Madras High Court
N.Ramalingam vs M.Ramalingam on 22 September, 2022
S.A.No.836 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.836 of 2017
and
C.M.P.No.20871 of 2017
N.Ramalingam ...Appellant
Vs
M.Ramalingam ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgment and decree dated 24.09.2013 in A.S.No.3 of 2013 on the file of
the III Additional District and Sessions Court, Cuddalore, Vridhachalam
confirming the judgment and decree dated 24.08.2011 in O.S.No.54 of 2010
before the Additional Sub Court, Vridhachalam.
For Appellant : Ms.R.Meenal
For Respondent : Mr.D.Shivakumaran
JUDGEMENT
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S.A.No.836 of 2017
The unsuccessful defendant before the Courts below in a suit filed for
recovery of money under a promissory note is the appellant before this
Court.
2. The facts necessary for disposing of the second appeal are
herein below narrated and the parties are referred to in the same litigative
status as before the Courts below:
Plaintiff's case:
The plaintiff had filed the suit O.S.No.54 of 2010 on the file of the
Additional Subordinate Court, Virudhachalam for recovery of a sum of
Rs.1,37,106/- with costs and subsequent interest. It is the case of the
plaintiff that the defendant had borrowed a sum of Rs.54,000/- from one
Latha, W/o. Kuzhanthaivel on 07.04.2007 and had executed a promissory
note agreeing to repay the amount with interest @ 12% per annum and once
again another sum of a like amount was honoured on 11.04.2007 for which
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S.A.No.836 of 2017
another promissory note was executed. The said Latha on 02.03.2010 had
made over the two promissory notes in favour of the plaintiff after receiving
the entire principal and interest. The plaintiff would submit that despite
repeated demands, the defendant had not come forward to repay the said
amount, constraining the plaintiff to issue a legal notice dated 08.03.2010.
The said legal notice was received by the defendant on 10.03.2010, for
which, a reply notice was issued by him containing false allegations.
Therefore, left with no other alternative, the plaintiff has come forward with
the above suit.
Written statement of the defendant:
The defendant denied the allegations contained in the plaint and had
in clear and categoric terms stated that he had not executed the promissory
note in favour of the said Latha nor had he received any amount stated
therein. It is stated that on 15.04.2004, the defendant's son Sankar had
executed a Mortgage Deed in favour of Latha's husband, Kuzhanthaivel, in
which, the defendant had signed as a witness. Since the son of the
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S.A.No.836 of 2017
defendant had not discharged the said loan, the said Kuzhanthaivel had
asked the defendant to discharge the loan. However, the defendant had
refused to comply with the demand stating that it was his son who had
borrowed the money, therefore, he would not discharge the loan. Angered by
the response, it appears that the said Kuzhanthaivel has forged the two
promissory notes in the name of his wife latha. The defendant had not
borrowed any amount from the said Latha nor had he executed the
promissory note.
Trial Court:
3. The learned Additional Subordinate Judge, Vridhachalam had
framed the following issues:
1/ thjp jhthtpy; nfl;Ls;s bjhif
U:/1.37.106-?k;. mjw;F gpd;tl;oa[k; mtUf;F
fpilf;ff;Toajh?
2/ 7/4/2007 kw;Wk; 11/4/2007 njjpapl;l
,U flDWjpr;rPl;LfSk; g[idag;gl;l MtzkhFk;
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S.A.No.836 of 2017
vd;Wk;. nkw;go Mtz';fisa[k;. gpujpthjpa[k;
bjhif mile;J bfhz;L vGjpf;bfhLf;fhjjhy; nkw;go
Mtz';fspy; fPH; vg;ghpfhuKk; thjpf;F
fpl;Ltjpy;iy vd;W gpujpthjp TWtJ rhpah?
4. The plaintiff had examined himself as P.W1 and one
Renganathan, the witness in the promissory note as P.W2 and Exs.A1 to A7
were marked on the side of the plaintiff. The defendant had examined
himself as D.W1 and marked Exs.B1 to B3. The Trial Court, after
considering the evidence, decreed the suit as prayed for.
Lower Appellate Court:
5. Challenging the same, the defendant had filed an appeal in
A.S.No.3 of 2013 on the file of the III Additional District and Sessions
Judge, Cuddalore at Vridhachalam. The lower Appellate Court had framed
the following points for consideration.
