Mangammal vs Ramasamy

M. Duraiswamy, J.—The above Second Appeal arises against the judgment and decree passed in A.S. No. 85 of 2006 on the file of Subordinate Court, Kallakurichi confirming the judgment and decree passed in O.S. No. 603 of 2004 on the file of II Additional District Munsif Court, Kallakurichi.

The defendant is the appellant and the respondent was the plaintiff in the suit.

The plaintiff filed the suit in O.S. No. 603 of 2004 for a recovery of a sum of Rs. 37,740/- with subsequent interest.

The brief case of the plaintiff is as follows:-

According to the plaintiff, the defendant borrowed a sum of Rs. 30,000/- on 27.9.2000 and executed a demand promissory note in his favour agreeing to repay the loan amount together with interest at the rate of 12% per annum. Since the defendant failed to repay the loan amount, the plaintiff issued a notice dated 21.12.2002 to the defendant. In spite of the same, the defendant failed to repay the same, therefore, the plaintiff filed the suit for a recovery of a sum of Rs. 37,740/- with subsequent interest.

The brief case of the defendant is as follows:-

According to the defendant, she did not borrow any amount from the plaintiff and the suit promissory note is a forged and fabricated document. According to the defendant, she is an illiterate woman and with a view to grab the property bequeathed in her favour, the plaintiff had fabricated and forged the document and filed the suit. In these circumstances, the defendant prayed for dismissal of the suit.

Before the trial court, on the side the plaintiff, P.W. 1 was examined and 3 documents Exs. A1 to A3 were marked and on the side of the defendant, D.W. 1 was examined and Ex. B1 was marked.

The trial court after taking into consideration, the oral and documentary evidences of both parties, decreed the suit. Aggrieved over the judgment and decree of the trial court, the defendant preferred an appeal in A.S. No. 85 of 2006 on the file of Subordinate Court, Kallakurichi and the lower appellate court also confirmed the judgment and decree of the trial court and dismissed the appeal. Aggrieved over the judgment and decree of the courts below, the defendant has filed the above Second Appeal.

Heard Mr. Mukunth, learned Counsel appearing for the appellant and K.A. Ramakrishnan, learned Counsel appearing for the respondent.

At the time of admission of the above second appeal, the following substantial questions of law arose for consideration:-

(a) Whether the courts below are correct in law in comparing the disputed signature with the recent signatures of the appellant totally overlooking the various judicial pronouncements that signature should be compared with contemporaneous documents?

(b) Whether the courts below are correct in law in overlooking the Ex. A1 is an inchoate document containing interpolations?

(c) Should not the Courts below have drawn an adverse inference from the refusal of the alleged witnesses of Ex. A1 to give evidence and the failure of respondent/plaintiff to take proceedings against them for refusing to comply with the summons?

On a careful consideration of the materials available on record and the submissions made by the learned Counsel on either side, it could be seen that the main defence taken by the defendant was that she did not borrow any amount and that she did not execute Ex. A1 promissory note in favour of the plaintiff. However, the trial court compared the signature found in Ex. A1 promissory note with the signature found in the suit summons and found that the signature found in Ex. A1 promissory note is that of the defendant. That apart, the plaintiff had also categorically stated about the execution of the promissory note. Since the defendant had admitted her signature in the written statement, the presumption would work against her under section 118 of the Negotiable Instrument Act. In order to prove that no consideration has been passed as on the date of the execution of the promissory note and that it was executed for the different purpose, the defendant should have let rebuttal evidence. In the case on hand, except the evidence of D.W. 1, no one was examined to prove the contention raised in the written statement. Taking into consideration all these aspects, the courts below rightly decreed the suit.

In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs.