Madras High Court
G.Vasu vs Prabhavathy on 1 February, 2024
S.A.No.387 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2024
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.387 of 2013
G.Vasu ... Appellant
Vs.
1.Prabhavathy
2.Manimegalai ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the Judgment and Decree of the Principal District Judge of
Tiruvallur dated 03.07.2012 in A.S.No.70 of 2010 confirming the Judgment
and Decree of the Subordinate Judge of Ponneri dated 04.03.2009 in
O.S.No.59 of 2006.
For Appellant : Mr.Vigneshwar,
for Mr.V.Nicholas
For Respondents : Mr.E.Prabu
JUDGMENT
The present second appeal arises out of the Judgment and Decree
dated 03.07.2012 passed in A.S.No.70 of 2010 on the file of the learned
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Principal District Judge, Tiruvallur in confirming the judgment and decree of
the court of Subordinate Judge, Ponneri in O.S.No.59 of 2006 dated
04.03.2009.
2. For the sake of clarity and convenience, the parties will be
referred to as their ranks in the suit.
3. O.S.No.59 of 2006 is a suit for recovery of money on the foot of
promissory note. It is the case of the plaintiff that on 10.05.2005, the
defendants borrowed a sum of Rs.1,00,000/- agreeing to repay the amount
together with interest at the rate of 24% per annum. The purpose of the loan
was to settle the family debts, education of their daughter and for other
expenses. Despite oral demand, since the defendants did not repay the
amount, the plaintiff presented the suit.
4. The defendants filed separate written statements. According to
the first defendant, he had not borrowed any amount from the plaintiff and
the signature found in the document is not his signature. Similar defence was
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taken by the second defendant. On the basis of these pleadings, the following
issues were framed:
“1/ tHf;F K:yk; cs;sjh>
2/ jhth epiyf;fj;jf;fjh>
3/ jhthtpy; nfhhpathW thjpf;F bjhif fpilf;ff;Toajh>
4/ thjpf;F fpilf;ff;Toa ,ju ghpfhu';fs; vd;d>”
5. On the side of the plaintiff/Prabavathy, she examined herself as
PW1 and the attesting witness/Mr.Sampath as PW2 and Pro Note/Ex.A1 was
marked. The first defendant examined himself as DW1 and examined one
Purushothaman as DW2. The second defendant examined herself as DW3.
On the side of the defendants, Ex.B1 to Ex.B7 were marked.
6. On the basis of the pleadings and evidence, the trial judge
decreed the suit as prayed for on 04.03.2009. Aggrieved by the same, the first
defendant alone filed an appeal before the learned Principal District Judge at
Thiruvallur in A.S.No.70 of 2010.
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7. After hearing both sides, the learned first appellate judge
dismissed the appeal confirming the decree of the trial court. Against the said
judgment and decree, the present second appeal was presented before this
Court.
8. On 05.04.2013, this Court had ordered notice regarding
admission and finally, it was admitted on the following substantial questions
of law on 12.04.2022:
“(a) Whether both the Courts below were right
in exercising power under Section 73 of the Indian
Evidence Act, 1872 by comparing the disputed signature
st
of the 1 defendant with the signature found in the vakalat
and the written statement, without calling for a
contemporaneous document with the admitted signature of
st
the 1 defendant and sending it for an expert opinion?
(b) Whether both the Courts below went wrong
nd
in fixing the liability against the 2 defendant without
properly appreciating the preponderance of probabilities
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based on the oral evidence and the documents relied upon
nd
by the 2 defendant?
(c) Whether the findings of both the Courts
below suffers from perversity due to improper
appreciation of the oral and documentary evidence?”
9. I heard Mr.Vigneshwar, learned counsel for Mr.V.Nicholas
learned counsel for the appellant and Mr.E.Prabhu learned counsel for the
respondent.
10. Mr.Vigneshwar would commence his argument by submitting
that the document under Ex.A1 is not a pro-note but one of a “bond”. He
would submit that since the document has been attested by witnesses, the
character of the document under Ex.A1 described as a pro-note would
become a bond and therefore, it ought to have been valued in accordance with
the Stamp Act, since bond has higher value than that of a pro-note and that
not having been done, it is fatal to the case of the plaintiff. His second
submission is that the signature of the first defendant under Ex.A1 differs
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and the court committed an error in comparing the document/Ex.A1 with the
vakalat, written statement and proof affidavit. Therefore, this error entitles
him to have the appeal accepted by this court and the suit has to be dismissed.
11. Mr.E.Prabhu would submit that insofar as the defence on bond
or a pro-note is concerned, it had not been raised in the written statement and
with respect to the stamp duty, his submission is that the judgment of the
Supreme Court in Javer Chand and Others vs. Pukhraj Surana, (1962) 2
SCR 333 would apply and finally he would state that it does not lie in the
mouth of the first defendant to argue that the court had compared the
signatures because he had invited the court to compare the same.
12. I have carefully considered the arguments on either side and
gone through the documents.
13. I agree with Mr.Prabhu that the aspect of bond and the pro-note
had not been raised before the trial court or the lower appellate court.
