Madras High Court
S.Sivasubramanian vs R on 15 June, 2021
S.A.(MD)No.575 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.575 of 2007
S.Sivasubramanian ... Plaintiff / Respondent /
Appellant
vs.
R,Muthukutty(Died) ... Defendant /
Appellant / Respondent
2.M.Padmamani
3,M.Durairajalingam
4.M.Vijaya Arunkumar
5.M.Lingeswaram
6.M.Lakshmi Mahima ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the Judgment and Decree of the Principal
Sub Judge, Tenkasi, dated 03.11.2006 in A.S.No.32 of 2006
reversing the Judgment and Decree of the Principal District Munsif
Court, Tenkasi in O.S.No.222 of 2004, dated 09.06.2004.
For Appellant : Mr.T.S.R.Venkatramana
For R2 to R6 : Mr.S.A.Ajmal Khan
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S.A.(MD)No.575 of 2007
JUDGMENT
The plaintiff in O.S No.222 of 2004 on the file of the Principal
District Munsif Court, Tenkasi is the appellant in this second
appeal.
2.The suit was filed for recovering a sum of Rs.86,100/- from
the defendant R.Muthukutty. According to the plaintiff, the
defendant borrowed a sum of Rs.70,000/- on 01.08.2000 and
executed Ex.A1 pro-note. The defendant failed to pay interest. He
also did not repay the principal amount. Hence, the plaintiff
issued Ex.A2 suit notice dated 08.06.2002. Though it was received
by the defendant, he did not comply with the demand set out
therein. Hence, the plaintiff filed the said suit on 03.07.2002. The
defendant filed written statement controverting the plaint
averments. The trial court framed the necessary issues. The
plaintiff examined himself as P.W.1 and one of the attestors as
P.W.2 and marked Ex.A1 pro-note, Ex.A2-suit notice and Ex.A3-
acknowledgment card. The defendant examined himself as D.W.1
and one Thangasamy as D.W.2 and marked Ex.B1 to Ex.B9.
Courts-exhibits 1 to 6 were also marked following the steps taken
by the defendant. The learned trial Judge vide judgment and
decree dated 09.06.2004 decreed the suit as prayed for.
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S.A.(MD)No.575 of 2007
3.Challenging the same, the defendant filed A.S.No.32 of
2006 before the Principal Sub Court, Tenkasi. By the impugned
judgment and decree dated 03.11.2006, the decision of the trial
Court was set aside and the appeal was allowed and the suit came
to be dismissed. The aggrieved plaintiff filed this second appeal
which was admitted on the following substantial question of law:-
“Whether the comparison made by the first appellate
court with regard to Ex.A1 is correct?”
During the pendency of this second appeal, the
defendant/respondent R.Muthukutty passed away and his legal
heirs were brought on record.
4.The learned counsel appearing for the appellant submitted
that the plaintiff had proved the due execution of Ex.A1 by
examining one of the attestors of the document. Since the
defendant had received Ex.A2-notice, comparison of the signature
found in Ex.A1 with the one in Ex.A3 would show that Ex.A1 was
very much executed by the defendant. But the first appellate court
erroneously compared the disputed signature in Ex.A1 with the
admitted signatures found in acquittance registers that were
marked as court-exhibits. According to the learned counsel,
signature put by a person would vary depending upon situation
and circumstances. He submitted that the court below ought not
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S.A.(MD)No.575 of 2007
to have relied on Ex.B3 and Ex.B4 when there is no reference to
these exhibits in the written statement. In the absence of
pleadings, the first appellate court was not justified in looking into
those documents. He also contended that the attestor's credibility
cannot be doubted. This is because though he was a tenant under
the plaintiff, he hailed from the very same village and was also a
relative. The learned counsel reiterated all the contentions set
out in the memorandum of grounds and called upon the court to
answer the substantial question of law in favour of the appellant
and set aside the impugned judgment and decree and restore the
decision of the trial court.
5.Per contra, the learned counsel appearing for the
respondents submitted that the first appellate court had given
solid reasons to hold that Ex.A1 pro-note was not executed by the
defendant. He took me through the entire judgment and
submitted that it does not call for any interference.
6.I carefully considered the rival contentions and went
through the evidence on record. The defendant in the written
statement had categorized Ex.A1 as a concocted document.
Therefore, the signature attributed to the defendant in Ex.A1
became a disputed signature. It had to be compared with his
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S.A.(MD)No.575 of 2007
admitted signature. If neither of the parties failed to take steps to
obtain expert opinion, under Section 73 of the Indian Evidence Act,
1872 the court may undertake the task of comparing the disputed
signature with an admitted signature. But then, a disputed
signature cannot be compared with any admitted signature. One
does not sign in the same style and manner at all times. When
signing a cheque, one is careful because it can be returned by the
banker with the endorsement “signature differs”. To provide
another illustration, counsel may exhibit care while signing the
vakalat indicating acceptance. It is said that the legendary lawyer
Shri.V.L.Ethiraj would sign the vakalat/memo of appearance only
during auspicious hours! But when giving “no objection” in
response to a client's demand for change of vakalat, counsel may
simply scribble something that may pass for a signature. While
signing a copy application form or when making endorsements
such as “true copy”, “noted” or “received” on the case papers,
one's signature is bound to be casual or even careless.
Comparison of the disputed signature cannot be made with
admitted signatures found in such documents. In the case on
hand, the first appellate court had compared the disputed
signature found in Ex.A1 with the admitted signatures found in the
acquittance rolls (court-exhibits.1,2,4,5 & 6). For the reasons
mentioned above, I hold that such a comparison was intrinsically
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S.A.(MD)No.575 of 2007
improper. The first appellate court ought to have posed a question
as to whether they were fit to be taken up for comparison. Without
satisfying itself on that score, the task of comparison cannot be
made mechanically with an admitted signature. I therefore answer
the substantial question of law in favour of the appellant.
