Dismissed

Perumal v. Muthusamy Nadar (Deceased)

Madras HC13 Apr 2022SA/209/2001

Case brief

AI extract

What is this about?

In a second appeal regarding a debt recovery suit based on a promissory note, the High Court dismissed the appeal. The Court upheld the first appellate decree finding that the note was executed and consideration passed, rejecting contrary evidence and expert opinions.

What did the court decide?

Second appeal dismissed; first appellate decree and judgment upheld; trial Court decree and judgment set aside.

Perumal Vs Muthusamy Nadar (Deceased) — Contract and Commercial Disputes | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.04.2022

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CORAM

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THE HONOURABLE MRS. JUSTICE R.HEMALATHA

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S.A.No.209 of 2001 and C.M.P. Nos.2261 of 2001& 9526 of 2001

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Perumal ...Appellant/Respondent/Defendant

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Vs.

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1.Muthusamy Nadar (Deceased)

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2.Rangammal

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3.Chennaiyappan

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...Respondents/Appellant/Plaintiff

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(RR2 & 3 are brought on record as LRs of the deceased sole respondent vide order of Court dated 06.09.2012 made in C.M.P.Nos.570 & 571/2012 in S.A.No.209/2001)

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Prayer : Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 15.11.2000 passed in A.S. No.38 of 1999, on the file of the Principal Sub Court, Gobichettipalayam, reversing the decree and judgment dated 12.02.1999 passed in O.S. No.9 of 1996, on the file of the District Munsif Court, Gobichettipalayam.

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For Appellant : Mr. B. Kumarasamy For R2 and R3 : Mr. M. Narayanasamy JUDGMENT

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The appellant is the defendant in O.S.No.9 of 1996 on the file of District Munsif Court, Gobichettipalayam. The respondent/plaintiff filed the suit against the appellant/defendant for recovery of money due under a promissory note.

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For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

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The case of the plaintiff is that the defendant borrowed a sum of Rs.20,000/- from him on 17.08.1987 and executed a promissory note (Ex.A1) promising to repay the principal together with interest at the rate of 12% per annum on demand by him or to his order. His further contention is that inspite of repeated demands by him orally and in person, the defendant did not pay any amount either towards principal or interest and that therefore he issued a legal notice dated 06.08.1990 to the defendant for which a reply dated 09.08.1990 (Ex.A3) containing false allegations was sent by the defendant. He therefore, filed the suit.

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The defendant denied the execution of the promissory

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note (Ex.A1). His contention is that the plaintiff, being his neighbour, had insisted him to sell his property in his (plaintiff's) favour. Since this proposal was not accepted by the defendant, the pronote was fabricated by the plaintiff. It is also contended that the plaintiff's son was a member in a chit fund conducted by the defendant and there was some dispute over money transaction between the son of the plaintiff and the defendant and this was also a triggering factor for the plaintiff to file the present suit. He therefore, prayed for the dismissal of the suit.

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The trial Court after framing appropriate issues and

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after full contest dismissed the suit filed by the plaintiff vide its decree and judgment dated 12.02.1999 on the following grounds :

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i. Thirumurugan (P.W.4) one of the attestors to Ex.A1 is a resident of some other village and his signature on Ex.A1 is in different ink.

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ii.P.W.4 also is closely related to the plaintiff and he admitted that he signed on a pronote which was already filled up.

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iii.The evidence of Govindasamy (P.W.2), the scribe of Ex.A1 does not tally with the evidence of P.W.1.

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iv.Ponnusamy (D.W.2) another attestor of Ex.A1 had deposed that his signature was obtained only in his house and that at the time of signing Ex.A1, no one else was present in his house.

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v. Though it was contended that the defendant executed pronotes one in favour of the plaintiff and another in favour of the son of the plaintiff, the fact that the plaintiff alone filed the suit for recovery of money arouses a suspicion in the mind of the court that the suit

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pronote was fabricated only for the purpose of humiliating the defendant.

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vi.Though the handwriting expert Seshadhiri Rao (P.W.3) deposed that the signature of the defendant found on Ex.A1 tallies with his admitted signatures as per the report (Ex.C1 & Ex.C2), the handwriting expert Jayadevi (D.W3) has submitted a different report (Ex.B3 to Ex.B5) contending that the signature found on Ex.A1 is not the signature of the defendant.

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vii.A comparison of the defendant's signature on Ex.A1 with his admitted signatures on vakalat, deposition etc., shows that the defendant had not signed Ex.A1.

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viii.It is also in evidence that there were disputes between the plaintiff and the defendant over a property.

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ix.Thus, the plaintiff has not proved the execution of the pronote (Ex.A1) by the defendant.

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On an appeal in A.S.No.38 of 1999 before the Principal Subordinate Court, Gobichettipalayam, the decree and judgment of the trial Court was reversed on the following grounds (vide decree and judgment dated 15.11.2000) :

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i. The evidence of P.W.1 (plaintiff) and the scribe of Ex.A1 (P.W.2) are cogent as regards the execution of Ex.A1 and passing of consideration. They also withstood the testimony of cross examination.

