Madras High Court
O.M.Karuppannasamy vs A.S.Sivakumar on 7 July, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1426 of 2008
&
M.P.No.1 of 2008
O.M.Karuppannasamy ...Appellant
Vs.
A.S.Sivakumar ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the Additional District
Judge, (Fast Track Court No.2), Gobichettipalayam in A.S.No.12 of
2007 dated 30.11.2007 confirming the Judgement and Decree of the
learned District Munsif, Gobichettipalayam in O.S.No.137 of 2005
dated 12.07.2005.
For Appellant : Mr.A.K.Kumarasamy
Senior Counsel
for Mr.S.Kaithamalai Kumaran
For Respondent : Ms.Zeenath Begum
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JUDGMENT
The defendant in a promissory suit is the appellant before this
Court challenging the decree passed in a suit for recovery of money due
on promissory note. The parties are referred to in the same array as in
the Trial Court.
Plaintiffs case:
2. The plaintiff had filed the suit O.S.No.154 of 1997 on the file
of the Subordinate Court, Gobichettipalayam, which was subsequently
re-numbered as O.S.No.137 of 2005 on the file of the District Munsif,
Gobichettipalayam for recovery of a sum of Rs.42,545/- together with
future interest and cost. The plaintiff would contend that the defendant
is his neighbor and was in the habit of borrowing money from him on
the security of promissory notes. On 14.10.1994 the defendant
acknowledging that he owed a sum of Rs.33,500/- had executed a
promissory note agreeing to repay the sum on demand and also
promising to pay interest at 15% per annum. However, contrary to the
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assurance the defendant contended that the amounts were time barred
and he was not liable to repay the same and considering the fact that the
defendant was an agriculturist the interest has been restricted to 9 %
per annum. Therefore, the plaintiff has come forward with the suit.
3. The defendant had filed a written statement inter alia
contending that he had not executed the promissory note on 14.10.1994
and the said document is nothing but a rank forgery. The signature
found in the document is not that of the defendant. The defendant
further submitted that from the year 1991 the defendant and the
plaintiff were in logger heads regarding the properties situate at
R.S.F.60/5 of Mettupalayam Village before the Revenue Authorities
and a suit had also been filed by the plaintff in O.S.No.3 of 1995 and
the defendant had also instituted a suit in O.S.No.211 of 1995 against
the plaintiff. The suits are pending Judgement before the District
Munsif, Gobichettipalayam.
4. The defendant would submit that nowhere in the suit filed by
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the plaintiff viz; O.S.No.3 of 1995, had he mentioned the date of the
promissory note. The defendant also contended that whenever he
borrowed money on the security of the promissory note he had himself
filled up the promissory notes. The defendant would further submit
that the plaintiff had not issued a pre suit notice which would clearly go
to show that the suit promissory note was a fabricated one. The
defendant would submit that no amounts were due by him to the
plaintiff. He therefore prayed for a dismissal of the suit.
5.The learned District Munsif, Gobichettipalayam had framed the
following issue:
“(i)whether the contention that the defendant had executed the
promissory note on 14.10.1994 for a sum of Rs.33,500/- towards the
pre existing debt dues is true?
(ii)Whether the plaintiff is entitled to the reliefs claimed?
(iii)To what other relief?”
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6.The plaintiff had examined himself as P.W.1 and had marked
Ex.A.1 to Ex.A.5. The defendant had examined himself as D.W.1 but
had not marked any documents on his side. The learned District
Munsif, Gobichettipalayam proceeded to decree the suit on the
following grounds:
(a) The defendant had not sought to have the signatures
compared by sending it for an expert opinion.
(b) The defendant as D.W.1 was not able to differentiate the
signatures in the admitted documents and the disputed document.
© The defendant is trying to take advantage of the fact that
Ex.A.1 promissory note has not been written in his hand.
(d)The litigation between the parties was only in the year 1995
after the execution of the promissory note. Therefore, the allegation
that there was enmity is totally false.
7. Challenging the said Judgement and Decree the defendant had
filed AS.No.16 of 2006 on the file of the Principal Subordinate Court,
Gobichettipalayam, which was subsequently transferred to the
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Additional District Court (FTC II), Gobichettipalayam and re-
numbered as A.S.No.12 of 2007. The Appellate Court without framing
the points for consideration had simply framed the following point for
consideration:
“Whether the appeal can be allowed?”
8. The learned Additional District Judge had dismissed the appeal
and confirmed the Judgement and Decree of the Trial Court. The
learned Judge had also more or less adopted the findings of the Trial
Court but exercising the provisions of Section 73 of the Evidence Act
had proceeded to compare the signatures of the defendant in the
admitted documents, namely, Ex.A.4 and Ex.A.5 with the disputed
signature in Ex.A.1 and came to the conclusion that the signatures were
identical. Challenging the same the defendant has moved this Court.