7.The institution of the suit was preceded by Ex.A2-notice.
Ex.A3 is the acknowledgement card which had been signed by the
defendant. I compared the defendant's signature in Ex.A3 with the
disputed signature in Ex.A1 and I could see that they tally.
Though I have answered the substantial question of law in favour
of the appellant and I have also found that the defendant had
signed Ex.A1 pro-note, that may still not be sufficient to upset the
impugned judgment passed by the first appellate court.
8.The defendant had admitted that he had borrowed a sum of
Rs.20,000/- from the plaintiff in November 1999 and executed a
pro-note. He pleaded that the plaintiff was pressurizing him to pay
Rs.1100/- as monthly interest. The plaintiff used to charge
exorbitant interest @ 5.50% per month. His categorical defence
was that apart from the said transaction, he had no other
transaction with the plaintiff. He denied the suit transaction in
toto. When the plaintiff was in the witness box, he was confronted
with Ex.B3 and Ex.B4 which are slips containing account-
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S.A.(MD)No.575 of 2007
statements. The plaintiff admitted that the handwriting found in
those two documents were very much his. In other words, the
plaintiff admitted that he was the author of those two documents.
They pertain to one “R.M”. The name of the defendant is “R.Muthu
Kutty”. The plaintiff claimed that these two documents did not
relate to the defendant but to one Ramaiah Murugan. The
defendant specifically challenged the plaintiff that there was no
such Ramaiah Murugan as claimed by him. The plaintiff did not
examine the so-called Ramaiah Murugan. Had the plaintiff really
had such transaction as claimed by him, it would not have been
difficult to have him examined. No such effort was taken by the
plaintiff in this regard. Therefore, I hold that “Ramaiah Murugan”
referred to by the plaintiff is a fictitious entity and that Ex.B3 and
B4 relate only to the defendant. In Ex.B3, it is mentioned that the
balance interest as on 01.05.2000 was Rs.6,600/- and that if
monthly interest was not paid, that would carry further interest.
Ex.B4 states that for the months of December, January, February,
March, April and May, the interest payable was Rs.6,600/- (1100 X
6). For the months of June and July also, there was a similar
monthly levy of Rs.1,100/-. The first appellate court had given a
categorical finding that the contents of Ex.B3 and Ex.B4 clearly
probablised the defence. In my view, the said finding is well
founded.
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S.A.(MD)No.575 of 2007
9.After a careful perusal of the entire evidence on record, I
come to the conclusion that the defendant had borrowed a sum of
Rs.20,000/- from the plaintiff. Ex.A1 pro-note was very much
signed by the defendant. It is obvious that the plaintiff had been
levying exorbitant interest on the defendant. Since the defendant
failed to meet the said demand, the plaintiff had filled up the
signed blank documents and on that basis, filed the instant suit.
The presumption raised against the defendant under Section 118
of the Negotiable Instruments Act had been rebutted by the
defendant and I hold that Ex.A1 though signed by the defendant
was not executed by him.
10.In the normal course, the result should have been the
dismissal of the second appeal. However, I proposed to adopt the
approach fashioned by the Hon'ble Supreme Court in the decision
reported in AIR 1951 SC 177 (Srinivas Ram Kumar v. Mahabir
Prasad). In Para 9, it was held as follows :
“...The rule undoubtedly is that the court
cannot grant relief to the plaintiff on a case for which
there was no foundation in the pleadings and which
the other side was not called upon or had an
opportunity to meet. But when the alternative case,
which the plaintiff could have made, was not only
admitted by the defendant in the written statement
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but was expressly put forward as an answer to the
S.A.(MD)No.575 of 2007
claim which the plaintiff made in the suit, there would
be nothing improper in giving the plaintiff a decree
upon the case which the defendant himself makes.
A demand of the plaintiff based on the defendant's
own plea cannot possibly be regarded with surprise
by the latter and no question of adducing evidence on
these facts would arise when they were expressly
admitted by the defendant in his pleadings.”
The defendant admitted that he had borrowed a sum of Rs.
20,000/- from the plaintiff. It was not his case that it was
returned. When I indicated that a decree will be passed in favour
of the appellant based on the admitted case of the defendant and I
also felt that he should not be driven to filing an execution petition
for realizing the decreetal amount from the legal heirs of the
deceased defendant, the learned counsel for the respondents took
instructions and submitted that the appellant can withdraw the
amount already deposited to the credit of E.P No.152 of 2004
before the trial court together with accrued interest. The
respondents would also make an additional payment of Rs.
25,000/- to the plaintiff.
11.In view of the undertaking given by the respondents before
me, the appellant is permitted to withdraw the amount deposited
by the defendant to the credit of E.P.No.152 of 2004 before the trial
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S.A.(MD)No.575 of 2007
Court together with accrued interest. The respondents are also
directed to pay a further sum of Rs.25,000/- to the plaintiff. The
counsel for the respondents submitted that he would make the
payment directly to the learned counsel for the appellant within a
period of two weeks from the date of receipt of a copy of this order.
He is permitted to do so. The learned counsel for the appellant
submitted that if he receives cash payment, he would send a
cheque directly to the appellant.
12.The Second Appeal is disposed of accordingly. No costs.
15.06.2021
Internet : Yes/No
Index : Yes/No
rmi/skm
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 Principal Sub Judge, Tenkasi.
2.The Principal District Munsif, Tenkasi.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.575 of 2007
G.R.SWAMINATHAN, J.
rmi/skm
Judgment made in
S.A.(MD)No.575 of 2007
15.06.2021
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