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However, being an interesting point, I permitted Mr.Vigneshwar to make his
submission on the same.
14. The argument of Mr.Vigneshwar is that since the document has
been attested by two witnesses, the document metamorphosis itself from that
of a pro-note to a bond. Mr.Vigneswar would very stoutly place reliance upon
the Full Bench Judgment of the Madhya Pradesh High Court in Santsingh vs.
Madandas Panika and Others, AIR 1976 MP 144.
15. A careful perusal of the Full Bench Judgment of the Madhya
Pradesh High Court shows that it had culled out the difference between a pro-
note and a bond. In the said judgment, the learned Chief Justice speaking for
the Full Bench held as follows:
“ 18.As a result of the above discussion, we
would answer the two questions set out in the beginning
as follows:—
(1)An instrument is a promissory note if there are present the following
elements:
(i) There should be an unconditional undertaking to pay;
(ii) The sum should be a sum of money and should be certain;
(iii) The payment should be to the order of a person who is certain, or
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to the bearer of the instrument; and
(iv) The maker should sign it.
(2)An instrument is a bond within the meaning of Section 2(5)(b) of the
Stamp Act, if the following elements are present:—
(i) There must be an undertaking to pay;
(ii) The sum should be a sum of money but not necessarily
certain;
(iii)The payment will be to another person named in the
instrument;
(iv) The maker should sign it;
(v) The instrument must be attested a witness; and
(vi) It must not be payable to order bearer.
(3) A bond has two distinguishing features:—
(i) Positive - it must be attested by a witness.
(ii) Negative - it must not be payable to order or bearer.
(4) For the purposes of the Stamp Act, it is only the definition as
contained in Section 4 of the Negotiable Instruments Act which is to be
read as if reproduced verbatim in Section 2(22) of the Stamp Act, but
no other provision of the Negotiable Instruments Act can be read
Section 2(22) of the Stamp Act, because of the restrictive words “as
defined in.”
(5) Explanation (1) of Section 13 of the Negotiable Instruments Act
may have own its own effect and impact on a promissory note for the
purposes of the Negotiable Instruments Act, but it has nothing to do
with the “definition” of a promissory note and, therefore, that
explanation is wholly relevant for the purposes of the Stamp Act. It
cannot, therefore, be said that every promissory note must be
excluded from the definition of Stamp Act, unless in contains an
express prohibition within the meaning of the explanation to Section 3
of the Negotiable Instruments Act.”
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16. I searched in vain as to whether the Full Bench has held that if a
pro-note is attested, it becomes a bond. Nowhere in the said judgment such a
position has been laid down and the judgment having been rendered by such
eminent Judges, I would have been surprised to find such a finding also.
17. The essential difference between a pro-note and a bond is that
in respect to the bond, it requires an attestation by a witness and it must not
be payable to an order or bearer. Insofar as a pro-note is concerned, it must be
paid on demand to an order or bearer authorised by the order.
18. In this particular case, going through Ex.A1, I am able to see
that the defendants have agreed to repay the amount “on demand” to the
plaintiff or any person authorised by the plaintiff. This shows that it is an “on
demand promissory note”.
19. I am unable to stretch the definitions of a bond and a pro-note
to such an extent that even if a document answers all the characteristics of a
pro-note, it would become a bond by the very fact that it has been attested. A
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Pro-note does not require attestation, but for the sake of safety and to prevent
all kinds of fancy defences that would be taken in a pro-note suit, especially
as in the present case, the signatures of the attesting witnesses are taken so
that in case of any dispute at a later date, the evidence of the attesting
witnesses will be used for the purpose of proving the document. In fact, a
reading of AIR 1976 MP 144 cited supra does not support the case of the
defendant but goes in favour of the plaintiff. Therefore, I conclude that it is a
demand promissory note and not a bond as sought to be argued by
Mr.Vigneshwar.
20. It has to be further noted that the purpose for Mr.Vigneshwar
arguing this point that it is a bond and not a promissory note is because in
case, I had read the document as a bond, then by virtue of Section 6 of the
Stamp Act, higher stamp duty will be payable for bond. Therefore, the net
effect of the argument of Mr.Vigneshwar is that Section 35 of the Stamp Act
is attracted and consequently, the document is inadmissible in evidence.
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21. Insofar as Stamp Act is concerned, if a document is
insufficiently stamped or unstamped, the document can never be received as
an evidence for any purpose including collateral purpose which is not the
case, if a document is not registered. An unregistered document can be read
under collateral purpose by virtue of proviso to Section 49, whereas the bar
under Section 35 is absolute. Having said this, I have to look further as to
whether any objection was taken by the first defendant at the time of marking
of the document under Ex.A1.
22. On a careful perusal of the evidence of the plaintiff PW1
through whom the document was marked, I do not find any objection at all.
On the contrary, the evidence of PW1 shows that placing reliance upon the
document Ex.A1, questions were asked to PW1 with respect to the document.
This shows that the document was not only accepted by both sides, but the
plaintiff and PW2, the attesting witness had been put through the ordeal of
cross examination on the basis of the document. This shows that both the
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parties had relied on the document. Consequently, Section 36 of the Stamp
Act would kick in.
