C. Madheswaran vs K.C. Ramesh

R.S. Ramanathan, J.—The plaintiff in O.S. No. 107 of 2005 on the file of the Principal Subordinate Court, Krishnagiri, is the appellant. The

appellant/plaintiff filed the suit for specific performance of an agreement of sale and the suit was dismissed and confirmed in the appeal in A.S. No.

69 of 2012 on the file of the Principal District Court, Krishnagiri and aggrieved by the same, the Second Appeal is filed by the appellant.

The case of the appellant/plaintiff as seen from the plaint is as follows: The suit property belongs to the respondent/defendant and on 17.3.2005,

an agreement of sale entered into between the plaintiff and defendant whereby the defendant agreed to sell the property to the plaintiff for a

consideration of Rs. 1,18,300/- and received an advance amount of Rs. 10,000/- and thereafter on 11.4.2005 another sum of Rs. 1,00,000/- was

paid towards part of the sale consideration by the plaintiff and it was also acknowledged by the defendant and thereafter, the defendant did not

come forward to execute the sale deed. Therefore, notice dated 16.8.2005 was issued calling upon the defendant to receive the balance amount

and the defendant sent a reply admitting the agreement of sale dated 17.3.2005, but denied the receipt of Rs. 1,00,000/- on 11.4.2005 and also

the endorsement made on the agreement of sale and therefore the suit was filed for the relief of specific performance.

The respondent/defendant filed a statement admitting the execution of agreement of sale and also the consideration fixed under the agreement

and receipt of Rs. 10,000/- as advance. But he denied the payment of Rs. 1,00,000/- on 11.4.2005 by the plaintiff towards part of the sale

consideration and also the acknowledgment alleged to have been made by him for having received Rs. 1,00,000/-. He denied the receipt of Rs.

1,00,000/-. He also stated that he borrowed Rs. 35,000/- in the year 2003 and repaid Rs. 15,000/- and balance Rs. 20,000/- was to be paid by

him to the plaintiff and a Panchayat was convened and in that Panchayat it was decided that the defendant has to pay Rs. 41,000/- to the plaintiff

on or before July 2005 and the signature of the defendant was obtained by the Panchayatdars in a blank paper on the Stamp and that must have

been used to create acknowledgment and the plaintiff would not have paid Rs. 1,00,000/- and even according to the plaintiff the defendant has to

pay him Rs. 1,12,000/- in respect of the earlier transaction and therefore he is not liable to execute the sale deed.

On the basis of the pleadings the trial Court framed the following issues and are as follows:

(1) Whether the plaintiff paid a sum of Rs. 1,00,000/- to the defendant on 11.4.2005 is a true one?

(2) Whether the endorsement on the back of the suit sale agreement is a forged one?

(3) Whether the plaintiff is always ready and willing to perform his part of the contract?

(4) Whether there is no cause of action for this suit?

(5) Whether the plaintiff is entitled a Judgment and Decree as prayed for?

(6) To what relief the plaintiff is entitled?

The plaintiff examined three witnesses and marked six exhibits and the defendant examined three witnesses and marked one exhibit and the

Finger Print Expert DW 2 was examined and she gave an opinion that the signature found in Ex. A2 acknowledgment for having received Rs.

1,00,000/- was not that of the signature of the defendant. The trial Court also held that in addition to the opinion of the Finger Print Expert the

Court also compared the signature found in the agreement of sale as well as in the endorsement and concurred with the views of the Expert and

held that Ex. A2 endorsement is a forged one and having regard to the case of the plaintiff that the defendant owed him Rs. 1,12,000/- in respect

of another transaction, the plaintiff would not have paid Rs. 1,00,000/- on 11.4.2005 and held that on 11.4.2005 Rs. 1,00,000/- was not paid and

Ex. A2 is a forged one and in the trial Court also held that having regard to the forged signature in Ex. A2 the plaintiff is not entitled to the relief of

specific performance.

The lower appellate Court framed the following points for consideration:

(1) Whether Ex. A2 is a forged one as contended by the defendant?

(2) Whether the plaintiff is entitled to get the sale deed in his favour by paying Rs. 8,300/-?

(3) Whether the plaintiff is entitled to possession?

(4) Whether the appeal is liable to be allowed?

The lower appellate Court discussed the evidence of DW 2 and held that the signature in Ex. A2 is a forged one and the plaintiff did not pay Rs.

1,00,000/- on 11.4.2005. The lower appellate Court also held that as the plaintiff did not pay Rs. 1,00,000/- and created a forged endorsement

Ex. A2, he is not entitled to get the relief of specific performance and he is also not entitled to get possession and dismissed the appeal.