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ii.The evidence of one of the attestors to Ex.A1 (P.W4) is clear on the aspect of execution of Ex.A1 as well as passing of consideration.

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iii.The defendant's contention that Ex.A1 was forged only to humiliate him since he did not accede to the request of the plaintiff to sell his (defendant's) land to the plaintiff has not been substantiated by adducing acceptable evidence.

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iv.The discrepancies in the evidence of P.W.1, P.W.2 and P.W.4 are only minor discrepancies and based on that alone it cannot be held that Ex.A1 is not true and valid.

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v. The inks used by the defendant and P.W.2 are one and the same. P.W.4 had signed Ex.A1 with his pen. This difference in ink has been unnecessarily highlighted by the trial Court.

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vi.The plaintiff, defendant, P.W.2, P.W.4 and D.W.2 are all related to each other and in such circumstances it cannot be accepted that P.W.2 is supporting the case of the plaintiff as he is related to the plaintiff.

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vii.The deposition of P.W.4 that he could not remember the date of execution of pro-note and that he signed on Ex.A1 in the first instance before the other attestor signed on it, cannot be said to be considered to discredit the versions of P.W.4.

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viii.When the evidence of P.W.1, P.W.2 & P.W.4 clearly shows the execution of Ex.A1 and passing of consideration, the evidence of D.W.1 that there was no necessity for him to borrow money from the plaintiff as he himself had advanced loan to various persons and also filed suits in O.S.Nos.471/1991 and 207/1991 before the Sub Court, Gobichettipalayam (Ex.B1 & Ex.B2) is least useful to the case of the defendant.

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ix.When the defendant himself admitted that the plaintiff owns several properties and is also cultivating paddy and other crops, it is not known as to how the trial Court came to a conclusion that the plaintiff did not have sufficient means to advance loan to the defendant.

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x. P.W.2 in fact was working as an accountant in the chit company run by the defendant and therefore, P.W.2 cannot be said to be very close to the plaintiff especially when D.W.1 himself admitted there was no enmity between him and P.W.2.

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xi.D.W.2, another attestor to Ex.A1, though admitted that he attested Ex.A1 only on the request of the plaintiff, did not initiate any action against the plaintiff for getting his signature on a pronote in the absence of the borrower. Hence, his evidence cannot be believed.

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xii.Since there are two different opinions by the handwriting experts (P.W.3 & D.W.3), a comparison of the signature of the defendant on Ex.A1 with his admitted signatures clearly shows that the signature found on Ex.A1 is the signature of the defendant. Moreover, other witnesses P.W.1, P.W.2 and P.W.4 have given cogent evidence with regard to the execution of Ex.A1.

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xiii.Both P.W.3 & D.W.3 have not compared the signature of the defendant with his admitted signatures obtained prior to the filing of the suit and therefore, the decision in Smt. Manorama Srivatsala and another vs. Smt. Saroj Srivatsala reported in AIR 1989 All. 17 would not apply to the facts of the present case.

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Thus, the first appellate Court allowed the appeal and decreed the suit filed by the plaintiff.

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Now the present second appeal is filed on the following substantial question of law :

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"Whether the lower appellate Court is right in holding that the execution of the suit pronote (Ex.A1) is proved by the evidence of P.W.1 & P.W.2 overlooking that there are several other vital contradictions in their evidence creating doubt about the plaintiff's case."

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Mr. B. Kumarasamy, learned counsel for the appellant pointed out the discrepancies in the evidence of P.W.1 to P.W.4 and D.W.2 and contended that the plaintiff has not proved the execution of Ex.A1. It is also his contention that P.W.2 belongs to a different village and when there were other relatives of the plaintiff and the defendant nearer to their respective houses, it is not properly explained by the plaintiff as to why he chose P.W.2 to attest Ex.A1. According to him, the trial Court had the opportunity of seeing the demeanour of the witnesses and that there are no valid grounds for the first appellate court to reverse the findings recorded by the trial Court. It is also his contention that the first appellate Court should not have taken up the task of comparing the signature of the defendant on Ex.A1 with his admitted signatures found on vakalat and deposition.

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Per contra, Mr. M. Narayanasamy, learned counsel for the respondent would contend that the first appellate Court rightly appreciated the evidence on record and that even the handwriting experts (P.W.3 & D.W.3) who gave divergent opinions did not get the signature of the defendant prior to the filing of the suit and the first appellate Court was right in comparing the signature of the defendant with his admitted signatures found in vakalat, written statement, etc. It is also his submission that P.W.1, P.W.2 & P.W.4 had clearly deposed the execution of Ex.A1 and passing of consideration and that when the initial burden of proof was discharged by the plaintiff, the defendant did not prove his contention that the suit was filed by the plaintiff by pressing into service a forged document just for the purpose of humiliating the defendant as the latter did not convey his property in favour of the former. According to him, all the observations made by the first appellate Court are based on facts and there is no substantial question of law involved in the present second appeal.

