Madras High Court
J.Lakshmanan vs S.Jawahar on 21 January, 2022
SA NO.287 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21 / 01 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.287 OF 2017
AND CMP NO.6807 OF 2017
J.Lakshmanan ... Appellant
VS.
S.Jawahar ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 15.11.2016 in A.S.No.2 of
2013 on the file of District Judge, Nilgiris, Udhagamandalam reversing
the judgment and decree dated 25.08.2012 in O.S.No.49 of 2010 on the
file of Subordinate Judge, Nilgiris, Udhagamandalam.
For Appellant : Ms.AL.Ganthimathi
For Respondent : Mr.M.L.Ramesh
JUDGMENT
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SA NO.287 OF 2017
Inveighing the reversal of decree of dismissal made by the
First Appellate Court in a Suit for recovery of money on promissory note,
the defendant has preferred the above Second Appeal.
2.The respondent / plaintiff pleaded that the appellant /
defendant borrowed a sum of Rs.90,000/- on 19.05.2008 from him and
executed a promissory note in his favour promising to refund the amount
on demand with interest @ 12% per annum. Since he failed and
neglected to repay the amount, inspite of repeated demands, he sent a
legal notice on 16.02.2009 and the same was returned on 24.02.2009 and
he filed the present Suit for Rs.1,09,232/- together with interest.
3.Denying the allegations, the appellant would plead by way
of written statement that he had not borrowed any amount from the
respondent at any point of time. He is working as a Teacher in
Government Higher Secondary School and he has no necessity to borrow
money from anybody. The alleged promissory note was not executed by
the respondent / defendant at any point of time. There was no transaction
between the appellant and respondent and all the allegations made in the
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SA NO.287 OF 2017
plaint are devoid of truth and respondent / plaintiff is put to strict proof.
The appellant does not owe any money and the respondent was trying to
misuse the promissory note by creating forged signature. The cause of
action alleged was imaginary and not true.
4.The Trial Court tried the Suit on the issues as to whether
the defendant had not executed the Suit promissory note, whether no
consideration, whether the appellant's signature was forged, whether the
respondent is entitled to get the decree as prayed for. During trial, the
respondent examined him as P.W.1 and marked Suit promissory note,
legal notice and returned covers as Exs.A1 to A3 and examined the Head
Master of Government Higher Secondary School, whether the appellant
works as P.W.2 and marked attendance register containing the signature
of the appellant of the year 2007-2009 as Exs.X1 to X3 and xerox copies
of pay acquittance register for the months of January 2007, May 2007
and 2008 and November 2007 and signatures of the appellant in the
acquittance register as Exs.A4 to A14. The appellant did not choose to
enter the witness box and has not let in any evidence in defense.
5.The Trial Court finding that the respondent / plaintiff who
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SA NO.287 OF 2017
admitted that no one had attested Ex.A1 - promissory note and that he
did not send legal notice to residential address of the appellant in spite of
knowing the same and that he could not speak about who scribed the
promissory note had failed to discharge the burden that it was executed
by the appellant herein and also passing of consideration. Though the
signature of the appellant / defendant was admitted by P.W.2 -
Headmaster, the respondent failed to take steps to send to Forensic
Department for comparison and opinion and failed to discharge the
burden to prove the signature which was disputed by the appellant /
defendant. Though the defendant did not come to witness box, since the
plaintiff failed to prove his claim and hence dismissed the Suit.
6.On appeal, the First Appellate Court considering the
evidence and by comparing disputed signatures found in the promissory
note with the admitted and proved signature set aside the decree and
judgment of the Trial Court and decreed the Suit.
7.Aggrieved over the same, the appellant / defendant
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SA NO.287 OF 2017
preferred the above Second Appeal on the following questions of law:-
(i) Whether the learned District Judge is
correct in granting a decree without any reasons for
reversing the well considered findings of the Trial
Court ?
(ii) Whether the learned District Judge is
correct in comparing the signatures without sending
it for expert evidence ?
(iii) Whether the learned District Judge is
correct in comparing the signatures in the Suit
promissory note with Ex.A4 to A14 which are not
originals ?
