P. Stanley Buck v. D. Govindaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.08.2009CORAM:THE HONOURABLE MR. JUSTICE K.K.SASIDHARANA.S.No.719/1998P.Stanley Buck ..Appellant/DefendantVs.D.Govindaraj ..Respondent/PlaintiffAppeal filed against the Judgment and Decree dated 23.01.1998made in O.S.No.1599/1993 on the file of the learned I AdditionalSubordinate Judge, Coimbatore.For Appellant : Mr.B.NedunchezhianFor Respondent : Mr.K.KalyanasundaramJ U D G M E N TThis first appeal is directed against the Judgment and Decree inO.S.No.1599/1993 on the file of the I Additional Subordinate Judge,Coimbatore whereby and whereunder, the suit filed by the respondentpraying for a money decree on the basis of the promissory notesstated to have been executed by the respondent was decreed.2.The suit in O.S.No.1599/1993 was preferred by the respondentagainst the appellant on the basis of two promissory notes alleged tohave been executed by the appellant on 24.02.1990 and 28.02.1990.3.In the plaint in O.S.No.1599/1993, it was the contention ofthe respondent that the appellant approached him for a loan andaccordingly, a sum of Rs.1,50,000/- was advanced on 24.02.1990 and afurther sum of Rs.50,000/- on 28.02.1990. The appellant has alsoexecuted two promissory notes agreeing to pay the amount withinterest. However, the appellant failed to pay the amount, which madehim to file the suit on the basis of those two promissory notes.4.The suit was contested by the appellant by filing writtenstatement. The appellant categorically denied the execution of thepromissory notes as well as receipt of consideration. It was furthercontended that the respondent has no financial capacity to advancesuch a huge amount and as such, the alleged payment was made up onlyfor the purpose of getting a decree. In short, the appellant denied https://hcservices.ecourts.gov.in/hcservices/ the execution of promissory note, receipt of consideration, and alsodisputed the capacity of the respondent to advance money.5.The learned Trial Judge framed the following issues forconsideration :-(i)Whether the plaintiff is entitled torecover money from the defendant ?(ii)Whether the contention of the defendantthat the suit promissory notes were not executedby him is true ?(iii)To what relief he is entitled to ?6.During the course of trial, PW-1 and PW-2 were examined on theside of the respondent and Exs.A-1 to A-9 were marked. The appellantwas examined as DW-1 and Exs.D-3 to D-3 were marked on his side.7.The respondent as PW-1, deposed that an amount of Rs.2 lakhswas advanced to the appellant on two occasions and it was covered bythe promissory notes marked as Exs.A-1 and A-2. PW-2 - Rajamani was awitness to the transaction and in fact, the said witness was broughtby none other than the appellant at the time of execution of thepromissory notes. The respondent has also marked Exs.A-6 and A-7 insupport of his contention that he was engaged in Real Estate businessand as such, he has the means to advance money to the appellant.During the time of cross examination, the respondent, deposed that hewas not educated properly and as such, he was not in a position tosay about the figures as made mentioned in Exs.A-1 and A-2. However,PW-1 maintained that the amount was in fact paid by him to theappellant and it was witnessed by PW-2.8.PW-2 Rajamani was examined to speak about the execution ofExs.A-1 and A-2. According to PW-2, he was working as Supervisor inL.N. Hospital and both the appellant and the respondent were known tohim for about 9 to 10 years. It was only the appellant who requestedhim to accompany to the residence of the respondent and thepromissory notes were signed in his immediate presence. He alsosigned as a witness in Ex.A-1 and A-2.9.The appellant was examined as DW-1 and even during hisevidence, he denied the execution of Exs.A-1 and A-2. According tothe appellant, he knew Dr.Ramachandran of L.N. Hospital since 1977.DW-1 was doing poultry business earlier. During his crossexamination, he admitted that there was necessity for him to takeloan for his business. But he was not sure as to the amount of loantaken by him, how much was repaid and other details about thecreditors. There were two other suits pending against him besides theone another suit filed by the respondent. https://hcservices.ecourts.gov.in/hcservices/