9. The above Second Appeal was admitted on the following
Substantial Questions of law:
(i)Are the Courts below justified in holding that the
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execution of suit promissory note is proved since the
previous promissory note are proved, overlooking that
except the ipsi dixit of P.W.1 / plaintiff, there is no evidence
on record to prove the execution of promissory note
especially when the execution is denied by the defendant /
appellant?
(ii)Is not the Judgement of the Lower Appellate
Court vitiated in as much as the provisions of Order 41
Rule 31 CPC which is mandatory, is not complied with?”
10. Mr.A.K.Kumarasamy, learned senior counsel arguing on
behalf of the learned counsel for the appellant / defendant would
submit that the Appellate Court had not followed the procedure
contemplated under Order XLI Rule 31 of the Code of Civil Procedure
which clearly mandates that the Appellate Court while writing the
Judgement should state the point for determination and decision there
on along with the reason for such decision.
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11. He would further submit that though the appellant / defendant
has in very clear terms disputed his signature in Ex.A.1 promissory
note, the respondent / plaintiff has not chosen to prove its execution by
examining the scribe named in Ex.A.1. It is only his ipsi dixit to prove
the execution. He would further submit that the dispute had existed
between the parties right from 1991 before the Revenue Court, which
thereafter moved to the Civil Court and therefore the question of
executing the suit pronote is impossible.
12. He would argue that the Appellate Court had proceeded to
believe the execution of Ex.A.1 promissory note only on the ground
that the defendant had admitted the execution of Ex.A.4 and Ex.A.5.
The Appellate Court has overlooked the contention of the defendant
that the signature found in the suit promissory note was not his
signature. The Appellate Court had erred in assuming the role of an
expert and therefore the Judgement requires to be reversed and
considering the fact that the point for determination was not framed the
matter may be remanded back to the Appeal Court for fresh enquiry.
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13. Per contra, Ms.Zeenath Begum appearing on behalf of the
respondent / plaintiff would contend that the learned Additional
District Judge has exercised his powers under Section 73 of the Indian
Evidence Act to arrive at the conclusion that the suit promissory note
had been executed by the defendant. She would submit that on the date
of the execution of the promissory note there was no dispute between
the parties since the suit had been filed only in the year 1995. The
promissory note was an year earlier.
14. She would further submit that non framing of the point for
consideration was not fatal and would rely upon the Judgement of the
Hon'ble Supreme Court reported in (2006) 3 SCC 224 –
G.Amalorpavam and others Vs. R.C. Diocese of Madurai and others,
where the Hon'ble Supreme Court has observed that is it was possible
to make out that there was a substantial compliance of the provisions of
Order XLI Rule 31 of the CPC and justice has not suffered the non-
compliance will not vitiate the Judgement and Decree.
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15. She had also relied upon the Judgement of this Court reported
in 2017 (5) CTC 520 – K.M.Balasubramanian Vs. S.Shanmugam and
others, in support of her arguments that there is no bar for the Court to
compare the signatures. She would further submit that the defendant
having admitted the execution of Ex.A.4 and Ex.A.5 promissory notes
and the suit promissory note had been executed only for the
outstanding amounts both the Courts below were right in decreeing the
suit.
16. Heard the learned counsels and perused the records.
17. The defendant had questioned the veracity of the promissory
note and the Judgement on the following grounds:
(a)The signature contained therein is not his signature but a rank
forgery.
(b)At the relevant point of time the plaintiff and the defendant
were at logger heads in respect of some property disputes.
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(c)Despite the signatures being disputed the plaintiff on whom
the burden of proof lay has not taken any steps to send the signatures
for expert opinion.
18. The execution of the promissory note has not been proved by
the plaintiff by examining an independent witness especially in the
light of the fact that the defendant had denied executing the said Ex.A.1
promissory note and that apart had termed the signature therein as a
rank forgery. Therefore, the burden to prove shifts on the plaintiff who
has to prove that the signature contained in Ex.A.1 is that of the
defendant. It is the admitted case of the plaintiff that the scribe of
Ex.A.1 was his relative. In his cross examination as P.W.1 he would
submit as follows:
“nkw;go th/rh/M/1id vGjpatu; xUtifapy;
vdf;F rfiy vd;why; rupjhd;”;
19. There is no explanation given by the plaintiff as to why he
has not examined the scribe particularly when the defendant had cross
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examined him extensively on the fact that the plaintiff had not
examined the scribe because the scribe would speak the truth. The
plaintiff has not even taken steps to have the disputed signature
compared with the admitted signatures by sending it for an expert
opinion. It is rather strange that the Courts below have placed the onus
of proof upon the defendant when it is the plaintiff who had to prove
the execution of the said document when the same is denied by the
defendant.
