Madras High Court
Mohandhas vs Ponnaiyan on 16 June, 2021
S.A.(MD)No.862 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.862 of 2014
Mohandhas ... Appellant
Vs.
Ponnaiyan ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the decree and judgment passed in A.S.No.39 of 2005 dated 11.06.2014,
on the file of the Sub-Ordinate Court, Padmanabhapuram and confirming he
decree and judgment passed in O.S.No.66 of 2004 dated 21.12.2004 on the file
of the Additional District Munsif, Padmanabhapuram and allow the second
appeal.
For Appellant : Mr.K.Sreekumaran Nair
For Respondent : Mr.V.M.Balamohan Thampi
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S.A.(MD)No.862 of 2014
JUDGEMENT
The plaintiff in O.S.No.66 of 2004 on the file of the District Munsif
Court, Padmanabhapuram is the appellant in this second appeal. The plaintiff
filed the said suit for recovering a sum of Rs.80,000/- from the defendant. The
suit was laid on the strength of Ex.A1/promissory note dated 23.03.2001. The
case of the plaintiff is that the defendant borrowed the said sum of Rs.80,000/-
from the plaintiff on 23.03.2001 and executed Ex.A1/promissory note. The
defendant had agreed to repay the same with interest at the rate of 24% per
annum on demand. Since the defendant evaded repayment, the plaintiff had to
file the said suit. The defendant filed his written statement denying the plaint
averments. The defendant categorically denied the execution of the suit
promissory note.
2.The trial court framed the necessary issues and the plaintiff examined
himself as P.W.1. Since the signature in the promissory note was disputed, the
matter was referred for expert opinion and the expert was examined as P.W.2.
Exs.A1 to A8 were marked on the side of the plaintiff. The defendant
examined himself as D.W.1 and marked Ex.B1 dated 29.09.1978, which is a
sale deed executed in favour of the defendant.
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S.A.(MD)No.862 of 2014
3.The learned Trial Munsif by judgment and decree dated 21.12.2004
dismissed the suit. Questioning the same, the plaintiff filed A.S.No.39 of 2005
before the Sub Court, Padmanabhapuram. By judgment and decree dated
11.06.2014, the appeal was also dismissed. Challenging the same, this second
appeal came to be filed.
4.The second appeal was admitted on the following substantial questions
of law:-
“a) After having found that the signature in Ex.A1
promissory note was that of the defendant on the basis of
evidence of P.W.1, P.W.2, report of expert and C.W.1, whether the
courts below are right in rejecting the case of plaintiff on
irrelevant grounds?
b) When execution of Ex.A1 was proved by plaintiff, the
non payment of consideration had to be proved by the defendant.
In such circumstances, whether the courts below are right in
placing the burden to prove consideration on the plaintiff?”
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S.A.(MD)No.862 of 2014
5.The learned counsel appearing for the appellant submitted that since
the defendant disputed his signature found in Ex.A1, the matter was referred
for expert opinion. The handwriting expert was called upon to make a
comparison of the signatures found in Exs.A1, A5 and B1. Since Ex.B1 was
executed in the year 1978, it cannot be said to be a contemporaneous document
and the expert confined his comparison to Exs.A1 and A5 alone. The opinion
of the handwriting expert is that the disputed signature is that of the defendant.
The trial court as well as the first appellate court had given a categorical
finding that the defendant had executed Ex.A1. The learned counsel would
point out that the first appellate court is the final court of fact and that
therefore, the said finding cannot be re-appreciated. Once it is concluded that
Ex.A1 was executed by the defendant, presumption under Section 118 of the
Negotiable Instruments Act will get triggered. In the case on hand, the
defendant had not adduced any rebuttal evidence and therefore, the courts
below ought to have decreed the suit as prayed for. The courts below had been
swayed by irrelevant considerations. It is true that the plaintiff straightaway
instituted the suit without issuing any suit notice. But there is no requirement
in law that a money suit should be preceded by a suit notice. There was a real
threat that the defendant may flee or alienate his property if alerted and that is
why, the suit had to be filed without giving any suit notice. The other reason
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S.A.(MD)No.862 of 2014
given by the courts below is that the attestors had not been examined. The
learned counsel would point out that Section 68 of the Evidence Act will not
have any application to the case on hand. A promissory note does not require
any attestation. Therefore, non examination of the attester cannot be put
against the plaintiff. The learned counsel therefore submitted that judgments of
the courts below are clearly faulty and called upon this Court to answer the
substantial questions of law in favour of the appellant and allow the second
appeal by reversing the impugned judgments and decrees.
6.Per contra, the learned counsel appearing for the respondent submitted
that the impugned judgments do not call for any interference and prayed for
dismissal of the appeal.
7.I carefully considered the rival contentions and went through the
evidence on record. It is true that the courts below have given a finding that
Ex.A1 was executed by the defendant. Since the suit filed by the plaintiff came
to be dismissed, there was no occasion for the defendant to challenge this
finding. Therefore, this Court has to necessarily see if this finding can be said
to be sound. The learned counsel for the respondent would state that the
findings that Ex.A1 was executed by the defendant is perverse.
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S.A.(MD)No.862 of 2014
8.This is because, the findings of the courts below are anchored on the
opinion of the expert. The handwriting expert had compared the disputed
signature with the signature found in Ex.A5. Ex.A5 is a hypothecation. When
it was attempted to mark the said document through the defendant, he
categorically denied the signature found in Ex.A5. Therefore, the signature
attributed to the defendant in Ex.A5 is also a disputed signature. A disputed
signature can be compared by the handwriting expert only with an admitted
signature. Two disputed signatures cannot be compared and no finding can rest
on such a comparison. This is all the more so because when P.W.1 was cross
examined, he categorically admitted that except the suit transaction the
defendant did not have any other transaction with him. This being the definite
stand of the plaintiff, Ex.A5 cannot be taken as an admitted document.
8.The defendant had clearly denied having executed Ex.A1. Therefore,
the burden to show that Ex.A1 was executed only by the defendant is only on
the plaintiff. The courts below had proceeded in the matter based on the
opinion of the handwriting expert, which as I have already held is intrinsically
unsound. The substantial questions of law have been framed on the footing
that Ex.A1 was executed by the defendant. In view of the foregoing
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S.A.(MD)No.862 of 2014
discussions, I hold that it has not been established that Ex.A1 was executed by
the respondent. The substantial questions of law are answered against the
appellant and the second appeal is dismissed. No costs.
16.06.2021
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.
To:
1.The Subordinate Court,
Padmanabhapuram.
2.The Additional District Munsif Court,
Padmanabhapuram.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.862 of 2014
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.862 of 2014
16.06.2021
https://www.mhc.tn.gov.in/judis/
