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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.B. PRABHAKARA SASTRY, J.
Ravindra - Petitioners
Versus
T. Parameshwara Hegde - Respondent
Regular Second Appeal No.2381 of 2011
Decided On : 13-03-2018
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Sections 67, 68 - Proof of signature and handwriting - Promissory note - Plaintiff relying on single document stated to be on-demand promissory note, to prove alleged loan transaction - Specific denial of defendant regarding execution of promissory note - Though plaintiff got promissory note marked, none of signatures thereon marked as exhibit - To prove execution of any document, mere marking of document not sufficient and admission of document in proper manner, also required - Plaintiff deposing that defendant only writing promissory note, but nowhere stated to have signed or executed it - Mere writing of document cannot be taken as execution of same - Burden of proof lying on plaintiff, asserting promissory note to be handwritten by defendant, to prove same, especially on specific denial by defendant - None of attesting witnesses examined - Execution of promissory note by defendant, held, not proved.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 73 - Comparison of signatures - Promissory note - Plaintiff relying on single document stated to be on-demand promissory note, to prove alleged loan transaction - Specific denial of defendant to alleged execution of promissory note - Trial Court on its own comparing signature on promissory note and RPAD card with one found on vakalathnama, concluding that defendant executed promissory note - Held, When disputed promissory note bearing more than one signatures, without identifying as to which particular signature belonged to alleged executant, and when no single signature marked as disputed signature admitted signature cannot be compared with it as done by Trial Court - Trial Court erred in comparing signatures and concluding that defendant executed promissory note.
No, the alleged promissory note (Ex.P-1) was not an agreement executed to repay a previous debt. It was claimed to evidence a fresh hand-loan of Rs.25,000/- borrowed by the defendant from the plaintiff specifically on 6.11.2004 for domestic requirements, with a promise to repay that amount on demand along with interest at 1.5% per month. [3000418760001][3000418760015]
The plaintiff failed to prove execution of the promissory note despite the defendant's specific denial of the loan transaction and execution. [3000418760002][3000418760019] The plaintiff did not mark any signatures on the document as exhibits, did not depose that the defendant signed or executed it (merely claiming it was written by the defendant), and examined none of the attesting witnesses. [3000418760020][3000418760021][3000418760022] Mere marking of the document was insufficient proof under applicable principles. [3000418760017][3000418760018][3000418760021]
Trial court signature comparisons were erroneous, as no specific signature was identified or marked as the defendant's for comparison with any admitted signature. [3000418760023][3000418760024] No legally enforceable debt or agreement was established. [3000418760024]
1. The appellant herein was the plaintiff before the Principal Civil Judge (Jr.Dn.) & J.M.F.C., Sagar, (henceforth for brevity referred to as the `Trial Court’ for short), who had instituted a suit in O.S.No.34/2007 against the present respondent for recovery of money.
2. The summary of the case of the plaintiff in the Trial Court is that the defendant had borrowed a sum of Rs.25,000/- from him on 6.11.2004 and had executed a On-demand Promissory Note agreeing to repay the said loan amount along with interest thereupon @ 18% per annum. Despite the demand, the defendant did not repay the loan amount, which made him to issue a legal notice to him on 12.9.2005. The defendant neither responded to the legal notice nor repaid the loan amount. Hence, the plaintiff was constrained to file suit for recovery of a sum of Rs.25,000/- with accrued interest thereon.
3. The defendant contested the matter by filing his written statement wherein he denied the entire plaint averment with respect to the alleged loan transaction except admitting that the plaintiff was a person known to him. The defendant has categorically and specifically denied the alleged loan transaction much less the one dated 6.11.2004 for a sum of Rs.25,000/-.
4. Based on the pleadings of the parties, the Trial Court framed the following issues:
(1) Whether the plaintiff proves that on 6-11-04 the defendant borrowed a sum of Rs.25,000/- and agreeing to repay the same at the rate of interest 18% per annum and the defendant executed on Demand Pronote on the same day in favour of the plaintiff?
(2) Whether the plaintiff has entitled to relief as sought for?
(3) What order or decree?
5. The plaintiff got himself examined as PW1 and got marked three documents at Exs.P-1 to P3. Defendant neither chose to lead evidence from his side nor produced any document as exhibits. After hearing both side and analyzing the material placed before it, the Trial Court by answering issue Nos.1 and 2 in the affirmative proceeded to decree the suit of the plaintiff by its judgment and decree dated 3.10.2008.
6. Being aggrieved by the judgment and decree of the Trial Court, the defendant preferred an appeal before the Senior Civil Judge and J.M.F.C., Sagar, (henceforth for brevity referred to as ‘First Appellate Court’), in R.A.No.01/2009 and the said Court framed the following points for its consideration:
(1) Whether the appellant/defendant establishes that the trail Court had erred in come to the conclusion that he had executed On Demand Promissory Note and put the signature and received the consideration amount and also agreed to pay the interest as alleged by the respondent?
(2) Whether the appellant further establishes that the Judgment rendered by the learned trial Judge is not at all in accordance with the law and against to the evidence?
(3) Whether the appellant further establishes that the Judgment and Decree rendered by the learned trial Judge is perverse arbitrary not sustainable under law and calls for interference?
(4) What Order?
7. After hearing both sides and perusing the material placed before it, the First Appellate Court answered issue Nos.1 to 3 in affirmative and by its judgment and decree dated 28.7.2011, allowed the appeal and dismissed the suit of the plaintiff.
8. It is against the said judgment and decree of the First Appellate Court, the plaintiff before the Trial Court has preferred this appeal.
9. For the sake of convenience, the parties would be referred to henceforth with the ranks they are holding respectively in the courts below.
10. In response to the notice, the respondent is being represented by his Counsel.
11. The lower court records were called for and the same are placed before the Court.
12. While admitting this appeal, this Court framed the following substantial question of law:
“Whether the Lower Appellate Court had erred in law in holding that Ex.P-1 – On demand Pronote was not proved in accordance with law?”
13. Heard the arguments from both sides.
14. Learned co
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