Ganapathy Thevar vs Shanmuga Thevar

G. Rajasuria, J.—This second appeal is focussed as against the judgment and decree dated 29.11.1999 passed in A.S. No. 8 of 1999 by

the learned Sub Judge, Pattukkottai, in confirming the judgment and decree dated 30.07.1999 passed in O.S. No. 8 of 1989 by the learned

District Munsif, Pattukkottai.

The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.

Broadly, but briefly, succinctly but narratively, the case of the plaintiff as stood exposited from the plaint and the relevant records could be

portrayed thus:

The defendant in consideration of having received a sum of Rs. 3,600/- (Rupees Three Thousand and Six Hundred only), on 01.10.1985 executed

the suit promissory note, Ex.A.1, undertaking to repay the same with 12% interest perannum. However, the defendant committed default which

necessitated the plaintiff to file the suit.

The quintessence of the case of the defendant is that even though hesigned the suit promissory note format and also specified the amount at the

top of it, he did not fill up the body of the promissory note. He would also contend that he received a sum of Rs. 3,600/- (Rupees Three Thousand

and Six Hundred only), from the plaintiff only under an unauthorised chit transaction and he also discharged it. The plaitniff had chosen to file this

suit vexatiously. Accordingly, he prayed for the dismissal of the suit.

The trial Court framed the relevant issues. During trial, P.W. 1 and P.W. 2 were examined and Exs.A.1 to A.3 were marked on the side of the

plaintiff. D.W. 1 to D.W. 3 were examined and Exs.B.1 to B.3 were marked on the side of the defendant.

Ultimately, the trial Court dismissed the suit.

Being aggrieved by, the judgment and decree of the trial Court, the plaintiff preferred appeal in A.S. No. 8 of 1999, before the Sub Court,

Pattukkottai, which Court also dismissed the appeal, accepting the plea of the defendant.

Being dissatisfied with, the judgments and decrees of both the Courts below, the plaintiff preferred this appeal on the following main grounds

among others:

Both the Courts below erred in not taking into consideration the presumption as contemplated u/s 118 of the Negotiable Instruments Act, and also

the admissions made by the defendant as set out supra. Both the Courts below erred in comparing the self-serving document namely the diary of

the defendant with the versions found in the body of the promissory note and arrivedat the wrong conclusion that the versions found written in the

body of the promissory note differs from the writings in the diary of the defendant. Accordingly, he prayed for setting aside the judgments and

decrees of both the Courts below and for decreeing the original suit.

At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:

Whether the Courts below are right in dismissing the suit when there is a statutory presumption u/s 118 of Negotiable Instruments Act especially

when the defendant has admitted the signature in the promissory note.

Heard the learned Counsel for the appellant. Despite printing the name of the respondent, he has not chosen to appear.

The learned Counsel for the plaintiff would submit that even though the defendant admitted candidly that he signed the suit promissory note in

addition to having specified the amount at the top of the suit promissory note, yet both the Courts below without invoking the presumption as

contemplated u/s 118 of the Negotiable Instruments Act, rejected the claim of the plaintiff.

The judgments of both the Courts below, to say the least, are far from satisfactory. Here, is a case wherein the defendant would candidly admit

the receipt of a sum of Rs. 3,600/- (Rupees Three Thousand and Six Hundred only) from the plaintiff and also his signature in the suit promissory

note format, in addition to having admitted that he had filled up the amount column in his handwriting. In such a case, I am of the considered

opinion that Section 20 as well as Section 118 of the Negotiable Instruments Act, would come into operation. This is not a case where the plaintiff

obtained signature of the defendant in a blank stamped paper. The suit promissory note is in the printed format. As such, admittedly, the defendant

himself filled up the amount column at the top of the suit promissory note and signed beneath the already printed versions therein and that itself

would amount to promissory note. Top it all, a promissory note need not be in a particular form only, what are all required under the Negotiable

Instruments Act, is found set out under Sections 20 and 118 of the Negotiable Instruments Act.

