BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1349 of 2000 1.Subramanian 2.Palaniammal .. Appellants Vs 1.V.Murugesan 2.Kanagaraj .. Respondents (R2-given up) Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.03.2000 in A.S.No.77 of 1997 on the file of the learned Additional District Munsif, Dindigul in reversing the judgment and decree dated 24.12.1996 in O.S.No.485 of 1993 on the file of the learned Subordinate Judge, Dindigul. !For Appellants ... Mr.R.Nandakumar ^For Respondent No.1 ... Mr.K.Elangovan :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
31.03.2000 passed in A.S.No.77 of 1997 on the file of the learned Additional
District Court, Dindigul in reversing the judgment and decree dated 24.12.1996
in O.S.No.485 of 1993 on the file of the learned Subordinate Judge, Dindigul.
2. The parties are referred to hereunder in the same order as they were
arrayed before the trial Court.
3. Precisely and pithily the case of the plaintiff as stood exposited
from the plaint could be portrayed thus:
The deceased first defendant viz., S.Kulanthaivel Pillai and his son the
second defendant approached the plaintiff and borrowed a sum of Rs.32,000/-
(Rupees thirty two thousand only) and in consideration of the same, the suit
promissory note emerged undertaking to repay the amount borrowed with 12%
interest per annum. Subsequently, the defendants committed default. The legal
notice sent by the plaintiff was not replied by the defendants, despite
acknowledging the same. Hence, the suit.
4. Impugning and challenging, denying and refuting the
allegations/averments in the plaint, the first defendant filed the refutatory
written statement before the trial Court, which was adopted by the defendant
No.2; the gist and kernel of it would run thus:
The plaintiff was a stranger to the defendants, who had no financial
necessity to borrow any money muchless the sum of Rs.32,000/- (Rupees thirty two
thousand only) from the plaintiff. The first defendant himself was a money
lendor and he obtained decrees as against several persons and in such a case,
there would have been no necessity at all for the defendants to borrow such an
amount from the plaintiff. Accordingly, he prayed for the dismissal of the
suit.
5. The trial Court framed the relevant issues and during trial, the
plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A.1 to A.4
were marked. On the side of the defendants, the first defendant examined
himself as D.W.1 along with D.W.2 and Exs.B.1 to B.12 were marked. The copy of
the Savings Bank Account No.70/12341 of the first defendant was marked as Ex.C1.
6. The trial Court ultimately dismissed the suit.
7. Being aggrieved by and dissatisfied with the Judgment and decree of the
trial Court, the plaintiff preferred the first appeal, whereupon the first
appellate Court reversed the Judgment and decree of the trial Court.
8. Challenging the Judgment and decree of the first appellate Court, the
second appeal has been filed on the grounds interalia thus:
The Judgment and decree of the first appellate Court is against law and
weight of evidence. The first appellate Court of its own accord compared the
disputed signatures in the promissory note Ex.A2 with that of the admitted
signatures in the vakalath, written statement and others documents and jumped to
the conclusion as though the defendant Nos.1 and 2 executed the suit promissory
note. The well reasoned Judgment of the trail Court was revered by the first
appellate Court without any reasonable basis. The presumption contemplated
under Section 118 of the Negotiable Instruments Act was not attracted in the
facts and circumstances, nonetheless the first appellate Court simply ushered in
such presumption. Accordingly, they prayed for setting aside the Judgment and
decree of the first appellate Court and for upholding the dismissal decree of
the trial Court.
9. The following substantial questions of law were framed by my learned
Predecessor at the time of admitting this second appeal:
“1. Whether the lower appellate Court is right in decreeing the suit
without properly considering Sec.118 of the Negotiable Instruments Act?
2. Whether the lower appellate Court being a final Court of fact is right
in ignoring the unconsistencies in the depositions of the witnesses examined on
the side of the plaintiff?”
10. The substantial questions of law are taken together for discussion as
they are interlinked and interwoven with one another.
11. Heard both sides.
12. The learned counsel for the appellants/defendants would draw the
attention of this Court to the various aspects of the Judgments and decrees of
the trial Court and the first appellate Court and develop his arguments to the
effect that the first appellate Court ignoring the contradictions in the
evidence of P.Ws.1,2 and 3 and simply described them as minor contradictions;
the first appellate Court of its own accord compared the disputed signatures
with that the admitted signatures and jumped to the wrong conclusion and that
too ignoring the fact that the first defendant had no necessity at all to borrow
the amount from the plaintiff.
13. Whereas the learned counsel for the first respondent/ plaintiff
appositely and appropriately convincingly and correctly would draw the attention
of this Court to the deposition of P.W.3 and more specifically to the lost
sentence in the cross examination, which could be extracted here under for ready
reference:
“epug;gg;glhj g[BuhBehl;oy; vjph;thjpfs; ifbaGj;J bgwg;gl;L mij thjp
brhd;djhy; ehd; gpd;dpl;L g{h;j;jp bra;Bjd; vd;why; rhpay;;y”.
14. The first appellate court adverted to such extract and held that
during the trial the case of the defendants got changed to the effect that the
defendant Nos.1 and 2, so to say, the father and son signed the promissory note
in blank. The promissory note Ex.A1 is in printed format and earlier the
contention in the written statement was to the effect that they did not sign the
promissory note at all and it was a forged one. But quite antithetical to their
stand set out in black and white in the written statement, they turned turtle
and by having a volte face, simply dished out a new plea that the defendants 1
and 2 signed in the blank promissory note format and subsequently with the help
of P.W.3, the scribe, the plaintiff got it filled up, which in my opinion is a
prevaricative stand on the part of the defendants and which is fatal to their
case. Over and above that the defendants who were in the know of things, having
received the pre suit notice, failed to reply. I would like to observe that the
first appellate Court was not justified in simply expressing its subjective
satisfaction based on comparing the disputed signature with the alleged post
litem motam documents that the disputed signatures were that of the defendants.
Ante litem motam documents alone should be taken into consideration for
comparison purpose, under Section 73 of the Indian Evidence Act. Once a Judge
assures the role of an hand writing expert, he should play that role properly
and sincerely in a fitting manner and not perfunctory. However, in this case,
the findings recorded by the first appellate court is based on its simple
subjective satisfaction. However, de horse such lapse, it placed reliance on
various other aspects of the case correctly and rendered ultimately a discerning
Judgment which warrants no interference.
15. The first appellate Court being the last Court of facts, decided based
on the defendants admission of their signatures and by invoking Section 20 and
118 of the Negotiable Instruments Act. The minor contradictions as found by the
trial Court were ignored by the first appellate Court correctly as the witnesses
may not be able to correctly recollect all the minor events, while deposing
before the trial Court. Accordingly, the substantial questions of law No.1 is
answered that the first appellate Court correctly invoked Section 118 of the
Negotiable Instruments Act. The substantial question of law No.2 is decided to
the effect that the first appellate court was right in ignoring such
unconsistencies.
16. In the result, there is no merit in the second appeal and the same is
dismissed, confirming the judgment and decree of the first appellate Court.
However, in the facts and circumstances of the case, there is no order as to
costs.
smn
To
1. The Additional District Munsif, Dindigul.
2. The Subordinate Judge, Dindigul.