Ramaraj vs T.N.V. Durairaj and R. Kumaravel

Honourable Mr. Justice P. Devadass

The first defendant, in O.S.No.14 of 2004, on the file of Additional Sub-Court, Thanjavur is the appellant. The plaintiff instituted the suit based on Ex.A.1 promissory note dated 26/3/2001 alleging that the appellant/ 1st defendant and second defendant have borrowed Rs.3 lakhs with 12% interest p.a., however, in spite of receipt of (Exs.A.3 and A.4 postal acknowledgments) Ex.A.2 notice they have not paid the amount.

First defendant contended that the second defendant sought for a loan of Rs.7 lakhs for his wine shop business from one Karuppaiah, who insisted upon 1st defendant signing the promissory note as a witness. In the circumstances, six years ago, first defendant had signed in three blank promissory notes as witness and gave them to the second defendant. In view of the subsequent enmity between them, 2nd defendant with the connivance of plaintiff fabricated first defendant''s signature on the revenue stamp in Ex.A.1 and filed the suit. Since it was thought that the matter should be settled in the Panchayat, first defendant did not reply his notice.

Second defendant filed written statement affirming the receipt of Rs.3 lakhs by the first defendant under the suit promissory note and stated that the

Upon the said divergent pleadings, trial Court framed the necessary issues and tried the suit. The plaintiff Durairaj examined himself as P.W.1 and the scribe Kumar as P.W.2 and marked Exs.A.1 to A.4, while the first defendant Ramaraj examined himself as D.W.1 and marked Exs.B.1 and B.2, while the second defendant Kumaravel examined himself as D.W.2.

Upon considering the rival submissions and the evidence on record, the trial Court came to the view that since the first defendant had admitted his signature near the promissory note and denied his signature over the promissory note, he has to establish his this plea, but he did not do so, relying on the evidence of plaintiff, decreed the suit as prayed for against both the defendants.

Aggrieved, 1st defendant - appellant in A.S.No.8/2005 to the Principal District Court, Thanjavoor, which had upheld the trial Court''s decree, aggrieved, the first defendant directed this Second Appeal.

At the time of admission of this Appeal, this Court framed the following substantial questions of law for consideration:

(i). Whether the judgment and decree of the Court below is perverse on account of its misconstruction of Ex.A.1 document?

(ii). Whether the judgment and decree of the Court below is erroneous on account of its reliance u/s 118 of the Negotiable Instruments Act for decreeing the suit ignoring the pleadings and especially the written statement filed by the appellant?

The learned counsel for the appellant contended as under:

(i). When the Court comes to the conclusion that the Courts below have rendered unreasonable findings, this Court in Second Appeal can efface those findings. (See Ramlal and Another Vs. Phagua and Others,

(ii). Appellant''s signature over the revenue stamp has been denied, in such circumstances, the attesting witness should have been examined. (See R. Chinnadurai Vs. S. Rajalakshmi,

(iii). Even if the appellant admits his signature, mere admission of signature is not admission of execution of document. The onus is upon the plaintiff to prove execution of document. (See Kapil Corepacks Pvt. Ltd And Others Vs. Shri Harbans Lal 2010 (8) MLJ 1087 (SC)).

(iv). The first defendant pleads that his signature has been forged. In such circumstances, the suit has to be dismissed. (See Madam Pillai Vs. Athinarayana Pillai and Another AIR 1925 Madras 929 and Krishnankutty Vs. Velayudhan and Others AIR 2005 Kerala 124.

(v). It is the primary duty of the plaintiff to prove that the signature over the revenue stamp is of the first defendant. Plaintiff should let in expert evidence also. (See Raju Vs. Raju CDJ 2011 MHC 5942 and Dr. Indra Raja & Anotehr Vs. John Yesurethinam @ Durai CDJ 2011 MHC 5846).

(vi). In this view of the matter, both the Courts below have not properly construed Ex.A.1 and wrongly decreed the suit also against the appellant/first defendant.

On the other hand, the learned counsel for the respondent/plaintiff contended that by letting evidence plaintiff had proved the execution of the promissory note by the first defendant also. Plaintiff had discharged his initial burden. In the circumstances, the presumption u/s 118 of the Negotiable Instruments Act arises. The first defendant is a knowing man, a V.A.O. He had signed in Ex.A.1. He had admitted his signature in one part of Ex.A.1, but denied his signature in the other part. In the circumstances, he should establish it. This onus is upon him. That apart, his pleadings in the written statement and his evidence exposes falsity of his plea. In the circumstances, the Courts below have correctly judged the issues and decreed the suit. There is no occasion here to interfere with the concurrent findings of the Courts below.

It is stated by plaintiff that Ex.A.1 promissory note dated 26/3/2001 has been jointly executed by first defendant (appellant) and the second defendant (second respondent) in favour of the plaintiff (first respondent) for receipt of Rs.3 lakhs agreeing to repay it with interest at 12% p.a. It was scribed by P.W.2 Kumar.

P.W.1 plaintiff Durairaj deposed in extension as to the execution of the promissory note by both the defendants for the receipt of Rs.3 lakhs by the first defendant. Ex.A.2 notices also have been issued to them. They were received by them under Exs.A.3 and A.4 postal acknowledgments. This was not replied to by the defendants. P.W.2 Kumar in his evidence narrated his scribing of Ex.A.1.

The second defendant did not deny execution of Ex.A.1 promissory note. However, he would say that the said Rs.3 lakhs has been received by first defendant alone, he had signed in Ex.A.1 only as a guarantor.