23. In this particular case, though I am satisfied that it is a pro-note,
since Mr.Vigneshwar made a submission on the inadmissibility of the
document, I am constrained to go into the issue of Section 36. As per Section
36, if a document is not objected at the time of admission, it cannot be
objected at a later stage. I have to enter a caveat here. By the mere fact that it
is admitted during the interlocutory proceedings does not mean, objection
cannot be raised at the time, when the evidence is recorded in the suit.
However, that situation does not arise here because both the parties merrily
joined at trial on this issue and had examined themselves as well as subjected
themselves to cross-examination.
24. The issue whether the party having permitted the admission of a
document and thereafter, can turn around and plead that it is inadmissible,
had been settled by the four judges Bench of the Supreme Court in Javer
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Chand and Others vs. Pukhraj Surana, 1962 2 SCR 333. The relevant
portion of the said judgment is extracted hereunder:
“That section is categorical in its terms that
when a document has once been admitted in evidence,
such admission cannot be called in question at any stage
of the suit or the proceeding on the ground that the
instrument had not been duly stamped. The only exception
recognised by the section is the class of cases
contemplated by Section 61, which is not material to the
present controversy. Section 36 does not admit of other
exceptions. Where a question as to the admissibility of a
document is raised on the ground that it has not been
stamped, or has not been properly stamped, it has to be
decided then and there when the document is tendered in
evidence. Once the court, rightly or wrongly, decides to
admit the document in evidence, so far as the parties are
concerned, the matter is closed. Section 35 is in the nature
of a penal provision and has far-reaching effects. Parties
to a litigation, where such a controversy is raised, have to
be circumspect and the party challenging the admissibility
of the document has to be alert to see that the document is
not admitted in evidence by the court. The court has to
judicially determine the matter as soon as the document is
tendered in evidence and before it is marked as an exhibit
in the case.”
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25. In this particular case, as the objection had not been taken at the
time of admission of the document, Section 36 would operate and therefore,
the objection of Mr.Vigneshwar has to fail.
26. Now we turn to the sheet anchor of the argument of
Mr.Vigneswar that the court did not have the power to compare the document
with the written statement, vakalat and proof affidavit and come to a
conclusion that it was the signature of the first defendant. It is too well settled
but nonetheless since it has been argued, I have to reiterate that insofar as
comparison of documents under Section 73 of the Indian Evidence Act is
concerned, the Court should compare the document which has been put-forth
in the suit with the document which is contemporaneous to the transaction.
27. In this particular case, the said position had been changed on
account of the fact that the defendant/appellant's counsel himself had invited
the court to compare Ex.P1/Pro-note with the vakalat, Proof-affidavit and
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written statement. Having invited the court to compare the documents, I find
it surprising that in the second appellate stage, it is argued that the court
committed an error adopting the request that has been made by the
defendant/appellant's counsel itself.
28. This is a suit for recovery of money based on a pro-note. The
initial burden of proof lies on the plaintiff to prove that the document had in
fact been executed. Section 118 of the Negotiable Instruments Act does not
demand the court to presume that the document is true. It places the initial
burden on the plaintiff to prove that the document had been executed and
presumption under Section 118 arises only thereafter.
29. In this particular case, I have gone through the proof affidavit
of PW1, where she has categorically stated that it was the defendants who
had executed the document, as well as the evidence of PW2,
Mr.P.K.Sampath, the attesting witness. Both have spoken about the execution
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of the document and the borrowal of the amount by the defendants. Once the
initial burden had been discharged by the plaintiff, automatically the onus
shifts to the defendants by virtue of Section 118 of the Negotiable Instrument
Act.
30. Apart from requesting the court to compare the document, the
defendants did not even lift a little finger to discharge the burden caused on
him. No application was taken out by the first defendant for the purpose of
comparison of the signature on the disputed document under Ex.A1 with his
signature. The defendants ought to have produced a contemporaneous
document along an application and should have then requested the court to
send the document for forensic examination. Not having done that and having
missed the bus at Ponneri, it is too late for Mr.Vigneshwar to attempt to
board the same at Parry's Corner. The argument is one in vain and does not
appeal to me.
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31. In a money suit, the court should normally impose costs but as
pointed out by Mr.Vigneshwar, no pre-suit notice demanding repayment of
the amount had been issued. Therefore, I have to presume that there had been
an oral demand. As notice had not been issued, the plaintiff would not be
entitled for the cost in the suit alone. The plaintiff would be entitled for the
cost in the first appeal as well as in the second appeal.
32. In fine, the judgment and decree of the trial court in O.S.No.59
of 2006 dated 04.03.2009 and that of the lower appellate court in A.S.No.70
of 2010 dated 03.07.2012 stands confirmed. Second appeal is dismissed. The
plaintiff will be entitled for cost in the first appeal as well as in the second
appeal and would not be entitled for the cost in the suit.
01.02.2024
nl
Speaking order/Non-speaking order
Neutral Citation : Yes/No
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To
1.The Principal District Judge of Tiruvallur
2.The Subordinate Judge of Ponneri
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V.LAKSHMINARAYANAN, J.
nl
01.02.2024
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