“1. Whether the defendant executed the said
promissory note in favour of the said Latha and in
turn the said Latha made over to the plaintiff as
alleged?
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S.A.No.836 of 2017
2. Whether the suit pro-notes are forged one?
3. Whether the appellant is entitled to the
relief as prayed for?
4. To what other relief the appellant is
entitled to?”
The Lower Appellate Court confirmed the judgment and decree of the trial
Court and dismissed the appeal. Challenging the same, the defendant is
before this Court.
Substantial Questions of law:
6. This second appeal has admitted by this Court on 12.12.2017
on the following questions of law:
“a) Whether in law the Courts below are right in
failing to see that the suit pro-notes were forged and that
once the appellant had disputed execution, the
respondent ought to have gotten examined by an expert
and that the Court should not assume the role of a
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S.A.No.836 of 2017
handwriting expert?
b) Whether in law the Courts below were not
wrong in concluding that the non examination of Latha
was not fatal to the respondent's case when only she
could have spoken about the advancing of the loan, the
execution of the pro-notes and the assignment in favour
of the respondent?”
7. Submission of the learned counsel for the appellant/defendant:
Ms.Meenal, learned counsel appearing on behalf of the appellant /
defendant would submit that once the defendant had denied the signatures
in the suit promissory note, the plaintiff was bound to prove the same. This
exercise has not been done by the plaintiff. It is only when this onus is
discharged by the plaintiff, the burden shifts to the defendant. She would
submit that the witness to Exs.A1 and A2- promissory notes who is also the
witness to Exs.A3 and A4, made over documents has been examined as
P.W2. In his cross examination, the witness has stated as follows:-
“ve;bje;j Mtz';fspy; ehd; rhl;rp ifbaGj;J
nghl;Ls;nsd; vd;W vdf;Fj; bjhpahJ/ ve;j
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S.A.No.836 of 2017
Mtzj;jpw;fhf ehd; ePjpkd;wj;jpw;F rhl;rp brhy;y
te;njd; vd;w tpguk; vdf;Fj; bjhpahJ/
FHe;ijntYk;. yjht[k; vd;dplk; ifbaGj;J
nfl;lhh;fs;. ehd; ifbaGj;J nghl;nld;/ vdf;F ntW
vJt[k; bjhpahJ/ FHe;ijntY vdf;F cwtpdh;
vd;gjhYk;. vdJ rpj;jg;ghtpd;; ngj;jpf;F kUkfd;
vd;gjhYk;. jtwhd Mtzj;jpy; ehd; ifbaGj;J nghl;L
cs;nsd; vd;why; rhpay;y”.
Therefore, from this admission, it is clear that the promissory note is a
fabricated one. She would further submit that the defendant had filed
Exs.B1 to B3 to show that the said Latha did not have the wherewithal to
extend hand loan of a sum of Rs.1,08,000/-, since she had instituted the
proceedings claiming maintenance from her husband, Kuzhandaivel in
H.M.O.P.No.151 of 2008 on the file of the Principal Subordinate Court,
Virudhachalam. She would draw the attention to Ex.B3, which is the
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S.A.No.836 of 2017
affidavit filed in support of the said petition, wherein she had stated as
follows:-
“nkYk; vjph;kDjhuh; Mz;ik Fwpj;J ehd;
jtwhf ngrpajhf vjph;kDjhuh; kDtpy; Twpa[s;s
mk;r';fs;aht[k; jtwhFk;/ vjph;kDjhuUk; mry;
kDjhf;fy; bra;j fhyk; Kjy; vd;ida[k;. vd; ,U
FHe;ijfisa[k; vt;tpj rtul;rida[k; bra;ahky;
thHe;JtUfpwhh;/ vjph;kDjhuh; bra;iffs; fhuzkhf
ehDk; vd; FHe;ijfSk; czt[ kw;Wk; ,ju mog;gil
njitfSk; fpilf;fhy; fc&;l$Ptdk; bra;JtUfpd;nwhk;/”
She would therefore submit that once the said Latha has clearly stated that
she did not have the wherewithal, it clearly proves that she could not have
extended the huge sum of Rs.1,08,000/- as loan.
