In the High Court of Judicature at Madras
Dated:29.01.2007
Coram
The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN
Second Appeal No.440 OF 1997
Alamelu Ammal ..Appellant
vs.
Ramanujam ..Respondent
This second appeal is filed against the judgment and
decree dated 28.6.1996 made in A.S.No.47 of 1994 on the file
of Sub Court, Tindivanam reversing the Judgment and decree
dated 13.1.1992 made in O.S.No.245 of 1990 on the file of
the Court of District Munsif, Gingee.
For Appellant : Mr.R.G.Annamalai
For Respondent : Ms.N.Mala
JUDGMENT
This appeal has been preferred against the Judgment and
decree in A.S.No.47 of 1994 on the file of Sub Court,
Tindivanam. The plaintiff who won before the trial Court,
but lost her case before the first appellate Court, is the
appellant herein.
2. The short facts of the case of the plaintiff in
the plaint relevant for the purpose of deciding this appeal
are as follows:
On 11.1.1986 the plaintiff had executed a promissory note
for a consideration of Rs.2,500/- agreed to pay 12% interest
per annum. The defendant has not repaid the amount in spite
of several demands and finally issued a lawyer’s notice on
21.8.1989. Since the defendant is an agriculturist, the
plaintiff restricts his interest at the rate of 9% per
annum. Hence the suit.
3. The defendant in his written statement would contend
that the suit promissory note was not executed by him and
no consideration passed and that the suit promissory note is
a forged one. He had borrowed a sum of Rs.1,200/- in the
year 1986 from one Ramachandra Maistha but the promissory
note was executed for Rs.2,500/- including the interest.
Even one month before the expiry of the limitation period,
the said debt was discharged by the defendant and when the
defendant asked for the return of the promissory note, the
plaintiff had promised to search the same and returned the
same as early as possible. Afterwards, the plaintiff, with
the help of the signature found in the earlier promissory
note, has forged the suit promissory note. Hence the suit
is liable to be dismissed.
4. On the above pleadings, the trial Court had framed
five issues for trial. On the side of the plaintiff,
Plaintiff has examined herself as P.W.1 and also examined
the scribe of the promissory note as P.W.2 and also marked
Ex A1 promissory note. On the side of the defendant,
Defendant has examined himself as D.W.1 and also examined
another witness D.W.2 and marked Ex B1 dated 21.8.1989
notice issued by the plaintiff through her lawyer to the
defendant and Ex B2 dated 24.1.1990 reply notice sent by the
defendant to the plaintiff’s counsel.
5. After going through the oral and documentary
evidence, the learned trial Judge has come to a conclusion
that the plaintiff is entitled to a decree as prayed for and
accordingly decreed the suit with costs, and with a
direction to the defendant to repay the debt amount within
three months. Aggrieved by the Judgement of the learned
trial Judge, the plaintiff has preferred A.S.No.47 of
1994 before the Sub Court, Tindivanam who has reversed the
findings of the learned trial Judge on the ground that there
is a discrepancy seen in the admitted signature of the
defendant with that of the signature found in the suit
promissory note Ex A1 and that the plaintiff has failed to
examine one of the witnesses to the suit promissory note and
that Ex B1 notice , the date of the suit promissory note has
been mentioned wrongly. Since the plaintiff is not
satisfied with the reasoning given in the Judgment of the
first appellate Court, she has preferred this second appeal.
6. The substantial question of law involved in this
appeal is
” 1. Whether the lower Appellate Court
is correct in law in its findings as to
Ex A1 as against the provisions of
Section 88 of the Negotiable Instruments
Act, 1881?
Courts below are right in upholding the
oral partition pleaded by the defendant?
2. Whether it is not the duty and
burden of the respondent/defendant to
prove that Ex A1 is not a valid document
as per Sections 102 and 103 of the
Indian Evidence Act?
3. Whether the lower appellate Court is
correct in law in reversing the valid
findings of the trial Court?
7. The Points:
Section 88 of the Negotiable Instruments Act reads as
follows:
“Acceptor or indorser bound not
withstanding previous alteration: An
acceptor or indorser of a negotiable
instrument is bound by his acceptance or
indorsement notwithstanding any previous
alterations of the instrument.”
The defence taken by the defendant in his written statement
is that Ex A1 promissory note is a forged one and that he
had executed an earlier promissory note in favour of the
husband of the plaintiff viz., Ramachandran and that even
that promissory note was executed for double the amount over
and above, he had received from the plaintiff and that he
has already discharged the said promissory note, the
plaintiff has failed to return the said promissory note, but
forging the signature of the defendant in the earlier suit
promissory note in Ex A1 the same was brought into
existence for the purpose of the case. The first appellate
Court has compared the admitted signature of the defendant
in the vakalat, deposition with that of the disputed
signature in Ex A1 promissory note and has come to a
conclusion that both the signatures do not tally and that
Ex A1 is a forged one. But when the defendant has taken a
definite plea in his written statement that Ex A1 is a
forged one, the burden shifts on the defendant to prove the
same. But the defendant has not taken any steps to send the
promissory note Ex A1 to get an expert opinion with regard
to the genuineness or otherwise of the same. Even under
section 73 of the Indian Evidence Act, the Court is
competent to compare the disputed signature with that of
the admitted signature. If we compare the signature found in
Ex A1 with that of the admitted signature of the defendant
in the vakalat filed by the defendant before this Court and
that of the admitted signature contained in his deposition
and in the written statement will clearly go to show that
the signatures contain in the vakalat in the deposition and
in Ex A1 are belonged to one and the same person. Viz., the
defendant. Particularly the characteristic of letters “G” ”
u” “D” “k; ” exactly tally with the said letters found in
the signature in Ex A1 promissory note. So under such
circumstances, the defendant cannot take shelter under
Section 88 of the Negotiable Instruments Act. Yet another
reason in the first appellate Court’s Judgment is that the
failure of the plaintiff to examine an attestor to Ex A1 as
a witness to prove the case, cannot also be sustainable
because the promissory note is not a “Will” to be attested
by at least two witnesses and not to be proved by examining
at least one of the attesting witnesses as contemplated
under Section 68 of the Indian Evidence Act.
8. The plaintiff has examined herself as P.W.1 and
also examined another witness P.W.2 who is the scribe in Ex
A1. P.W.2 has corroborated the evidence of P.W.1 in respect
of the execution of the promissory note and also for passing
of consideration. The other point under which the first
appellate Court rejected the claim of the plaintiff is in
Ex B1 notice, the date of the promissory note has been
wrongly mentioned as 11.9.1989. But the actual date found
in Ex A1 is 11.9.1989. The date mentioned in Ex B1 is
clearly an error apparent on record because even on the
right hand side column in Ex B1, the date of notice has
been mentioned as 21.8.1989. For a promissory note said to
have been executed on 11.9.1989,it is impossible to send a
notice on 21.8.1989. So it will clearly go to show that it
is an error apparent on record. So under such circumstances,
this Court is compelled to interfere with the findings of
the first appellate Court in A.S.No.47 of 1994. The points
are answered accordingly.
9. In the result, the appeal is allowed and the decree
and Judgment in A.S.No.47 of 1994 on the file of the Court
of Subordinate Judge, Tindivanam is hereby set aside and the
Judgment of the trial Court in O.S.No.245 of 1990 is restored.
The suit is decreed as prayed for with costs through out.
Time for payment within two months from the date of receipt
of a copy of this order.
sg
To
1. The Sub Court,
Tindivanam
2. The District Munsif,
Gingee