Dukshyadipati Misal vs Bhabani Chandra Panigrahi Vs

A.C. Behera, J

This   2nd    appeal   has been preferred   against the   confirming judgment.

The appellant in this 2nd appeal was the defendant before the trial court in the suit vide M.S. No.21 of 1993 and the appellant before the 1st appellate court in the 1st appeal vide M.A. No.04 of 1994.

The respondent in this 2nd appeal was the plaintiff before the trial court in the suit vide M.S. No.21 of 1993 and the respondent before the 1st  appellate court in the 1st appeal vide M.A. No.04 of 1994.

The suit of the plaintiff(respondent in this 2nd appeal) vide M.S. No.21 of 1993 was a suit for realization of money, i.e., Rs.36,630/-(rupees thirty-six thousand six hundred thirty) with interest thereon from the defendant(appellant in this 2nd appeal).

As per the averments made in the plaint, the plaintiff was working in the cloth-store of his father situated in the college road of Parlakhemundi town. The defendant had business transactions with their shop. For which, the plaintiff and the defendant had relationship with each other. On 03.04.1991, the defendant requested plaintiff to provide Rs.33,000/-(rupees thirty-three thousand) as hand loan for the improvement of his business along with some domestic purposes in order to repay the same within six months. As the plaintiff and the defendant had their relationship with each other through business transactions, for which, the plaintiff, accepted the aforesaid proposal of the defendant and he(plaintiff) paid Rs.33,000/-(rupees thirty-three thousand) to the defendant on dated 03.04.1991 through execution of a promissory note on the stamp papers by the defendant in favour of the plaintiff in presence of the witnesses indicating in detail about the repayment of the said hand loan amount with interest thereon within six months since 03.04.1991. Thereafter, the defendant did not repay the said loan amount in spite of repeated demands of the plaintiff. For which, without getting any way, the plaintiff issued a legal notice on dated 02.11.1991 to the defendant through his Advocate requesting him(defendant) to repay the loan amount with interest and the defendant received the said notice on dated 11.11.1991 and gave reply to the plaintiff on dated 16.01.1992 denying the taking up of money from him(plaintiff) as hand loan on dated 03.04.1991 and also denied the execution of any promissory note for the same on that day. So, he(plaintiff) approached the civil court by filing the suit vide M.S. No.21 of 1993 against the defendant praying for realization of the principal amount, i.e., Rs.33,000/-(rupees thirty-three thousand) with accrued interest thereon along with future interest on the same.

Having been noticed from the trial court in the suit vide M.S. No.21 of 1993, the defendant contested the same by filing his written statement denying the averments made by the plaintiff in his plaint and also denied to have known the plaintiff earlier and so also denied about his any business transaction with the plaintiff. The specific plea of the defendant was that, he has not taken any money as hand loan from the plaintiff by executing the so-called promissory note on dated 03.04.1991 in presence of any witness to meet his any requirements and his further case was that, the so-called promissory note dated 03.04.1991 is a false/forge and fabricated one and he has not signed on any promissory note on dated 03.04.1991. The plaintiff has managed to forge his signature on the so-called promissory note dated 03.04.1991 for the purpose of this suit. For which, the plaintiff is not entitled to get any money from him(defendant). Therefore, the suit of the plaintiff is liable to be dismissed against him(defendant).

Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four numbers of issues were framed by the trial court in the suit vide M.S. No.21 of 1993 and the said issues are:-

ISSUES

Whether the defendant incurred loan of Rs.33,000/- from the plaintiff by executing a promissory note?

Whether the suit pronote dated 03.04.1991 is true, valid and genuine?

Whether the plaintiff is a money lender and the suit is hit under the provisions of Orissa Money Lenders Act?

Whether the plaintiff is entitled to the suit claim?

In order to substantiate the aforesaid relief sought for by the plaintiff against the defendant in the suit vide M.S. No.21 of 1993, he (plaintiff) examined three witnesses from his side including him as P.W.1 and relied upon the documents vide Exts.1 to 3 including the so-called promissory note dated 03.04.1991 as Ext.3 and copy of the Advocate’s notice as Ext.1.