10.The learned Trial Judge answered the issues one after anotheron the basis of pleadings and in the light of the evidence tenderedby the parties. The learned Judge agreed with the case projected bythe respondent to the effect that Exs.A-1 and A-2 were executed bynone other than the appellant. In order to arrive at such aconclusion, the learned Judge compared the signature of the appellantas found in Exs.A-1 and A-2 with the signature as found in thewritten statement. The learned Judge also found that the respondentwas having necessary financial resources to advance money which wasevident from Exs.A-6 and A-7. The learned Judge also relied on theevidence of PW-2 for his conclusion that Exs.A-1 and A-2 wereexecuted only by the appellant. Accordingly, the suit was decreed asprayed for.11.It is the said Judgment and Decree dated 23.01.1998 which isimpugned in the present appeal.The point :-12.Points that arise for consideration in this first appeal areas follows :-1.Whether the respondent was having thefinancial capacity to advance the amount as shownin Exs.A-1 and A-2 ?2.Whether Exs.A-1 and A-2 were executed bythe appellant ?3.Relief to which the parties are entitledto ?Submissions :-13.The learned counsel for the appellant contended that thelearned Trial Judge shifted the burden on the appellant to prove thatthe promissory notes were actually executed by him. According to thelearned counsel, evidence of PW-1 was not consistent and as such, noreliance could be placed on the said evidence. The learned TrialJudge was not correct in his approach in comparing Exs.A-1 and A-2with the signature as found in the written statement filed long afterthe execution of those documents. It was his further contention thatthe documents in Exs.A-6 and A-7 shows that the appellant has enteredinto a sale agreement and it would not show that he was havingsufficient funds as on the date on which Exs.A-1 and A-2 wereexecuted. The learned counsel also relied on the judgment in MariappaGounder and ors. vs. Kandasamy – 2002 (4) LW 252 in support of hiscontention that signature could be compared only with the signaturecontained in contemporaneous documents. https://hcservices.ecourts.gov.in/hcservices/

14.The learned counsel for the respondent contended that thenotice sent by the respondent to the appellant calling upon him topay the amount as per the promissory notes was not replied to by theappellant. According to the learned counsel, the approach made by thelearned Trial Judge was perfectly correct as he has compared thedocuments in Exs.A-1 and A-2 with the admitted signature of theappellant as contained in his written statement. The learned counselrelied on Exs.A-6 and A-7 only to show that the respondent was in thereal estate business which would fetch necessary funds for him to dobusiness in money lending. The learned counsel by placing reliance onthe evidence of PW-2 contended that the said witness has clearlydeposed about the factum of execution of Exs.A-1 and A-2 by theappellant.Discussion :-15.The suit in O.S.No.1599/1993 was filed by the respondentagainst the appellant. The suit was based on two promissory notesdated 24.02.1990 and 28.02.1990 stated to have been executed by theappellant and marked as Exs.A-1 and A-2. In the written statementfiled by the appellant, he has categorically denied the execution ofExs.A-1 and A-2. The appellant also disputed the financial capacityof the respondent to advance such a huge amount and that too within agap of about four days. In order to prove that the documents were infact executed by the appellant only, respondent examined PW-2 –Rajamani, who according to him was brought only by the appellant atthe time of execution of Exs.A-1 and A-2. PW-2 has deposed that itwas none other than the appellant who took him to the residence ofthe respondent for the purpose of execution of promissory notes.Financial capacity to lent :-16.The learned Trial Judge on the basis of Exs.A-6 and A-7arrived at a categorical conclusion that the respondent was havingnecessary financial resources to advance money. 17.The respondent specifically disputed the claim made by theappellant that he was not having the capacity to advance such a hugeamount. In his evidence as PW-1, respondent has marked Exs.A-6 and A-7 to substantiate his contention that he was in the real estatebusiness. His evidence that he used to purchase property, prepare layouts, and assign the plots, remain un-challenged. His case regardingavailability of finance with him was consistent and trustworthy.There was nothing on record to show otherwise. Therefore, in thelight of the pleadings and evidence on the side of the respondent,especially in the light of documents in Exs.A-6 and A-7, it was clearthat the respondent has discharged the burden regarding his capacityto advance money. The finding to that effect, as arrived at by thelearned Trial Judge, is perfectly correct and it does not call for https://hcservices.ecourts.gov.in/hcservices/ interference. The first point is therefore decided against theappellant.Challenge to Exs.A-1 and A-2 :-18.Claim of the respondent was based on two promissory notesmarked as Exs.A-1 and A-2. The appellant in his written statementdenied the execution of the promissory notes. His denial was alsospecific. Even