8.On notice, respondent entered appearance through his
counsel and both the sides consented to argue the above Second Appela
on the legal issues arising out of the questions of law framed in the
Memorandum of Grounds of Second Appeal.
9.The learned counsel for the appellant would vehemently
contend that there is absolutely no evidence to prove that the disputed
promissory note was signed by the appellant and that was supported by
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SA NO.287 OF 2017
consideration. The signature can be proved by getting expert opinion,
which the respondent failed to discharge. The First Appellate Court erred
in comparing the signatures with xerox copies of the documents and not
originals. Lack of pleadings for payment of interest and delay in issuing
notice and also delay of filing the Suit after issuing the notice would
probabilise rebuttal of presumption which is specifically made. Inspite of
knowing the residential address the respondent has not sent any notice as
admitted by him and there was no cause of action to file a Suit. Without
considering the least principles of law, the First Appellate Court
compared the signatures with the signatures found in xerox copies of
documents and erroneously decreed the Suit and hence, the decree and
judgment passed by the First Appellate Court shall be set aside.
10.Per contra, the learned counsel for the respondent relying
on the judgment of this Court in S.A.No.653 of 2006 dated 01.04.2014
and would contend that the respondent as P.W.1 has categorically proved
that the respondent herein had subscribed his signature and borrowed
the amount. The presumption raised by him was not rebutted by the
appellant in evidence. The First Appellate Court under Section 73 of the
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Evidence Act is empowered to compare the signature and compared with
the admitted signatures found in vakalat, summons and written statement
and not with the signatures found in the xerox copies of the documents.
The defendant did not enter the witness box to probablise his case and
therefore, the First Appellate Court has rightly decreed the Suit and there
is no scope for interference.
11.This Court paid its anxious consideration to the
submissions made by both sides.
12.The Suit is one for recovery of money on promissory note.
The respondent / plaintiff would plead that the appellant / defendant has
borrowed a sum of Rs.90,000/- on 19.05.2008 and let in evidence in
support of plea and marked the promissory note as Ex.A1. It is his
evidence that the signature found in the promissory note was made by the
appellant and that he borrowed the money. He would further examine the
Headmaster of the School, where the defendant worked as Vocational
Instructor and marked the attendance register containing signatures of the
appellant for proving the fact that the appellant worked in that school and
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the signatures were made by him during the relevant period of borrowal.
13.The evidence of P.W.1 supported by P.W.2 would go to
show the appellant was working at Government School during the period
the promissory note was executed. Further, the signatures of the appellant
stood proved in the attendance register. There is no contrary evidence to
the fact that the signatures found in Exs.X1 to X3 are not the signatures
of the appellant / defendant. Admittedly, the respondent as P.W.1 would
categorically depose that the appellant had subscribed his signature and
consideration was passed. On the contrary, the appellant has taken a
stand in the written statement that the signature was forged. Section 118
of the Negotiable Instruments Act clearly mandates that unless the
contrary is proved that when signature is admitted, the passing of
consideration also stood proved. The plaintiff had let in evidence to prove
the execution and signature of the defendant. Once the presumption is
raised by the plaintiff in evidence, the burden to prove the contrary shifts
on the shoulders of the defendant. It is true to state that it is difficult to
prove the negative. It can only be rebutted by giving evidence and
probabilising the defense that there was no necessity to borrow and no
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such circumstances existed leading to the alleged execution of promissory
note.
14.But, in the instant case, the appellant in his written
statement would set up a case that he had not borrowed and that he had
not executed any promissory note and the promissory note was created by
forging his signature. But, in order to prove his pleadings, he has to enter
the witness box to prove the same. Without adducing any contrary
evidence that the signature found in the disputed promissory note was not
made by him and that the signatures found in the attendance registers
cannot be compared as they will not match with his actual signature, the
appellant stayed silent. The appellant did not let in any evidence rebutting
the presumption in support of his defense and prove the contrary. If the
burden is discharged, that will shift back to the plaintiff. Thereafter, the
issue will become academic and the Court can consider the weightage of
evidence and arrive at a decision. But when there is evidence let in on
behalf of one party, it shall be presumed that the presumption raised by
the other party is probable. In the absence of any rebuttal of presumption
by defendant through oral or documentary evidence, the First Appellate
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Court found that the case of the plaintiff was probabilised.