On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined himself as D.W.1 without proving any document from his side.

After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff and against the defendant, the trial court decreed the suit of the plaintiff vide M.S. No.21 of 1993 on contest against the defendant, as per its judgment and decree dated 31.03.1994 and 08.04.1994 respectively directing the defendant to pay a sum of Rs.36,630/-(rupees thirty-three thousand) to the plaintiff along with interest @ 12% per annum thereon from the date of filing of the suit till the date of realization assigning the reasons that, it is established through oral and documentary evidence of the parties that, on 03.04.1991, the defendant had received Rs.33,000/-(rupees thirty-three thousand) from the plaintiff as hand loan by executing the promissory note vide Ext.3 in presence of the witnesses in order to repay the said loan amount to the plaintiff within a period of six months with interest thereon from the date of execution of such promissory note and the plaintiff is not a money lender by the profession. Due to friendship of the plaintiff with the defendant, as per the request of the defendant, he(plaintiff) had provided the said amount as hand loan to the defendant, for which, the defendant was liable to repay such loan amount with interest to the plaintiff within a period of six months from the date of execution of the promissory note vide Ext.3, but, he(defendant) has violated the condition of such promissory note vide Ext.3, for which, the plaintiff is entitled to recover the said amount with interest from the defendant.

On being dissatisfied with the aforesaid judgment and decree passed by the trial court in M.S. No.21 of 1993 in favour of the plaintiff and against the defendant, he(defendant) challenged the same by preferring the 1st appeal vide M.A. No.04 of 1994 being the appellant against the plaintiff arraying the plaintiff as respondent.

After hearing from both the sides, the 1st appellate court dismissed that 1st appeal vide M.A. No.04 1994 of the defendant as per its judgment and decree dated 23.08.2000 and 07.09.2000 respectively on contest concurring / accepting the findings and observations made by the trial court in its judgment and decree against the defendant and in favour of the plaintiff.

On being aggrieved with the aforesaid judgment and decree dated 23.08.2000 and 07.09.2000 respectively passed by the 1st appellate court in M.A. No.04 of 1994 against the defendant, he(defendant) challenged the same by preferring this 2nd appeal vide S.A. No.392 of 2000 being the appellant against the plaintiff arraying him(plaintiff) as respondent.

This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e., :-

“(i) Whether the burden lies on the defendant to get the signature on Ext.3 examined through a handwriting expert and if such wrong placing of burden vitiates the entire decisions of the learned trial court below?

(ii) Whether due execution of the Ext.3(promissory note) has been proved by the plaintiff?”

I have already heard from the learned counsels of both the sides.

As, the above both formulated substantial questions of law are interlinked, i.e., whether it was the duty of the trial court under law for sending the so-called promissory note dated 03.04.1991(Ext.3) to the handwriting expert for examination of the genuineness of the signature on the said Ext.3, i.e., whether the defendant had signed on the same or not, then, at this juncture, both the substantial questions of law are taken up together analogously for their discussions hereunder :-

It is the concurrent finding on facts by both the courts, i.e., trial court  as  well  as  1st  appellate  court  after  appreciating  the  pleadings  as well as oral and documentary evidence of the parties that, the plaintiff has duly proved the execution of the promissory note vide Ext.3 by the defendant in favour of the plaintiff on dated 03.04.1991(Ext.3) in presence of the witnesses thereof, i.e., P.Ws.2 and 3 for receiving Rs.33,000/-(rupees thirty-three thousand) from the plaintiff as hand loan and by executing that, Ext.3 in favour of the plaintiff, he(defendant) had received Rs.33,000/-(rupees thirty-three thousand) as hand loan from the plaintiff in order to repay the same with interest thereon within a period of six months from 03.04.1991, but, he(defendant) failed to comply the conditions of such promissory note vide Ext.3 for repayment of the loan amount with interest thereon to the plaintiff in due time in spite of the demands of the plaintiff, for which, both the courts below decreed the suit of the plaintiff entitling the plaintiff to get the decretal loan amount with interest thereon from the defendant directing the defendant to repay the same.

