S. Abdul Muthalif vs N.S. Khader Oli Rowthar

K. Sampath, J.—The defendant in O.S.No.812/1983 on the file of the Principal District Munsif, Dindigul, is the appellant in the second

appeal.

The respondent herein filed the suit for recovery of money due on an assigned promissory note. His case was as follows:

The defendant borrowed a sum of Rs.3,000/- from one Vellaisamy on 9.1.1982 and executed a promissory note promising to repay the amount

on demand with interest at 12% per annum. He did not repay any amount to Vellaisamy. The plaintiff paid the principal and interest due on the

promissory note to Vellaisamy on 1.7.1982 and got an assignment from him. He called upon the defendant to pay the amount several times. He

caused a notice to be issued on 7.9.1982 through his Lawyer. The defendant did not pay any amount. The defendant was an agriculturist and

therefore interest was being claimed as per the provisions of Act 8/73 and Act 40/79. The defendant was possessed of a lot of properties. He was

not entitled to the benefits of Debt Recovery Act.

The defendant resisted the suit contending inter alia as follows:

He did not know who Vellaisamy was. In the suit promissory note, the signature was in Tamil; it was not his signature; and he was always in the

habit of signing only in English. There was some property dispute between the defendant''s father and his sister, who was the plaintiff''s mother-in-

law. There was enmity between the two families. On account of the same, the plaintiff had, in collusion with his close associate Vellaisamy, created

the suit promissory note. The defendant had not executed the suit promissory note. The suit was liable to be dismissed.

The trial Court framed the following issues:

Whether the suit promissory note has been a fraudulently got up document, and, whether it is supported by consideration?

How much is the plaintiff entitled to?

Additional issue:

To what relief the plaintiff is entitled?

On his side the plaintiff, besides examining himself as P.W.1, examined one Natarajan - an attestor to the promissory note as P.W.2, the original

promissee Vellaisamy as P.W.3, the scribe Mohammed Haniffa as P.W.4 and one Jinna - a Vakil''s Clerk as P.W.5. Exs.A.1 to A.5 were marked

on the side of the plaintiff - Ex.A.1 being the suit promissory note; Ex.A.2 the endorsement of assignment; Ex.A.3 the notice, dt.7.9.1982 issued

on behalf of the plaintiff; Ex.A.4 the acknowledgment signed by the defendant; and Ex.A.5 the series of signatures obtained from the defendant in

the course of his cross-examination.

On his side the defendant, besides examining himself as D.W.1, marked documents Exs.B.1 to B.5 - Ex.B.1 being a sale deed, executed by one

Syed Rowther in favour of Ameena Begum, wherein the defendant had signed as witness; Ex.B.2 an application by the defendant seeking

monetary assistance on behalf of his son; Ex.B.3 a passbook relating to Meenakshi Steel House in which the defendant was a subscriber; Ex.B.4

an identity Card, dt.17.11.1970, issued by the Department of Employment and Training to the defendant, and, Ex.B.5 the notice received by him

from the plaintiff''s counsel.

The documents - Exs.B.1 to B.4, were filed by the defendant to show that he had always been in the habit of putting his signature only in

English.

The trial Court, on the pleadings and on the oral and the documentary evidence, dismissed the suit by judgment and decree, dt.26.8.1996,

holding that the signature in Ex.A.1/suit promissory note did not tally with the signatures in Ex.A.5, and that there were several improbable

circumstances in the case which clearly showed that the suit promissory note could not have been executed by the defendant.

However, on appeal in A.S.No.13/1988, the learned Subordinate Judge, Dindigul by judgment and decree, dt.22.8.1988 allowed the appeal,

set side the dismissal of the suit by the trial Court and decreed the suit as prayed for. It is, as against this, the present second appeal has been filed.

At the time of admission, the following substantial question of law was framed for decision:

Whether the first appellate Court is right in decreeing the suit without reversing the finding rendered by the trial Court with reference to the

disputed signature of the defendant?

The appellant has also taken out an application in CMP No.14764/1989 for reception of additional evidence, the document sought to be

produced being his S.S.L.C book containing his signatures in English. In the affidavit, in support of the application, it is stated that the first appellate

Court decreed the suit relying on the oral evidence of the plaintiff''s witness instead of the findings of the trial Court, evaluating the admitted and the

disputed writings in Ex.A.5 and Ex.A.1, that the first appellate Court, in the course of the judgment, has drawn adverse inference against the

defendant in not producing the S.S.L.C. Book to establish that he signed only in English even at the time of leaving the School, that the question of

producing the document did not arise during the trial as it was never contended by the plaintiff that the defendant used to sign both in Tamil and

English, and that as the first appellate Court did not afford him an opportunity to produce the book, the application has been taken out.

Mr. Mohan, learned counsel for the appellant, submitted that the lower appellate Court failed to advert to the fact that the respondent had not

produced any admitted signature of the defendant for comparison with the disputed signature found in Ex.A.1. The learned counsel drew my

attention to the artificiality in the nature of the evidence, adduced on the side of the plaintiff, particularly when, admittedly, there were disputes

between the plaintiff''s mother-in-law and the defendant''s father. The lower appellate Court omitted to note that all the witnesses, examined on the

side of the plaintiff, were either relatives or persons well acquainted with the plaintiff, and as such their testimony was only interested testimony.