In the grounds of appeal the appellant raised the following substantial questions of law:

(1) When the disputed and admitted signatures in the documents should belong to contemporaneous period and that the disputed signatures should

not be compared with the signature in the vakalath, written statement and affidavit but the report of the hand writing expert reveals that the disputed

signature was compared with the signature found in the vakalath, written statement and affidavit and therefore the said report is not valid in law

whether the Courts below are correct in not granting the relief to the plaintiff on their basis of the said report of the hand writing expert?

(2) When the evidence of the hand writing expert would show that she is a practicing advocate and as well as hand writing expert and there is no

evidence to show that she is a qualified handwriting expert whether the Courts below are correct in relying on her report while considering the

dispute with regard to endorsement in question?

The learned counsel for the appellant submitted that the Courts below erred in giving much importance to the opinion of the Expert arrived at a

conclusion that the signature found in Ex. A1 and Ex. A2 are different and Ex. A2 signature was not that of the defendant, without appreciating the

fact that the Expert compared the signature in Ex. A2 with that of the signature of the defendant found in vakalath, written statement and affidavit

and therefore the Expert opinion should not have been given any wait and the Expert failed to take into consideration the signature of the defendant

earlier to the agreement of sale and the signature obtained after the commencement of lis should not have been taken into consideration for

comparison. He further submitted that DW 2 has not proved that she is a qualified Handwriting Expert and therefore her evidence should not be

taken for deciding the issue.

I am unable to accept the contention of the learned counsel for the appellant. It is true that while comparing the signature, the signature

obtained earlier in point of time before the cause of action arose must be taken into consideration and the signature found in vakalath, written

statement and affidavit should not be compared with the disputed signature. It is seen from the Expert opinion that the Expert compared the

signature in the agreement of sale and also the signature found in vakalath, written statement and affidavit. In this case, it is admitted that the

defendant entered into an agreement of sale on 17.3.2005 agreeing to sell the property in favour of the plaintiff. Therefore, the signature of the

defendant in the agreement of sale is admitted. The defendant disputed his signature in the endorsement Ex. A2. Therefore, there is nothing wrong

in comparison with the signature of the defendant found in Ex. A1 which is admitted with that of the disputed signature found in Ex. A2. Though the

Expert also compared the signature found in vakalath, written statement and affidavit, she also compared the signature found in Ex. A1 and A2 and

gave an opinion that the disputed signature was not made by the defendant, by giving cogent reasons. She also examined herself as DW 2 and she

was also cross examined and nothing has been elicited in favour of the plaintiff in the cross examination. Therefore, both the Courts below rightly

held that the plaintiff has not paid Rs. 1,00,000/- on 11.4.2005 under Ex. A2.

It is also admitted that defendant owes more than Rs. 1,00,000/- to the plaintiff. The plaintiff has admitted that the defendant has to pay him

Rs. 1,12,000/- and the reference was also made in the plaint as well as in evidence. Therefore, the Courts below have rightly held that when the

defendant owes a sum of Rs. 1,12,000/- to the plaintiff on the date of endorsement Ex. A2, the plaintiff would not have paid Rs. 1,00,000/- to the

defendant towards the agreement of sale. Though the agreement of sale is a different transaction and the loan payable by the defendant to the

plaintiff is also a different transaction, when the defendant owes more than Rs. 1,00,000/- to the plaintiff, the plaintiff would not have paid Rs.

1,00,000/- towards sale consideration and that was rightly considered by the Courts below and held that the plaintiff would not have paid Rs.

1,00,000/- on 11.4.2005. Therefore, the substantial questions of law are answered against the appellant holding that the Finger Print Expert

compared the admitted signature found in Ex. A1 with that of the disputed signature found in Ex. A2 and there is no irregularity in comparing the

disputed signature with the admitted signature when signature found in Ex. A1 is admitted. Further the Handwriting Expert DW 2 has given cogent

reasons and also has spoken about her credentials in evidence in that field and considering all these aspects, the Courts below believed the

evidence of DW 2. Further the Courts below also relied upon the conduct of the plaintiff and held that the plaintiff would not have paid Rs.

1,00,000/- when the defendant has to pay him more than Rs. 1,00,000/- on the date of Ex. A2. Hence, the Courts below rightly held that the

plaintiff is not entitled to the relief of specific performance and I do not find any infirmity in the findings of the Courts below and the Judgment and

Decree of the Courts below are confirmed. In the result, the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is

closed.