20. The very execution of Ex.A.1 though shrouded with
suspicion the plaintiff has not dispelled this effectively by examining
an independent witness or by having the document examined by an
expert. Further, there is no explanation on the side of the plaintiff as to
the promissory notes under which the sum of Rs.33,500/- was due. The
plaint is deafeningly silent in this regard. The only averment made by
the plaintiff is that the defendant was in the habit of borrowing and on
14.10.1994 he was due and owing a sum of Rs.33,500/-. The details of
how the sum of Rs.33,500/- has been arrived at is absent. If the
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amounts are due towards Ex.A.4 and Ex.A.5 then these promissory
notes which are of the year 1987 would have been time barred in the
year 1990. Therefore, the plaintiff is bound to provide the above
details particularly when the execution of the said document has been
denied by the defendant.
21. The plaintiff has filed the above suit just a day prior to expiry
of the limitation. The plaintiff has waited till the last minute to file the
suit particularly when in the written statement in O.S.No.3 of 1995 the
defendant has categorically stated that he does not owe any money
much less a sum of Rs.33,500/- to the plaintiff.
22. The contention of the defendant that there was proceedings
pending between the plaintiff and the defendant from the year 1991
stands confirmed by the statement in the written statement of the
defendant that proceedings were pending before the Revenue Court and
that while the appeal filed before the Revenue Divisional Officer,
Gobichettipalayam was pending the plaintiff had come forward with
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the present suit. This fact has not been refuted by the plaintiff either by
filing a reply statement or in evidence. This has not been considered by
the Courts below.
23. The Appellate Court has proceeded to act as an expert by
comparing the admitted signatures found in Ex.A.4 and Ex.A.5 with
the disputed signature in Ex.A.1. Except for stating that the signature
in the disputed document is the same as the signatures found in Ex.A.4
and Ex.A.5, the learned Judge has not given any reason for coming to
such a conclusion. Another factor which has been overlooked by the
Courts below is that Ex.A.4 and Ex.A.5 had been written in the hands
of the defendant whereas the disputed document has been written in the
hand of one Karupanna Gounder. The plaintiff has not given reasons
as to why Ex.A.1 alone has been written by different person and not by
the defendant which once again casts a doubt on the veracity of Ex.A.1.
Even in the Judgement relied upon by the learned counsel for the
plaintiff, namely, 2017 (5) CTC 520 the learned Judge had relied upon
the Judgement of the Hon'ble Supreme Court reported in (2008) 4 SCC
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530 - Thiruvengadam Pillai vs. Navaneethammal and another and
had observed as follows:
“The Trial Court has not discussed the features of
the signatures before holding that the signatures found in
Ex.A1 are that of 1st defendant based on comparison.
While it is true that the Court can compare the signatures
and come to the conclusion, the Honble Supreme Court has
cautioned that the Court before exercising such a power it
should make a thorough study of the case. It must point out
the basis on which, the Court has come to the conclusion
that the signatures are all of the same persons or others. In
the absence of such basis or opinion, comparison by the
Court is deprecated by the Honble Supreme Court.”
24. In the instant case the Appellate Court had simply observed
that the signatures in the admitted documents and the disputed
document is one and the same. This observation does not conform to
the dicta laid down by the Hon'ble Supreme Court in the Judgement
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reported in (2008) 4 SCC 530 - Thiruvengadam Pillai Vs.
Navaneethammal and another. Therefore, the plaintiff has miserably
failed to prove that Ex.A.1 has been executed by the defendant.
25. The argument of the learned senior counsel that the Appellate
Court has not followed the provisions of Order XLI Rule 31 of CPC
cannot be countenanced since a reading of the Judgement would clearly
indicate that the Appellate Court has considered the entire evidence,
discussed the same and given its reasons for the same and therefore
there is substantial compliance of provisions of Order XLI Rule 31 of
the Code of Civil Procedure.
26. In fine, the Second Appeal is allowed. The Judgement and
Decree of the Courts below is set aside with costs. Consequently,
connected Miscellaneous Petition is also closed.
07.07.2021
Index : Yes/No
Internet : Yes/No
kan
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
To,
1.The Additional District Judge,
(Fast Track Court No.2), Gobichettipalayam
2.The District Munsif, Gobichettipalayam
S.A.No.1426 of 2008
07.07.2021
https://www.mhc.tn.gov.in/judis/