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The plaintiff in order to establish the execution of Ex.A1 had examined himself as well as Govindasamy (P.W.2), the scribe of Ex.A1, and one of the attestors Thirumurugan (P.W.4). Originally, the plaintiff examined himself and P.W.2 alone and

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the suit was dismissed. In the first appeal, the first appellate Court remanded the matter back to the trial Court for giving an opportunity to the plaintiff to get the opinion of a handwriting expert. Accordingly, the plaintiff got the opinion of a private handwriting expert (P.W.3) and also examined him. P.W.3 had deposed that the signature found on Ex.A1 is the signature of the defendant. However, Jayadevi (D.W.3) another private handwriting expert had given a divergent opinion.

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The plaintiff also examined one of the attestors Thirumurugan as P.W.4. The contention of the defendant is that this P.W.4 was examined only after the remand of the suit by the first appellate Court and no plausible explanation was given by the plaintiff for not examining him at the first instance. It is seen from the records that summons were sent to P.W.4 and therefore, he had come to Court and deposed.

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In any event, the trial Court seems to have come to a conclusion that P.W.4 is untrustworthy for the following flimsy reasons :

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i. P.W.4 could not state the date and month of execution Ex.A1.

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ii.He could not also remember the number of stamps affixed on Ex.A1.

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iii.The distance between the house of P.W.4 and the plaintiff is two furlongs and when there are other relatives nearer to the house of the plaintiff, it is not known as to why P.W.2 was chosen to attest Ex.A1.

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iv.Though P.W.4 contended that he was not called by the plaintiff to give evidence before Court and that he came to Court only after receiving summons from Court, he admitted during the course of cross examination that he was requested by the son of the plaintiff to adduce evidence.

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v. The signature of P.W.4 on Ex.A1 was in different ink.

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On the other hand, the first appellate Court had analysed the evidence of P.W.1, P.W.2 & P.W.4 threadbare and had come to a conclusion that the plaintiff had proved not only the execution of Ex.A1 and also passing of consideration. It was further observed that the evidence of the scribe (P.W.2) is also cogent and corroborated with the evidence of P.W.1 and P.W.4.

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In the instant case, the handwriting experts (P.W.3 & D.W.3) had given divergent opinions. When P.W.3 states that the signature found on Ex.A1 is the signature of the defendant,

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D.W.3 states that it is not. In this back drop, the first appellate Court had taken the task of comparing the signature of the defendant with his admitted signatures on vakalat, deposition, etc. and found that the signature found on Ex.A1 is the signature of the defendant. In any event a careful analysis of the evidence of P.W.1 and P.W.2 clearly shows that the defendant executed the suit pronote Ex.A1.

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The trial Court, merely based on the oral evidence of P.W.2 without any proof thereon, had come to a wrong conclusion that the plaintiff does not have sufficient means to lend money. The trial Court further taken into account the suits in O.S.Nos.471 of 1991 & 207 of 1991 (EX.B1 & Ex.B2) filed by the defendant to hold that when the defendant himself had advanced loan to others, there was no necessity for him to get a loan from the plaintiff. This observation of the trial Court is based on surmises and conjectures.

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The learned counsel for the appellant drew the attention of this Court to the evidence of Ponnusamy (D.W.2), another attestor of Ex.A1 and contended that this evidence is sufficient to hold that Ex.A1 was forged. D.W.2's evidence is that he signed on Ex.A1 in his house since he was requested by the plaintiff to do so and that no other person was present at the time when he signed on Ex.A1. It is pertinent to point out that D.W.2 did not issue any notice to the plaintiff in this regard and it is not also explained by him as to why he was obligated to the plaintiff to sign a document involving money transaction. It is not his case that he signed Ex.A1 as an attestor under threat or coercion or undue influence. All these aspects have in fact been dealt with by the first appellate Court in extenso and the observations made by the first appellate Court cannot be said to be perverse.

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In the circumstances, substantial question of law is answered against the appellant. In fact the first appellate Court recorded the findings on factual aspects and there is no substantial question of law especially when the evidence adduced on both sides is properly appreciated by the first appellate Court.

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In the result,

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i. the second appeal is dismissed. No costs. Consequently connected miscellaneous petitions are closed.

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ii.The decree and judgment dated 15.11.2000 passed in A.S. No.38 of 1999, on the file of the Principal Subordinate Judge, Gobichettipalayam, is upheld.

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iii.The decree and judgment dated 12.02.1999 passed in O.S.No.9 of 1996, on the file of the District Munsif, Gobichettipalayam, is set aside.

s/d-

Assistant Registrar

True Copy

Sub-Assistant Registrar

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bga

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1.The Principal Subordinate Judge, Gobichettipalayam.

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2.The District Munsif, Gobichettipalayam.

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3.The Section Officer,

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VR Section, High Court, Madras.

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+1 CC to Mr.B.Kumarasamy, Advocate sr 26604.

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+1 CC to Mr. M. Narayanasamy, Advocate sr 26052.

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S.A.No.209 of 2001

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SJ(CO) SP(09/05/2022)

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Perumal v. Muthusamy Nadar (Deceased)

Case brief

What is this about?

What did the court decide?

Perumal v. Muthusamy Nadar (Deceased)

Case brief

What is this about?

What did the court decide?

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