N. Balarama Reddy vs Sarathy Enterprises and five others

Srinivasan, J.—Syndicate Bank, Karur Branch, filed the suit out of which this appeal arose for recovery of a sum of Rs. 89,522.35. The first

defendant is a Firm by name Sri Sarathi Enterprises represented by its Managing Partner, T.V. Ramana Reddy. The Partners of the Firm are

defendants 2 to 6. The suit is based on a promissory note dated 24-11-97 . The first defendant firm has also availed of overdraft facilities and had

not repaid the amounts due to the Bank, After issuing a notice, the plaintiff filed the suit. The only person who sent a reply to the notice is the

second defendant. The plaintiff sent a rejoinder to the reply notice and then filed the suit. The only person who filed written statement in the suit

contesting the same was the sixth defendant. According to him, he was not a Partner of the Firm and he did not know either the Firm or the

Partners thereof. He had nothing to do with the suit transaction of the firm. According to him, the suit promissory note was a forgery. Any

document which purports to contain his signature is a forgery.

The plaintiff produced as many as 15 documents and examined its Manager who spoke about the transaction as well as the connection of the

sixth defendant as a Partner of the Firm. The sixth defendant was the only witness on his side. He denied the signatures found in the documents

produced by the plaintiff. The trial Court considered the matter fully and came to the conclusion on the available evidence, that the sixth defendant

was proved to be a Partner of the Firm and he had also signed the suit promissory note besides the Application Form for loan. The trial Court

found that the pleas raised by the sixth defendant were false with the result, the suit was decreed as prayed for.

The present appeal has been filed by the sixth defendant. The suit was of the year 1979. It was disposed of on 16-4-1981. The present appeal

was presented on 12-10-1981 and taken on file on 29-11-1983. The appellant has chosen to file a petition on 23-3-1994 u/s 151 of the CPC for

sending Exhibits A-1 to A-6 filed in the suit to a Handwriting Expert at his cost and permitting him to examine the Hand Writing Expert us a

witness on his side. The Learned Counsel appearing for the appellant contends that if the documents are examined by a Hand Writing Expert, it

will be seen that the signatures found on those documents are not the signatures of the appellant and the documents are forged. Learned Counsel

prays for an opportunity to the appellant to prove his case.

There is no explanation as to why the appellant did not seek to have the documents examined by an Expert when the suit was pending in the trial

Court nor is there any explanation for not filing the Application for nearly eleven years after the filing of the present appeal. Apart from that, the

prayer in the petition is not sustainable, as it has been consistently held by this Court that no document can be sent out of Court to be examined by

any Expert in T.A. Narasimhan v. Narayana Chettiar (1968 II M.L.J. 48), a single judge of this Court has held.

The Court below was clearly in error in acceding to this extraordinary request of the plaintiff. When the document is sent to the expert it is

expected that he will submit the report and he will also be examined either on commission or in open Court at the instance of the party concerned.

It must not be overlooked that the handwriting expert is after all a witness of a particular party, and the expert could occupy no other role except

that of a witness on the side of the defendant in this case. In these circumstances it is impossible to justify the order of the lower Court compelling

the defendant to choose a witness according to the dictation of the plaintiff.

It frequently happens that such applications for examination of the documents by handwriting experts are made at a late stage protracting and

holding up the proceedings. In the instant case the Court below failed to appreciate that an old suit of 1962, is being protracted by such

applications. When the disputed documents were sent to the handwriting expert for comparison on the earlier occasion one would expect the

defendant to send as many admitted signatures as he may desire, so that the examination and scrutiny of the documents would be finished once and

for all. Encouraging such repeated applications would only protract and delay the trial of the suit and should be discountenanced. When the matter

goes back to the Subordinate Judge he must consider whether in his discretion this indulgence should be given to the defendant it this related stage.