during his cross examination as DW-1, the appellanthas maintained that he has not signed either Exs.A-1 or A-2. In spiteof such express denial, the respondent has not taken any steps toexamine the document by an expert.19.The learned Trial Judge compared the signature in Exs.A-1 andA-2 with the signature as found in the written statement filed by theappellant and concluded that the signature in Exs.A-1 and A-2 werethat of the appellant only.The relevant law of comparison of signature :-20.Section 73 of the Indian Evidence Act empowers Court tocompare the disputed signature with reference to the admittedsignature of the party in case there was a dispute with respect tosuch signature. The provision also enables the Court to direct anyperson present in Court to write any words or figures for the purposeof enabling the Court to compare the words or figures so written withany words or figures alleged to have been written by such person.This provision enables the Court to compare the signature as well aswriting. Discretion to examine the disputed signature has to beexercised by the Court in accordance with legal principles. Court isnot an expert in the matter of comparison of signature or writing.This is only an enabling provision to be taken recourse to inexceptional circumstances. However, it cannot be said as a universalrule that the Court is not entitled to compare the signature orhandwriting and in all cases, it has to be sent to the experts. Ifsuch an interpretation is given, it would make Section 73 nugatory. 21.However, in cases wherein the very issue to be decided by theCourt relates to the signature and writing made by a particularparty, and a decision on the said question would decide the very suititself, it would be prudent to send the document for expert opinion.22.While considering an application filed by a party to send thedocument for expert opinion, Court has to consider the entire factualmatrix involved in the matter. The nature of contentions, stage ofthe suit and the bona fides of the party in taking up suchcontentions are all relevant factors. The denial of signature in thedocuments should be specific. In any case, if the Court was of theview that the comparison of the signature or the disputed signatureor writing by the expert would enable it to decide the lis more https://hcservices.ecourts.gov.in/hcservices/ effectively, Court is at liberty to send such documents for expertopinion.23.In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC110, Supreme Court indicated that the Court has the power to comparethe disputed signature with the admitted signature. But in case ofslightest doubt, the matter should be left to the wisdom of anexpert. The relevant paragraph would read thus:-"As a matter of extreme caution and judicialsobriety, the Court should not normally take uponitself the responsibility of comparing thedisputed signature with that of the admittedsignature or handwriting and in the event of theslightest doubt, leave the matter to the wisdomof experts. But this does not mean that the Courthas not the power to compare the disputedsignature with the admitted signature as thispower is clearly available under Section 73 ofthe Act."24.The written statement was filed five years after theexecution of Exs.A-1 and A-2. It is true that the appellant has notfurnished any document containing his contemporaneous signature forcomparison with the signature as found in the promissory notes.However, the fact remains that there was no application filed by therespondent for the purpose of comparing the signature.25.The suit is based on two promissory notes alleged to havebeen executed by the appellant. When there was an express denial ofexecution of the promissory notes by the appellant, the burden ofproof lies on the respondent to prove that the documents wereexecuted only by the appellant. However, the respondent has not takenany steps for comparison of the signature. The issue was left to bedecided by the learned Trial Judge. The learned Judge took up theburden of comparing the documents and observed that the signature ascontained in Exs.A-1 and A-2 was put by none other than the appellant.26.In Thiruvengadam Pillai v. Navaneethammal and another, 2008(4) SCC 530, the issue before the Supreme Court was regarding theobservation made by the First Appellate Court about the failure onthe part of the Defendants to prove that the signature was forged. Byconcurring with the views of the High Court in setting aside thefindings of the trial Court, by observing that it was for theplaintiff to prove the execution of document, the Supreme Court heldthus:-"19.The trial Court had analyzed the evidenceproperly and had dismissed the suit by giving cogentreasons. The first Appellate Court reversed it by https://hcservices.ecourts.gov.in/hcservices/ wrongly placing onus on the Defendants. Its observationthat when the execution of an unregistered document putforth by the plaintiff was denied by the Defendants, itwas for the Defendants to establish that the documentwas forged or concocted, is not sound proposition. Thefirst Appellate Court proceeded on the basis that it isfor the party who asserts something to prove thatthing; and as the Defendants alleged that the agreementwas forged, it was for them to prove it. But the firstappellate court lost sight of the fact that the partywho propounds the document will have to prove it. Inthis case the plaintiff came to court alleging that thefirst defendant had executed an agreement of sale inhis favour. The first defendant having denied it, theburden was on the plaintiff to prove that the firstDefendant had executed the agreement and not on thefirst defendant to prove the negative. The issues alsoplaced the burden on the plaintiff to prove thedocument to be true. No doubt, the plaintiff attemptedto discharge his burden by examining himself as alsoscribe and one of the attesting witnesses."27.In P.Sood & Co., (Manufacturing) represented by its Partner,Krishna Kumar Sood vs. Peerchand Misrimalji Bhansali, Prop., MeenaMetals, [2005 (3) CTC 12], Division Bench of this Court opined thatwhen the defendant denied the signature in a particular documentwhich is very much relied on by the plaintiff, it is for theplaintiff to take steps to ascertain the genuineness of the disputedsignature by sending the document to the hand writing expert.28.The respondent has also marked Exs.A-8 and A-9 on his sidewhich contains the signature of the appellant. However, the appellantdenied the said signatures also. Even though he has admitted that theletter head belongs to him, the contents of the letter as well as hissignature were denied. Therefore, the Trial Court was having only thewritten statement which admittedly contains the signature of theappellant. However, the written statement was filed long after theexecution of Exs.A-1 and A-2 and as such, it was not acontemporaneous document. It was only on a comparison of thesignature found on the suit pro notes that the Trial Court hasrecorded a factual finding that Exs.A-1 and A-2 were executed only bythe appellant. The said finding was seriously challenged by theappellant.29.Since the Trial Court had taken the task of comparison, therespondent was not serious about the issue and as such, no action wastaken by him to compare the signature as found in Exs.A-1 and A-2with reference to the admitted signature of the appellant. In view ofthe serious challenge now made by the appellant with respect to the https://hcservices.ecourts.gov.in/hcservices/ genuineness of Exs.A-1 and A-2, I am of the view that the respondentshould be given an opportunity to prove the genuineness of thesignature as found in Exs.A-1 and A-2.30.In State (Delhi Admn.) v. Pali Ram, AIR 1979 SC 14, theSupreme Court opined that it would be permissible for the TrialCourt to send the disputed document for expert opinion even withoutan application. The relevant paragraph would read thus :-"Even where no such expert witness is citedor examined by either party, the court may, if itthinks necessary for the ends of justice, on itsown motion, call an expert witness, allow him tocompare the sample writing with the allegedwriting and thus give his expert assistance toenable the court to compare the two writings andarrive at a proper conclusion."31.Therefore, I am of the view that the signature as found inExs.A-1 and A-2 had to be examined by an expert at the cost of therespondent.Disposition :-32.The finding with regard to the capacity of the respondent toadvance amount was on the basis of relevant materials andaccordingly, the said finding is confirmed.33.The finding given by the learned Trial Judge with respect tothe genuineness of Exs.A-1 and A-2 is set aside and the matter isremitted for fresh consideration. 34.In the result, the matter is remanded to the Trial Court forfresh consideration in respect of Issue No.2. The Trial Court isdirected to call upon the appellant to submit contemporaneousdocuments containing his admitted signature and to call an expert tocompare the signature as contained in Exs.A-1 and A-2 with referenceto such admitted signature and to answer Issue No.2 afresh.35.The appeal is allowed to the extent indicated above. Nocosts. Consequently, C.M.P.No.593/2009 is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrartar https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional Subordinate Judge, Coimbatore.2. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to Mr. K. Kalyanasundaram, Advocate. S.R.No.41602.+ 1 c.c. to Mr. B. Nedunchezhiyan, Advocate. S.R.No.41132. A.S.No.719/1998KA (CO)GSK 14.09.2009.