
Procedure Code and she pressed for dismissal of the second appeal.
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S.A.(MD)No.198 of 2008
9.I carefully considered the rival contentions and went through the
evidence on record. The respondent is the mortgagor and the appellant is the
mortgage. The appellant had obtained a preliminary decree in his favour.
Admittedly, the same was not challenged and it has become final. To enforce
the preliminary decree, the appellant filed I.A.No.62 of 2002 before Sub Court,
Periyakulam. (Re-numbered as I.A.No.401 of 2004 on the file of the District
Munsif Court, Uthamapalayam). The stand of the respondent is that a sum of
Rs.45,000/- was paid to the appellant and that the appellant had accepted the
said amount from the respondent in the presence of D.W.2 and D.W.3 and that
he issued Ex.R.1/receipt towards full satisfaction of his claims. Therefore, the
only question that arises for consideration is whether Ex.R.1 is a true and
genuine document. Since the appellant had denied having executed Ex.R.1,
there can be no doubt that the burden of proof lay entirely on the respondent to
prove that Ex.R.1 was executed by the appellant acknowledging discharge of
the mortgage liability by the respondent. The respondent herein did not take
any step for referring Ex.R.1 for the opinion of any handwriting expert.
However, he examined D.W.2 and D.W.3, the witnesses who had attested
Ex.R.1. The Trial Court came to the conclusion that there were discrepancies
in their testimony and therefore, it went on to hold that Ex.R.1 has been
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S.A.(MD)No.198 of 2008
fabricated by the respondent. The Trial Court proceeded to pass final decree as
prayed for by the appellant.
10.To dislodge the findings of the Trial Court and allow the appeal filed
by the respondent, the First Appellate Court has given the following reasons:-
(a) The appellant had been changing the manner and style
of affixing his signature. In the judgment passed by the Sub
Court, Periyakulam on 16.08.2001 while passing preliminary
decree, it was observed that the appellant used to sign only as
“K.Vasagar” and only later he started signing as “R.K.Vasagar”.
Therefore, it is not possible to compare the disputed signature in
Ex.R.1 with the admitted signature of the appellant. Hence, the
exercise of comparison undertaken by the Trial Court was not
appropriate.
(b) D.W.2/Raja had taken initiative in resolving the dispute
between the appellant and the respondent. Certain discrepancies
were noticed between testimony of D.W.1/respondent and that of
D.W.2/Raja. Such discrepancies are minor and they do not go to
the root of the matter.
(c) D.W.2 and D.W.3 have spoken about the affixing of
signature by the appellant in Ex.R.1. Non filing of Ex.R.1 along
with the counter in I.A.No.62 of 2002 was a mistake committed by
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S.A.(MD)No.198 of 2008
the counsel for the respondent and therefore, the respondent ought
not to suffer for the same.
(d) Merely because one of the two receipts projected by the
defendant in the preliminary decree proceedings came to be
rejected, that cannot be a ground to reject Ex.R.1.
11.Now the only question that arises for my consideration is whether the
findings of the first appellate court pertaining to Ex.R.1 are perverse on
account of its misconstruction. I have already held that it was the respondent
who was obliged to establish the genuineness of Ex.R.1. The question is
whether this burden cast on the respondent has been discharged. The appellant
had denied the signature attributed to him in Ex.R.1. Neither the appellant nor
the respondent took any step for having the document referred for opinion of
the handwriting expert. The Trial Court undertook the task of comparison and
came to the conclusion that the signature found in Ex.R.1 is not that of the
appellant. The First Appellate Court on the other hand came to the conclusion
that the appellant was in the habit of changing the style of affixing his signature
and that therefore, there was no acceptable document for comparing the
disputed signature of the appellant found in Ex.R.1. It is primarily on this
ground that the first appellate court chose to interfere with the decision of the
Trial Court. Even, if this reason assigned by the first appellate court is
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S.A.(MD)No.198 of 2008
accepted, still that cannot necessarily lead to the conclusion that the respondent
had proved the issuance of Ex.R.1 by the appellant. When there is no
acceptable document available for comparison, for the Court to come to the
conclusion that the disputed signature is proved to be that of the executant
whose signature it purports to be, the testimony of the witnesses must be
unimpeachable.