Repeated instances have come to the notice of this Court when applications are lightly made for sending original documents on which suits are

filed, like promissory notes and mortgage bonds, to the handwriting experts, the Court itself losing the custody of the documents. Receipts

containing signatures, the genuineness of which are in dispute are similarly sent to handwriting experts. I am clearly of the opinion that this is a highly

objectionable and a very bad procedure. Under no circumstances should a Court permit or allow the documents to go out of its custody, as such

an evil practice is attendant with various risks which are too obvious to be maintained. In the case of enquiries by Commissioners or proceedings

by Receivers, who are officers of Court, they are permitted to have access to documents, as they are under the direct control, supervision and

jurisdiction of the courts which appoint them, and there is thus ample safeguard when original documents are taken by the Commissioners or the

Receivers. In my view the proper procedure in such cases would be only to permit the Handwriting Expert to inspect the document in the Court

premises in the presence of some responsible officer of the Court, and also if necessary permit the expert to have photographic copies of

documents in the presence of the responsible officer of the Court. Any lapse in taking the necessary safeguards in this direction may result in

miscarriage of justice, besides creating complications.

We are entirely in agreement with the view expressed by the learned Single Judge in that case. Hence, the prayer to send the documents to a

handwriting expert cannot be granted.

We have already pointed out that there is no explanation as to why the appellant did not make any attempt to get the documents examined by

the handwriting expert. In the absence of such explanation, we do not find any reason whatsoever to give an opportunity to the appellant at this

distance of time. The evidence on record clearly goes to show that the appellant was a signatory to the suit promissory note marked as Ex. A-4

and also the other documents filed by the plaintiff.

The one significant factor is that the appellant has not suggested any motive to fabricate a document implicating him and making him liable

thereon. According to him, he does not know either the first defendant or the partners thereof and he has nothing to do with the transactions of the

firm. He has never gone to the Plaintiff-Bank and signed any document. The Manager of the plaintiff-Bank, had given evidence categorically that

the appellant was present and he signed the promissory note and other document Nothing is suggested in cross-examination as to why he should

give false evidence against the appellant"".

It is admitted by the appellant that the third defendant in the suit is his own brother. He is stated to be a B.A. (Hons) graduate. The appellant has

not suggested as to why his brother should turn against him and keep quiet if really the appellant is not a party t0 the promissory note. As pointed

out already, defendants 1 to 5 remained ex parte and the third defendant being the brother of the appellant would have come to support the

appellant if really the appellant had not signed the promissory note as contended by him.

Before the suit was filed, a notice was issued to the appellant''s address at Nellore. The postal acknowledgement is marked as Ex. A-15. The

signature on Ex. A-15 is similar to the admitted signatures of the appellant found in the written statement and the vakalath in this case. The

appellant has admitted that there is no other person by name Balarama Reddy in Mypaud, Nellore taluk and that there is no enmity between him

and the Postal Department. Hence, there is no reason to think that the personnel of the Postal Department would have forged the appellant''s

signature and sent false acknowledgements to the plaintiff. The appellant had not sent any reply to the suit notice.

The ether disputed signatures are also compared by us with the admitted signatures of the appellant. We find that the signatures are similar and

there is no reason to doubt their genuineness. The appellant has admitted that there is no enmity between him and the personnel of the plaintiff-

Bank or the other defendants in the suit. He has also admitted (sic) the second defendant is a house owner and (sic) rented out his buildings to the

Bank. If really (sic) claimed by the appellant he does not know anything about the second defendant, he (sic) to give several details about the

second defendant''s properties. A perusal of the evidence of the appellant shows that he is not speaking the truth. Excepting the making of (sic)

bare denial, the appellant has not chosen to make any suggestion acceptable to the Court.

We have gone through the entire evidence on record and the judgment of the Court below. We find that the Court below discussed the entire

evidence and there is no infirmity whatever in the appreciation of the evidence. We are in agreement with the view taken by the Court below. We

hold that the case of the appellant is false and he is a party to the said transaction. Therefore, he is liable to pay the amount to the plaintiff. In the

result, the Appeal and (sic) Miscellaneous Petition No. 5210/1994 (sic) dismissed. The appellant shall pay the costs of the 6th respondent/plaintiff

Ban(sic) in the appeal. No costs in C.M.P. No. 5210/1994.