S.Sivasubramanian vs R
2021 Latest Caselaw 11644 Mad

                                                                          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 R1               : died
                                     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. The defendant filed written statement

controverting the plaint averments. The suit was laid on the strength of

Ex.A1 pro-note dated 01.08.2000. The plaintiff examined himself as P.W.1

and one of the attestors as P.W.2. He also marked Ex.A2-suit notice and

Ex.A3-acknowledgment card. The defendant examined himself as D.W.1

and one Thangasamy as D.W.2. On the side of the defendant, Ex.B1 to

Ex.B9 were marked. The 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.

Aggrieved by the same, the defendant filed A.S.No.32 of 2006 before the

Principal Sub Court, Tenkasi. By judgment and decree dated 03.11.2006,

the Judgment and decree passed by the trial Court was set aside and the

appeal was allowed and the suit came to be dismissed. Questioning the

same, this second appeal was filed by the plaintiff. The second appeal was

admitted on the following substantial question of law:-

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S.A.(MD)No.575 of 2007

“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.

3.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 his signature found in Ex.A1 with the one in Ex.A3 would

show that Ex.A1 was very much executed by the defendant.

4.The learned counsel further contended that the first appellate court

went completely wrong in comparing the signature found in Ex.A1 with the

signatures found in acquittance registers that were marked as court-exhibits.

According to him, the signature put by a person would vary depending upon

the situation and the circumstances. He submitted that the Court below

went completely wrong in placing reliance on Ex.B3 and Ex.B4 since 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 attempt of the defendant to cast

doubts on the credibility of P.W.2 will have to be brushed aside. This is https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.575 of 2007

because though P.W.2 became a tenant under the plaintiff only 1 ½ years

prior to his being examined, the fact remains that P.W.2 as well as P.W.1

hail from the very same village and are also relatives. 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.

5.Per contra, the learned counsel appearing for the respondents

submitted that the impugned judgment of the first appellate court does not

call for any interference. However, he took instructions from the

respondents in my presence and submitted that the respondents will not

have any objection for the appellant to withdraw whatever amount that was

deposited by the original defendant R.Muthu Kutty to the credit of the

execution proceedings along with the accrued interest. He also would state

that the respondents would take a demand draft for a sum of Rs.25,000/-

and pay the same directly to the counsel for the appellant within a period of

two weeks from the date of receipt of a copy of this order. The learned

counsel states that even if this second appeal is dismissed, the respondents

would honor the undertaking given before this Court.

6.I carefully considered the rival contentions and went through the

evidence on record. While the defendant in the written statement had https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.575 of 2007

categorized Ex.A1 as a concocted document, he had not specifically denied

the signature attributed to him. I also sustain the contention of the learned

counsel appearing for the appellant that the comparison of the signature

found in Ex.A1 could not have been made with the signatures found in the

acquittance registers. It is true that both are admittedly the signatures of the

deceased defendant. But then, comparison of the disputed signature with an

admitted signature may not always be in order. 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”. There are counsel who exhibit a similar care while signing the

vakalat indicating acceptance. It is said that the legendary lawyer

Shri.V.L.Ethiraj would sign the vakalat only during auspicious hours! But

when giving “no objection” when the client is demanding change of

vakalat, any lawyer would scribble in anger. That would also be his

admitted signature. While signing the copy application form or when

endorsing “noted” or “received”, the signature is bound to be casual or even

careless. No prudent person would compare a disputed signature with an

admitted signature found in such documents. For this reason, I hold that the

signature found in Ex.A1 could not have been compared with the signatures

in the acquittance registers.

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S.A.(MD)No.575 of 2007

7.The institution of the suit was preceded by Ex.A2-notice. Ex.A3 is

the acknowledgement card which the defendant had signed. 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 answer the substantial question of law

framed in this appeal in favour of the appellant, that may not be sufficient to

upset the impugned judgment passed by the first appellate court.

8.This is because when the plaintiff was in the witness box, he was

confronted with Ex.B3 and Ex.B4 which are slips containing account-

statements. The plaintiff had admitted that those two documents were very

much in his handwriting. In other words, the plaintiff admitted that he was

the author of those two exhibits. They pertain to one “R.M”. The name of

the defendant is “R.Muthu Kutty”. The plaintiff claimed that these two

documents did not pertain to the defendant and that they pertained to one

Ramaiah Murugan. The defendant specifically challenged the plaintiff that

there was no such Ramaiah Murugan as claimed by the plaintiff. In these

circumstances, if the plaintiff had actually had a transaction with the

so-called Ramaiah Murugan, it would not have been difficult to have him

examined. No such effort was taken by the plaintiff. Therefore, I hold that

Ex.B3 and B4 relate to the defendant. The defendant in his evidence

admitted that he had borrowed a sum of Rs.20,000/- from the plaintiff in https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.575 of 2007

November 1999 and that he was paying exorbitant for the same and that

apart from the said borrowal, he had had no other transaction with the

plaintiff. In Ex.B3, it is mentioned that the balance interest as on

01.05.2000 was Rs.6,600/-. Interest on interest was added and by

01.06.2000, it became Rs.7898/-. Ex.B3 stated that if monthly interest was

not paid, that would carry interest. Ex.B4 states that for the month of

December, January, February, March, April and May, the interest payable

was Rs.6,600/-. Hand loan of Rs.100/- was taken and the liability

accumulated to Rs.6,700/-. Interest for the said amount was quantified at

Rs.201/- and the overall liability mounted to Rs.6901/-. For the month of

June, the interest was Rs.1,100/- and the liability was arrived at Rs.8001/-.

However, concession was shown and the figure was reduced to Rs.8000/-!!.

Rs.8000/- carried an interest of Rs.241/- and the liability fattened to

Rs.8241/-. For the month of July, interest was again Rs.1100/- and the

balance amount payable was written down as Rs.9341/-. The first appellate

court had given a categorical finding that the defence of the defendant stood

probablized in view of the contents of Ex.B3 and Ex.B4. In my view, the

said finding is well founded.

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 https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.575 of 2007

the plaintiff. It is not his case that this principal amount was returned.

Ex.A1 pro-note was very much executed by the defendant. It is obvious that

the plaintiff had collected exorbitant interest from the defendant. Since at

some point of time, the defendant refused to continue to pay the exorbitant

interest, the plaintiff filled up the signed blank documents and on that basis,

filed the instant suit. Though I answer the substantial question of law in

favour of the appellant and I disagree with the conclusion of the first

appellate court as regards the signature found in Ex.A1, I sustain the

impugned judgment and decree for the other reasons given by the first

appellate court.

10.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 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.

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S.A.(MD)No.575 of 2007

11.The Second Appeal is disposed of accordingly. No costs.

15.06.2021

Internet : Yes/No Index : Yes/No rmi/skm

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.

https://www.mhc.tn.gov.in/judis/

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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