8. Submission of the learned counsel for the respondent /plaintiff:
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S.A.No.836 of 2017
Per contra, Mr. D.Shivakumaran, learned counsel appearing on behalf
of the plaintiff would submit that the Trial Court as well as the lower
Appellate Court had compared the signatures of the defendant in Exs.A1 to
A4 with the admitted signatures in Ex.B1. A mere perusal of the same
would indicate that it is the very same person, who has affixed the signatures
in these documents. The defendant had however not taken any steps
whatsoever to have the signature verified by an expert. Therefore, an
adverse inference has to be drawn against him. He would further submit
that the said Latha had the wherewithal to extend the huge loan of
Rs.1,08,000/-. It is the contention of the learned counsel that Exs.A3 and
A4 are of the year 2010 whereas the said Latha has extended the loan to the
defendant in the year 2007. Further, the defendant had not produced the
main petition filed by the said Kuzhandaivel before the Subordinate Judge,
seeking divorce since allegation on which the petition for divorce had been
filed is that the Latha has squandered the money that has been sent by the
Kuzhandaivel, who was working abroad by extending credit facilities to
different persons. This would only go to prove that the said Latha had given
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S.A.No.836 of 2017
a loan to the defendant. Once the plaintiff has proved the signature then the
onus rests on the defendant to disprove the passing of the consideration. The
defendant and the family of Latha are well known to each other, since the
defendant's son had borrowed money from the said Kuzhanthaivel in the
year 2004 and admittedly, the same has not been repaid. The plaintiff has
also signed the document as a witness. Therefore, he would submit that
since the plaintiff has proved the execution of the promissory note and as the
defendant has not able to establish the fact that the consideration has not
passed, the judgment and decree of the Courts below has to be sustained and
the second appeal has to be dismissed.
9. Discussions:
The primary defence of the defendant is that he had not executed the
promissory notes in favour of the said Latha. To disprove the same, the
defendant has not taken any steps to have the signatures verified by a
handwriting expert. The Trial Court had compared the admitted signature in
Ex.B1 with the disputed signatures in Exs.A1 to A4 and held that a mere
perusal of the same would show that that signatures have been affixed by
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S.A.No.836 of 2017
the very same person. I do not find any reason to disagree with this finding.
Once the signatures have been proved to be that of the defendant, it is for the
defendant to disprove the same, which the defendant had failed to do so.
Section 73 of the Indian Evidence Act empowers the Court to compare the
signature of a person, which is in dispute with his admitted signature. The
Courts below have exercised this power available under the Act. It is not in
every case that the signature has to be examined by an expert, it can be seen
that when admitted documents of the same person is produced, it is open to
the Court to compare it with the disputed signature, the parties need not be
compelled to have the signature examined by the expert. It is the defendant
to come forward with the categoric case that the signatures are forged.
Therefore, he should have taken steps to have the same examined by an
expert, particularly, when the signature had been admitted by P.W2, the
witness to all the documents, namely, Exs.A1 to A4. Therefore, the
substantial question of law No.1 is answered against the defendant. The
plaintiff has examined the witness to the documents Exs.A1 to A4 as P.W2
and the witness has deposed to the effect that he had signed the document.
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S.A.No.836 of 2017
In his cross examination, he had only stated that he was not aware about the
contents or the nature of the document. However, he has admitted both the
signature of the defendant as well as his signature as a witness. Once the
plaintiff has been able to prove the fact that the signatures contained in
Exs.A1 to A4 and the signatures in Ex.B1 are that of the same person and
also by examining the attesting witness, the failure to examine the said Latha
is not fatal to the case of the plaintiff. Another reason to accept the case of
the plaintiff that Latha had extended the loan to the defendant, since it is the
defendant's case that Latha's husband Kuzhanthaivel had instituted
proceedings for divorce and one of the reasons for seeking the divorce is the
fact that she had squandered away the money sent by him by extending
hand loans to persons which have turned into bad debts. It was well open to
the defendant to summon the said Latha atleast to establish the fact that the
promissory notes were not made over to the plaintiff after receiving
consideration. Therefore, the substantial question of law No.2 is also
answered against the defendant. In the result, the second appeal fails and
consequently, the second appeal is dismissed. There shall be no order as to
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S.A.No.836 of 2017
costs. Consequently, connected miscellaneous petition is closed.
22.09.2022
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The III Additional District and Sessions Judge, Cuddalore,
Vridhachalam
2. The Additional Sub Judge, Vridhachalam.
3. The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.836 of 2017
P.T.ASHA, J.,
srn
S.A.No.836 of 2017
and
C.M.P.No.20871 of 2017
22.09.2022
https://www.mhc.tn.gov.in/judis