When, it is the concurrent findings on facts by the trial court and 1st appellate court after appreciating the pleadings as well as oral and documentary evidence of the parties that, the un-assailed / unshaken testimonies of the plaintiff (P.W.1) and his witnesses, i.e., P.Ws.2 and 3 are going to establish that, defendant had received Rs.33,000/-(rupees thirty-three thousand) from the plaintiff on dated 03.04.1991 as hand loan by executing the promissory note vide Ext.3 in presence of the witnesses, i.e., P.Ws.2 and 3 putting his signature on the Ext.3 vide Ext.3/a in order to repay the said loan amount within a period of six months with interest thereon, then, at this juncture, the onus, which was on the plaintiff as per law for proving the proper execution of the promissory note dated 03.04.1991 vide Ext.3 by the defendant in his favour was shifted to the defendant for proving the allegations alleged by him(defendant) that, the so-called promissory note dated 03.04.1991 vide Ext.3 and his so-called signature on the Ext.3, i.e., Ext.3/a are forge by taking proper steps for sending Ext.3 to an expert, but, the defendant has not taken any step for the same before the trial court for examination of Ext.3 and Ext.3/a by an expert.

For which, the onus, which was laid on the defendant as per law has not been discharged properly, though the plaintiff has discharged his onus by proving through un-assailed testimonies of P.Ws.1 to 3 that, the promissory note vide Ext.3 was executed by the defendant in his favour on dated 03.04.1991 putting the signature of the defendant on the same vide Ext.3/a.

The conclusions drawn above finds support from the ratio of the following decisions :-

(i) In  a  case  between  Natabar  Behera  vrs.  Batakrushna Das : reported in 1999(II) OLR-319 that, Question, whether document is fabricated or forged is on the person, who alleges this fact. Defendant who challenged the document to be a fabricated one, he(defendant) should have sent it for opinion of the expert.

(ii) In a case between Lagadapati Dhanalakshmi and others vrs. Lagadapati Anjaeyulu : reported in IV(2009) Civil Law Times-523(Andhra Pradesh) (Para-20) that, Evidence of an expert is only on opinion evidence. Court would not act on said evidence, when other reliable evidence in proof of document available.

Here, in this suit/appeal at hand, when as per the discussions and observations made above, it was the duty of the defendant to get the signature vide Ext.3/a on Ext.3 examined through handwriting expert in order to establish that, Ext.3/a on Ext.3 is not his signature, but, the defendant has not done his such duty, then, at this juncture, it cannot be held that, the due execution of the promissory note vide Ext.3 by the defendant in favour of the plaintiff has not been proved, when the plaintiff has proved the due execution of the same by him(defendant) in his favour through the un-assailed testimonies of P.Ws.1 to 3.

For which, in other words, on being fully agreed with the concurrent findings and observations of the trial court and 1st appellate court, it is held that, the plaintiff has duly proved the execution of the promissory note vide Ext.3 by the defendant in his favour and by executing such Ext.3, the defendant had received of Rs.33,000/-(rupees thirty-three thousand) from him(plaintiff) on dated 03.04.1991 as hand loan in order to repay the same with interest thereon within six months, but, he(defendant) has not repaid the same.

Therefore, the judgments and decrees passed by the trial court and 1st  appellate court cannot be held erroneous.

So, the question of interfering with the same through this 2nd appeal filed by the defendant does not arise.

As such, there is no merit in this 2nd appeal filed by appellant(defendant). The same must fail.

In result, appeal filed by the appellant(defendant) is dismissed on contest, but, without cost.

The judgment and decree passed by the trial court as well as 1st appellate court in M.S. No.21 of 1993 and M.A. No.04 of 1994 respectively are confirmed.

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