The plaintiff clearly and categorically deposed that the defendant executed the suit promissory note only on receipt of Rs. 3,600/- (Rupees

Three Thousand and Six Hundred only) and not relating to any chit transaction. The defendant would come forward with a case as though there

was an illegal chit transaction and to support his plea, he also examined D.W. 3, who would blindly support the case of the defendant, by deposing

to the effect that he was one among the subscribers along with the defendant and participated in the chit; he lost his Katchayat book which

contained periodical endorsements made by the plaintiff relating to the chit transaction. If that be so, D.W. 1 should have been in possession of the

said Katchayat book, but he has not produced any such Katchayat book. As such, the plea of chit transaction and his alleged repayment do

constitute barely the ipse dixit of the defendant.

It is a trite proposition of law that in all cases, the burden of proof would be initially on the plaintiff and on his discharging the burden, it would

get shifted to the other side. Here, in this case, as has been already discussed supra, the plaintiff by his own deposition and by virtue of the

admission of the defendant that he put his signature in the promissory note and that the amount was specified by him at the top of the promissory

note in his own hand writing, shifted the burden to the defendant who merely relied on Ex.B.2, the diary to prove that his hand writing found in his

diary do not tally with the versions as found in the filled up promissory note. The Court cannot assume the role of an expert in comparing the

disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could

exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are all the salient features based

on which the finding is arrived at.

It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the

Courts below were not objective in analysing the impugned handwriting.

No carth blanche is given to any Court to simply compare the disputed handwriting with that of the admitted hand writings and arrive at a

subjective satisfaction about the similarities or dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both

the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the

defendant.

The learned Counsel for the plaintiff would convincingly argue that in the written statement, even though the defendant has not set out that he

was suffered from Parkinson''s disease, nevertheless during trial, he would plead as though he was suffering from such disease and that he was not

at all in a position to write without shivering. All these facts warrant expert analysis of the disputed hand writing. But, here both the Courts below

simply arrived at their subjective satisfaction that the impugned hand writing is not that of the hand writing of the defendant and that too by wrongly

comparing it with the handwritings in the diary of the defendant himself.

The learned Counsel for the plaintiff also correctly argued that the said diary is a self-serving document. At least, an ante litum motum

document should have been summoned by the trial Court at the instance of the defendant, from some authority who might be in possession of any

record or document of the defendant containing his handwriting. But, in this case, no such steps have been taken. As such, viewing the matter in

any angle, it is crystal clear that the judgments of both the Courts below cannot be sustained. Section 20 of the Negotiable Instruments Act, would

clearly demonstrate that once, the promissee signs the promissory note format, it becomes inchoate document and there upon, the promisee may

fill it up and file a suit. Section 118 of the Act would also come into operation in this case as the defendant clearly admitted that he received a sum

of Rs. 3,600/- (Rupees Three Thousand and Six Hundred only) and inconsideration of it, he specified the amount at the top of Ex.A.1 and signed

beneath the printed version.

The indubitable fact is that the defendant in response to the plaintiff''s pre-suit notice, did not give any reply and in order to camouflage and

conceal his own default, he would dish out a plea as though there was some panchayat and in that panchayat, the plaintiff agreed to withdraw his

pre-suit notice and that thereupon, only the defendant did not give any reply. D.W. 2 would support the plea of the defendant in a questionable

manner expecting the Court to assume and presume very many imponderables.

I am at a loss to understand as to how the defendant would be justified in simply deposing that he did not give reply due to some alleged

compromise at a dubious panchayat and that too when in fact, no panchayat minutes could be produced on the side of the defendant. Whereas the

plaintiff issued pre-suit notice in written form; if at all, any panchayat had been conducted, then there should have been some minutes recorded in

this connection or at least in that pre suit notice itself, the defendant should have taken steps to get an endorsement from the plaintiff to that effect.

These are all relevant facts which have not been considered by the Courts below and simply accepted the case of the defendant in an unjustifiable

manner.

In the wake of the clinching available evidence, the trial Court should have decreed the suit and the first appellate Court should not have

confirmed the dismissal judgment of the trial Court. Accordingly, the judgments and decrees of both the Courts below are liable to be set aside.

In the result, the second appeal is allowed, setting aside the judgments and decrees of both the Courts below and the original suit is decreed as

under. The defendant shall pay a sum of Rs. 3,600/- (Rupees Three Thousand and Six Hundred only) to the plaintiff with 12% interest from the

date of the execution of the promissory note till the date of filing of the suit and with 6%interest from the date of filing of the suit till the date of

realisation with costs throughout.