15.On the other hand, the finding of the Trial Court that
there were no witnesses for proving the execution of the promissory note
and for passing of consideration is on erroneous basis, for, it is not
mandatory that the promissory note shall be attested by witnesses. When
law does not compel attestation of signature, it shall rely only on the
evidence of the holder of the promissory note. Once the presumption of
execution of the negotiable instrument stood established, passing of
consideration shall also be presumed. The Trial Court solely based its
finding on non-examination of witnesses as to execution or scribe of the
promissory note is fatal. The finding of the Trial Court, in the opinion of
this Court is erroneous and the finding of the First Appellate Court is
based on sound principles of law.
16.Secondly, it has to be analysed as to whether the Court
under Section 73 of the Evidence Act is competent to compare the
disputed signature with the admitted signature. It is the contention of the
learned counsel for the appellant that the disputed signature was
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compared with the signatures found in the xerox copies marked as
Exs.A4 to A14. But the materials reveal that Ex.X1 to X3 are the
attendance registers produced from school by the competent authority,
the Headmaster of the school, where the appellant worked during relevant
period. It is not disputed by the appellant / defendant and no contrary
evidence was adduced that the signatures cannot be compared. It is not
true to state that the signatures were not admitted by the defendant, but it
was received, admitted and proved in evidence by the plaintiff's side
through the competent witness. There is no legal bar for the Court to
compare the signatures with proved documents. It is also pertinent to note
that apart from Exs.X1 to X3, the other admitted documents are the
vakalat, written statement and summons. Normally, comparison with
these documents could be opposed by the plaintiff as the defendant has
an opportunity to disguise his signatures in order to defeat the plaintiff's
right. Here the situation is different, where the plaintiff insisted the
signatures be compared. Obviously, the defendant cannot allege prejudice
against such comparison as the signatures are admitted signatures.
Therefore, as contended by the appellant, the comparison of signatures by
the First Appellate Court were not with the signatures found on the xerox
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copies of the documents marked as Exs.A4 to A14, but the admitted
signatures found on vakalat, summons, written statement and Exs.X1 to
X3. The Court is competent to compare the signatures.
17.This Court in CHELLADURAI VS. VELMURUGAN
[S.A.NO.653 OF 2006 DECIDED ON 01.04.2014] relied on by the
learned counsel for the respondent would lay down the following
propositions:-
"i) In case, a party, whose signature is disputed,
wants his own signature found in the documents that
came into existence much later in point of time or after
the dispute has arisen and the same is opposed by the
party relying on the document containing the disputed
signature, it shall be prudent for the court not to make
such a comparison.
ii) On the other hand, if the person, who relies on
the disputed signature, does have no objection for
comparing it with, or seeks comparison of the same
with, the admitted signature contained in a document
even though the same came into existence after the
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dispute has arisen as he believes that the signatures are
not disguised and they are good for comparison, then,
the person disputing his signature in the document in
question cannot have any valid objection for making
such comparison.
iii) Only when the party who relies on the
disputed document expresses an apprehension that the
document of recent origin or the farthest document
shall not be suitable for making comparison, the
admitted or proved contemporary signatures alone
should be used for such comparison."
18.The said proposition squarely apply to the case on hand.
Hence, the questions of law are answered against the appellant and in
favour of the respondent.
19.In fine, the Second Appeal merits no consideration and
accordingly dismissed confirming the judgment and decree dated
15.11.2016 passed in A.S.No.2 of 2013 by the learned District Judge,
Nilgiris, Udhagamandalam. No costs. Consequently, connected civil
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miscellaneous petition is closed.
21 / 01 / 2022
Index : Yes/No
Internet : Yes/No
TK
To
1.The District Judge
Nilgiris.
Udhagamandalam.
2.The Subordinate Judge
Nilgiris.
Udhagamandalam.
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SA NO.287 OF 2017
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SA NO.287 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.287 OF 2017
21 / 01 / 2022
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