Thoosimuthu Pandian vs Anthony

S. Palanivelu, J.—The petitioner is the defendant in O.S. No. 187 of 1997 on the file of the Additional District Munsif, Valliyoor. The respondent filed the suit for recovery of money on the strength of a promissory note reportedly executed by this petitioner on 06.01.1996 on receipt of Rs. 6,000/- from him agreeing to repay the same with interest at the rate of 36%p.a. In stead of repeated demands, there was no payment and hence, the plaintiff sent a suit notice on 10.04.1997. Even though the defendant received it, he did not send any reply. Hence, the suit.

In the written statement, it is alleged that the defendant did not receive Rs. 6,000/- from the plaintiff and he has not executed any promissory note in favour of the plaintiff. In fact, the defendant received a sum of Rs. 3,000/- as hand loan from the plaintiff before three and half years. However, he did not execute any promissory note for that amount. The plaintiff has taken 36% p.a. of interest for Rs. 3,000/- at the time of giving the loan. But, the said loan has become time barred. The defendant, afterwards, prior to four years, received Rs. 3,000/- from one Justus and he received the signature of the defendant in a blank stamped paper. The defendant settled the amount with him. The said Justus told the defendant that he has misplaced the said promissory note, and with the help of the above said signed unwritten blank stamped paper, the said Justus prepared the fabricated the promissory note by forging signature of this defendant. The plaintiff and Justus are close friends. The said promissory note does not contain the signature of this defendant. Hence, the suit may be dismissed with cost.

After full trial, the learned Additional District Munsif, Valliyoor, dismissed the suit without cost by observing that the plaintiff has not discharged his burden of proving the execution of the promissory note. The plaintiff carried the matter in appeal in A.S. No. 248 of 2002 on the file of the Principal District Court, Tirunelveli on 26.06.2003. The learned Principal District Judge allowed the appeal with costs of both Courts and also with interest.

The learned Counsel for the petitioner would submit that the findings of the lower Appellate Court are based upon surmises and conjunctures and not on legal evidence. His contention is three-folded. One is, PWs 2 and 3 have not supported the case of the plaintiff. Secondly, the comparison of signature taken up by the Appellate Court is not sustainable which was not in accordance with the settled procedures of law and thirdly, the lower Appellate Court has placed burden on the defendant wrongly, instead of laying it on the plaintiff.

As far as the oral evidence of PWs 2 and 3, who are attestors to Ex.A1 promissory note are concerned, it is their definite version that they signed the suit promissory note as attestors. However, both of them deposed in a same tone that they did not see the defendant signing the promissory note. They say that the promissory note with the signature of the defendant was brought and they signed it. While the evidence of Chief Examination of PW2 is carefully scrutinised, he says that he is the attestor to Ex.A1 and the defendant signed the promissory note. PW 3 in his Chief Examination, would say that he attested the promissory note executed by the defendant in favour of the plaintiff and that at the time of writing the promissory note, he was not present in the place. The harmonious reading and cumulative effect of the oral testimonies of PWs 2 and 3 would unambiguously establish a fact that they signed the suit promissory note which was written on receipt of Rs. 6,000/- by the defendant from the plaintiff. Viewing in this angle, the irresistible corollary would be, the execution of the suit promissory note has been proved by the plaintiff by examination of PWs 2 and 3. Even though there are some discrepancies available in the oral evidence of both the attestors, still their evidence would depict that the suit promissory note was executed by the defendant.

The next limb of contention of the learned Counsel for the petitioner is that the learned Principal District Judge should not have compared the admitted signatures of the defendant found in the Court records, namely, vakalat, written statement, etc., with the disputed signature in the promissory note, which is not in accordance with law.

In support of his contention, he would rely upon a Division Bench decision of this Court reported in 2006 (3) CTC 39, Central Bank of India (A nationalised Bank), rep. by its Manager, N. Gururajan, No. 1, Alaiamman Kovil Street, Teynampet, Chennai-600018 v. Antony Hardware Mart, rep. by its Proprietor, K. Subbiah, No. 113, Eldams Road, Teynampet, Chennai - 600 018 and Anr., wherein the learned Judges have opined that the comparison of signatures in vakalat and written statement with the disputed signatures cannot be held to be in accordance with law, referring to a decision of this Court reported in Somasundaram Vs. Palani, . It has been the consistent view of this Court that a disputed signature could be compared with the admitted signature of the party which are available in the documents of contemporaneous period.

The learned Counsel for the petitioner also garnered support from another Division Bench decision of this Court in 2008 (1) CTC 816, Ammani Ammal v. Dhanalakshmi Bank Ltd., Tiruppur and 6 Ors., wherein the disputed signatures had to be compared with the signatures relating to the earlier point of time. Insofar as the venture taken up by the learned Principal District Judge in comparing the signatures with the Court records, it is not in accordance with law and hence, such a comparison has necessarily to be discouraged.

It is the yet another leaf of contention of the learned Counsel for the petitioner that the Appellate Court has wrongly placed burden upon the defendant to disprove the execution. There could not be any negative proof. The finding as regards this aspect, that is to say, the burden of proof lies on the part of the defendant, is not proper. As expected by law, the plaintiff is anchored with the responsibility of discharge of the burden of proving that the suit promissory note was executed by the defendant.

A conspectus on the oral evidence and other circumstances, would pave way to conclude that the defendant received a sum of Rs. 6,000/- from the plaintiff on execution of the suit promissory note Ex.A1 and the judgment and decree passed by the learned Principal District Judge, Tirunelveli have to be confirmed and they are accordingly confirmed. The Civil Revision Petition is liable to be dismissed.

In the result, the Civil Revision Petition is dismissed with costs throughout. The respondent can recover interest at the rate of 9% from the date of promissory note till filing of the suit and afterwards 6% p.a. till payment.