According to the learned counsel, the very endorsement of assignment had been done more to add credence. The lower appellate Court had not

set aside the finding by the trial Court that the writings in Ex.A.5 did not tally with the disputed writing in Ex.A.1. The lower appellate Court was

also in error in holding in one breath that the disputed signature need not have been examined by an expert and it was unnecessary, and at the same

time finding fault with the defendant for not taking steps to have the disputed signature compared with the admitted signature. He also brought to

my notice that there were discrepancies regarding the dates of pronote as found in Ex.A.3-notice and its copy/Ex.A.5 served on the defendant.

According to the learned counsel, the observation by the lower appellate Court that the defendant could have signed in Tamil, in spite of the

various documents - Exs.B.1 to B.4, marked on his side, which clearly established that he was in the habit of signing in English only.

Though the respondent had been served, he has not chosen to appear and contest the case. I therefore, appointed Mr. T.M. Hariharan as

amicus curiae to assist the Court.

I have very carefully gone through the pleadings, the oral and the documentary evidence, and, in my view, the plaintiff had not proved the

execution of Ex.A.1 by the defendant. The lower appellate Court grievously erred in finding that the defendant had, indeed, executed Ex.A.1. A

comparison of the disputed signature in Ex.A.1 with the signatures obtained in Court during cross-examination by the plaintiff''s counsel and

marked as Ex.A.5, leaves me with no doubt that the defendant had not signed in Ex.A.1/promissory note. May be, when asked to sign, during

cross-examination, the defendant could have deliberately changed his mode of signing, but, even there some slip would be there and he would be

exposed. I have myself compared the signature in Ex.A.1 with the signatures found in Ex.A.5 and in my view the signature in Ex.A.1 is a rank

forgery. Further, the defendant had been crying hoarse that he had always been in the habit of putting his signature in English. To substantiate this

case of his, he produced Exs.B.1 to B.4. In all these documents, the plaintiff had signed only in English. The learned Subordinate Judge has made a

comment that it was too much for a person whose mother tongue was Tamil to say that he would sign only in English. This comment, in my view, is

totally unwarranted. We have come across cases day in and day out, where even parties not knowing English, learn to sign their names in English

and actually sign papers and documents in English. The learned Subordinate Judge made a further comment that the defendant had not been able

to say in which language he signed in his SSLC Book, and that he had not produced the Book. The appellant/defendant is perfectly justified in his

complaint that the learned Subordinate Judge ought to have afforded an opportunity to him to produce his SSLC Book to find out whether he had

signed the SSLC Book in English or in Tamil. Such an opportunity not having been afforded and the appellant also having been criticized, and the

non-production of the SSLC Book having been commented upon, he has taken out the present application for production of his SSLC Book. A

clear case is made out for reception of the document under Order 41 Rule 27 CPC. Interest of justice also requires that the document is received

in evidence. I therefore allow the petition for reception of additional evidence. The SSLC Certificate is directed to be received as additional

evidence and it will be marked as Ex.B.6. It is seen from the SSLC Book that even as a student, the defendant had signed only in English. All the

documents produced by the defendant clearly show that he was always in the habit of signing only in English. The plaintiff has not produced any

material to rebut the same. He ought to have obtained some material to show that the defendant was also in the habit of signing in Tamil. In fact,

even the acknowledgment Ex.A.4, dt.10.9.1982 has been signed by the defendant only in English. All these, conclusively establish that the

defendant had always signed only in English.

Mr. T.M. Hariharan, Amicus Curiae submitted that a comparison of the signatures found in Ex.A.5 with the disputed signature in Ex.A.1 would

show the similarity between the two. I do not find any such similarity, as pointed out by Mr. T.M.Hariharan. On the contrary, I find that the

disputed signature gives the name as "" Kj;jypg;g["" while the signatures in Ex.A.5 show the name as "" Kj;jypg;"" I am satisfied that the plaintiff has

not established Ex.A.1 to be a true document. I also find in Ex.A.1 that the name of the attesting witness Natarajan has been inserted subsequently,

after the scribe had completed the document. This also creates suspicion regarding the genuineness of Ex.A.1. In cross-examination, the plaintiff

has admitted that the scribe was his relation, that the attestor Natarajan Achari was a close friend of his, that he brought both, the scribe and the

attestor, that the attestor to Ex.A.2 endorsement was Bari, a relative of his, and even for Ex.A.2, he brought Hanifa and Bari. He conveniently says

in cross-examination that he did not remember as to how much interest he gave for the assignment. The evidence with regard to execution and

attestation of Ex.A.1 is also very artificial. Then, T.M. Hariharan submitted that the defendant had received the notice and he had not sent any

reply, and no proper explanation had been given by the defendant for not sending any reply to the suit notice, and that would clearly show that the

defendant''s case was not true. I do not agree. Merely on the basis of the non response to the suit notice, there cannot be a decree against a party.

It will depend on the facts and circumstances of the individual cases.

For all the reasons stated above, I am clearly of the view that the lower appellate Court had erroneously allowed the appeal of the plaintiff and

decreed the suit. It had misapplied the principles of law and misread the documents and drawn inferences against the defendant which were totally

uncalled for. Grave injustice having been done to the defendant, this Court is entitled to interfere u/s 100 CPC. Accordingly, the substantial

question of law is answered in favour of the appellant. The second appeal is allowed. The judgment and the decree of the lower appellate Court

are set aside and those of the trial Court restored. No costs.

I place on record the excellent assistance rendered by Mr. T.M. Hariharan as Amicus Curiae.