However, the first defendant/appellant in his written statement pleaded that the second defendant sought for his assistance for getting loan from his relative Karuppaiah, who had demanded him (first defendant) to sign in the promissory note as a witness as a condition to pay him the loan, accordingly, he had signed in the blank promissory note only as a witness.

First Defendant admits his signature near the promissory note. But, says that he put it only as a witness. And, he denies his signature over revenue stamp affixed in Ex.A.1. He says that his signature has been forged.

Thus, the first defendant admits his signature in one part of the promissory note, but denies his signature in the other part of the promissory note.

Plaintiff came forward with the plea/assertion that the defendants have executed the suit promissory note for the receipt of Rs.3 lakhs. The initial burden of prooving it is on the plaintiff is upon him. It will not shift. If no evidence is let in, plaintiff will fail (See Sections 101 and 102 of the Indian Evidence Act). So, the duty to prove the execution of the promissory note is primarily on the plaintiff. He had produced the very promissory note. He had deposed himself and examined the scribe (P.W.2). So, he has discharged his initial burden. Once the initial burden is discharged by a party (plaintiff), then the onus of dislodging it is on the defendant (first defendant). If he dispel it, then again, the duty of the plaintiff to thrash it down arises. That is why it is said that onus is ambulatory in nature. It is like a shifting stand. It will swing like a pendulum.

In his written statement, first defendant introduced a version as to his signature over the revenue stamp in Ex.A.1 promissory note. According to him, he signed the promissory note as a witness and then it was blank. In the circumstances, he should prove that the signature over the revenue stamp is not of him. But, he did not offer any expert evidence or other acceptable evidence to show that the signature is not of him.

The first defendant had received plaintiff''s Ex.A.2 notice from the plaintiff containing allegation that he has executed Ex.A.1 promissory note for his receipt of Rs.3 lakhs from him. But, he did not reply. He says that he kept quiet because they have decided to settle it in the Panchayat. But, no evidence to show that any Panchayat was held or attempted and failed. First defendant has been put on notice in writing alleging his execution of promissory note. In the circumstances, it is incumbent upon him to reply in writing to the allegations contained in Ex.A.2 suit notice. But, he did not do it. The reasons given by him is unpalatable.

The specific plea of the first defendant is that he acted as an introducer to Karuppaiah, signed in three blank promissory notes as a witness and gave them to second defendant. But, in his evidence, he says that he had given four such unfilled promissory notes with his witness signature. He admits that he did not issue any notice nor take any steps to get back the balance unfilled promissory notes from the second defendant nor he ever issued any notice to Karuppaiah to know about the fate of his alleged unfilled promissory notes with his witness signature. Karuppaiah is related to him. First defendant swore in his evidence that he is ready to examine him. But, he did not examine him.

Appellant is a Village Administrative Officer. He is a knowing man. It raises our eye-brows to hear him saying that simply he had signed in the blank promissory notes as witness and entrusted them to another person. Further, it looks odd that based on an unholistic alliance between the plaintiff and the second defendant, the so called blank promissory notes with his witness signatures were forged. If forged, he will not keep quiet. He admits that he had ever complained to Police about the high-handedness of the plaintiff and the second defendant.

Exs.B.1 and B.2 relates to suits filed by second defendant''s father-in-law and others with regard to some temple lands for the village common issues. It has nothing to do with the execution of Ex.A.1 promissory note by first defendant. A motive has been suggested to P.W.2 to speak against the first defendant. But it remained only a figment of imagination of the appellant.

A comparison of the signature over the revenue stamp with the signature of the first defendant, near the revenue stamp and in the Vakalat and other Court records shows that they are all similar.

In Ex.A.1, one Ashok has signed as an attestor. In his cross-examination, P.W.1 had stated that after defendants 1 and 2 and P.W.2, none has signed in Ex.A.1. But, if we read the whole evidence, it would show that one Ashok in the house of plaintiff had attested it.

Nearly, after three years of execution of the promissory note, P.W.1 had been examined in the Court. We cannot expect him to keep in his mind the minute details. But in his evidence, he had deposed as to the material aspects of his case and Ex.A.1 promissory note. In the circumstances, non-examination of attesting witness does not assume signal importance in this case.

In R. Chinnadurai Vs. S. Rajalakshmi, , it was held that when the execution of sale agreement is denied, the attesting witness should have been examined.

Ex.A.1 is not a title deed. It is a promissory note. As per law, no attesting witness is necessary for a promissory note. In the circumstances, Chinnadurai does not applies to the facts of this case.

All goes to show that the signature over the revenue stamp in Ex.A.1 is of the first defendant. We do not find any forgery in it. So, the presumption u/s 118 of the Negotiable Instruments Act that Ex.A.1 has been executed for valuable consideration by the defendants arises. But, first defendant had not rebutted it by acceptable evidence.

In the facts and circumstances of this case, (a). Madam Pillai Vs. Athinarayana Pillai and Another, , (b). Krishnankutty Vs. Velayudhan and Others, and (c). Kapil Corepacks Pvt. Ltd and Others Vs. Shri Harbans Lal 2010 (8) MLJ 1087 (SC) are not applicable to this case.

Thus, in view of the foregoings, it is seen that taking into account the pleadings of the parties and the evidence on record, the Courts below have correctly construed Ex.A.1 suit promissory note and rightly held that the presumption u/s 118 of the Negotiable Instruments Act arises as against the defendants. In the circumstances, the substantial questions of law are answered as against the appellant. In the result, this Second Appeal is dismissed with costs. The decree and judgment of the trial Court/Additional Sub-Judge, Thanjavur in O.S.No.14 of 2004 and of the First Appellate Court/Principal District Court, Thanjavur in A.S.No.8 of 2005 are confirmed.