12.The preliminary decree was passed against the respondent on
16.08.2001. The final decree petition was filed on 17.01.2002 before the Sub
Court, Periyakulam by the appellant. The respondent would claim that the out
of Court settlement took place on 05.03.2002. In other words, the out of Court
settlement is said to have taken place during pendency of the final decree
proceedings. The learned counsel for the respondent would claim that summon
in the final decree proceedings was received by the respondent much later and
on 05.03.2002, the respondent did not have any knowledge of the institution of
the final decree proceedings. The respondent had entered appearance in the
final decree proceedings only on 22.06.2002. To test the veracity of the claim
of the respondent, it is necessary to bear in mind the sequence of events from
the beginning. The financial transaction between the parties had taken place in
1985-1986. The mortgage deeds were registered on 30.01.1986 and
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S.A.(MD)No.198 of 2008
02.07.1987 (Ex.A1 and Ex.A.3). The plaintiff issued suit notice on 04.01.1995
(Ex.A.4). The defendant sent reply on 06.01.1995 (Ex.A.5). In O.S.No.2 of
1996, the respondent herein filed written statement that on 25.01.1995, he paid
a sum of Rs.67,000/- and the appellant issued Ex.B.2/receipt. It is this
Ex.B2/receipt that was rejected as fabricated by the Trial Court. In other
words, the respondent herein claimed that after the exchange of suit notices, he
paid a sum of Rs.67,000/- towards discharge of the mortgage liability. The suit
came to be filed only on 25.10.1995. If really on 25.01.1995 the entire
mortgage debt had been discharged, certainly the respondent would have got
the same duly registered so that the encumbrance of mortgage created against
the mortgaged property is deleted. The adverse finding of the Trial Court as
against Ex.B.2 dated 25.01.1995 projected by the respondent was not
challenged by the respondent by filing a first appeal. This conduct of the
respondent was taken note of by the learned Trial Judge while deciding the
issue raised in the final decree proceedings. As already observed, the final
decree petition was filed on 17.01.2002 and notice was issued on 29.01.2002,
returnable by 18.03.2002. It is in this background, the respondent claims that
on 05.03.2002, the out of Court settlement took place in the shop premises of
D.W.2/Raja. Since the relationship between the parties suffered from trust
deficit, the respondent could have paid the amount or arrived at settlement
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S.A.(MD)No.198 of 2008
before the Court. He had not done so. The amount of Rs.45,000/- could have
been paid through demand draft. More than anything else, he did not take any
step for getting the discharge certificate duly registered. So long as the
discharge certificate is not registered, the encumbrance of mortgage will
continue to remain in registration records. More than anything else, the Trial
Court had pointed out too many discrepancies between the testimony of D.W.1
on the one hand and the attesting witnesses on the other. D.W.2/Raja had
deposed that on 05.03.2002, the figure of compromise amount was not
discussed. He would also state that the respondent herein did not bring the
amount in question and only after the compromise was finalized, he went out
and brought it in about two hours. He also did not know as to how he sourced
the said amount. The respondent, on the other hand, would state that he had
brought with him a sum of Rs.30,000/- and that his co-brother/Suresh brought
the balance amount of Rs.15,000/- to the shop but D.W.2 would state that
respondent left the shop premises and returned after two hours with the
amount. D.W.3 also feigned ignorance. He stated that he did not enquire the
appellant or the respondent regarding the details of the transaction. He also
stated that he was not fully present during the talks. He did not know as to the
terms on which the dispute was settled. All that he would state was that in
white sheet, something like receipt was written and that he affixed his signature
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S.A.(MD)No.198 of 2008
and that he did not know the contents of Ex.R.1. He would also state that he
did not know as to the other signatories in Ex.R.1. He further admitted that he
was not acquainted with the appellant earlier. The Trial Court has given solid
reasons as to why the testimony of so-called attesting witnesses could not be
believed. The trial court had the advantage of observing the demeanour of the
witnesses. From the overall conduct of the respondent, I have no difficult in
coming to the conclusion that the findings of the First Appellate Court
pertaining to Ex.R.1 are perverse and that Ex.R.1 has been totally
misconstrued. The substantial question of law raised in this appeal is answered
in favour of the appellant and against the respondent. The judgment and decree
passed by the First Appellate Court is set aside and the judgment and decree
passed by the Trial Court is restored and the second appeal is allowed. No
costs.
19.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A.(MD)No.198 of 2008
G.R.SWAMINATHAN, J.
ias
To:
1.The Sub Court,
Uthamapalayam.
2.The District Munsif Court,
Uthamapalayam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.198 of 2008
19.04.2021
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