Madras High Court
Valliyammal vs A.Sooriyanarayanan @ ... on 9 June, 2021
1 S.A.(MD)NO. 997 OF 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.997 of 2011 and
M.P.(MD)No.1 of 2011
Valliyammal ... Appellant/Appellant/
Defendant
Vs.
A.Sooriyanarayanan @ Sooriyanarayana Moorthy,
... Respondent/Respondent/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 30.03.2011
passed in A.S.No.148 of 2007 on the file of the Subordinate
Judge, Valliyoor, confirming the Judgment and Decree dated
26.10.2006 passed in O.S.No.24 of 2005 on the file of the
Principal District Munsif, Valliyoor.
For Appellant : Mr.J.Ashok,
for M/s.Jayapaul Associates.
For Respondent : Mr.S.Mani
***
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2 S.A.(MD)NO. 997 OF 2011
JUDGMENT
The defendant in O.S.No.24 of 2005 on the file of the
Principal District Munsif, Valliyoor, is the appellant in this
second appeal.
2.The respondent Sooriyanarayanan @
Sooriyanarayanamoorthy filed the said suit for recovering a
sum of Rs.81,296/- from the appellant herein with interest.
The suit was laid on the strength of Ex.A.1 promissory note
dated 16.08.2004. The case of the plaintiff is that his relative
Tmt.Ovia, introduced her colleague to the appellant herein
and the appellant herein borrowed a sum of Rs.73,771/- on
16.08.2004 and executed promissory note agreeing to repay
the said amount with interest at 2% p.a. The defendant
contrary to her assurances, did not repay the principal amount
or the interest. Therefore, the plaintiff issued Ex.A.2 notice
dated 07.12.2004. Though the appellant received the same as
evidenced by Ex.A.3 acknowledgement card, she did not
choose to comply with the demand set out in the notice.
Therefore, the suit came to be laid. The appellant filed her
written statement denying the suit claim. According to the
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3 S.A.(MD)NO. 997 OF 2011
appellant, the suit promissory note had been fabricated. She
also attributed motive to Ovia.
3. The plaintiff examined himself as P.W.1, Oviya was
examined as P.W.2 and one M.Selvakumari was examined as
P.W.3. Ex.A.1 to Ex.A.7 were marked. The defendant examined
herself as D.W.1 and Ex.B.1 to Ex.B.4 were marked.
4. The trial Court by Judgment and Decree dated
26.10.2006 decreed the suit as prayed for.
5. Aggrieved by the same, the defendant filed A.S.
No.148 of 2007 before the Sub Court, Valliyoor. The first
appellate Court by the impugned Judgment and Decree dated
30.03.2011 dismissed the appeal and confirmed the Judgment
and Decree passed by the trial Court. Challenging the same,
this second appeal came to be filed.
6. Though the second appeal is of the year 2011 and
interim stay has been granted till date, it has not been
admitted. The learned counsel appearing for the appellant
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4 S.A.(MD)NO. 997 OF 2011
reiterated all the contentions set out in the memorandum of
grounds and submitted that this Court may formally admit the
appeal and after putting the respondent on notice, take up this
second appeal for consideration.
7. I am not persuaded by the said by the said request.
It is true that the appellant had denied her signature in ExA.1
promissory note. But then, the learned trial Munsif after
calling for admitted signatures of the defendant had compared
her signature with the disputed signature in Ex.A.1 and come
to the conclusion that Ex.A.1 had actually been executed by
the defendant. The contention of the appellant's counsel is
that the Court could not have undertaken the exercise of
comparison on its own. In Thirumuruga Ramalingam Vs.
Mohamed Hanifa (2015 SCC OnLine Mad 440), a learned Judge of
this Court held as follows :
“9.These provisions have been subject
matter of several decisions of this Court. No
doubt, a Court does not exceed its power under
section 73, if it compares the disputed signatures
with the admitted signature of the party so as to
reach its own conclusions. Though there is no
legal bar to the Judge using his own eyes, to
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5 S.A.(MD)NO. 997 OF 2011
compare the disputed signatures without the aid
of an handwriting expert, the Judge should
hesitate to render his findings with regard to the
identity of the handwriting. The reason is that
such opinion forms the sheet anchor against a
person whose signature is compared. Such
venture by the first appellate Court to compare
the signatures by itself does not mean that the
Court had assumed the role of an expert. Section
73 of Evidence Act expressly enables the Court
to compare the disputed signature. Such
comparison of signature by an expert is not done
by the parties, may be for the reason of
ignorance or affordability. Then it becomes the
duty of the Court to compare the signature and
come to a conclusion. Thus the Court cannot
avoid its responsibility in the absence of an
expert opinion. If the opinion of an expert is
available, it would aid the Court in proper
adjudication of the matter. When the same is not
available, the Court will have to seek guidance
from its own experience and knowledge.”
8. In the case on hand, Ex.A.4 to Ex.A.7 in which the
signatures of the defendant were found were marked by P.W.3
Selvakumari. Since both sides have not taken steps for
referring the matter for the opinion of the handwriting expert,
the trial Court was definitely entitled to exercise the power
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6 S.A.(MD)NO. 997 OF 2011
and jurisdiction under Section 73 of the Indian Evidence Act,
1872. In fact in the aforesaid order it has been held that when
the parties have not chosen to refer the matter for expert
opinion, it becomes the duty of the Court to compare the
signatures and come to a conclusion. Once the Court below
had found that Ex.A.1 was actually executed by the defendant,
the presumption under Section 118 of the Negotiable
Instruments Act, 1882 got triggered. The appellant had not
rebutted the presumption and therefore, the trial Court rightly
accepted the claim of the plaintiff and decreed the suit. The
Courts below have adopted the correct approach and applied
the relevant principles to render finding in favour of the
plaintiff. The impugned Judgments do not call for any
interference. However, I must note that awarding of interest
at 24% p.a from the date of the suit till the date of realisation
appears to be little harsh. Therefore, the impugned Judgment
and Decree passed by the Courts below is modified and I
direct the appellant to pay a sum of Rs.81,296/- with
subsequent interest at 6% on the principal amount of
Rs.73,771/- from the date of plaint till the date of realisation.
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7 S.A.(MD)NO. 997 OF 2011
9. With this modification in the matter of rate of
interest, this second appeal is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
09.06.2021
Index : Yes / No
Internet : Yes/ No
PMU
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.
To:
1. The Subordinate Judge,
Valliyoor.
2. The Principal District Munsif,
Valliyoor.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 S.A.(MD)NO. 997 OF 2011
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.997 of 2011
09.06.2021
https://www.mhc.tn.gov.in/judis/
