Court is competent to compare signatures with admitted signature and come to an independent conclusion

(Appeals against the judgment and decree dated 28.03.1988 made in O.S.No.8937 of 1986 on the file of the Learned XV Assistant Judge, City Civil Court, Madras.)

K. Mohan Ram, J.

The defendant in O.S.No.8937 of 1986 on the file of the XV-th Assistant Judge City Civil Court, Madras is the appellant in A.S.No.569 of 1989. The plaintiff in O.S.No.8937 of 1986 on the file of the same Court is the appellant in A.S.No.834 of 1989.

2. For the sake of convenience, the parties are referred to as per their ranking in the suit.

3. The plaintiff filed a suit for decree against the defendant for a sum of Rs.39,030.90 with interest at 17.5% per annum from the date of suit till date of realisation on the basis of the following averments in the plaint:

The plaintiff is a Nationalised Bank. The defendant is the proprietor of M/s. Antony Hardware, at No.113 Eldams Road, Teynampet, Chennai – 600 018. At the request of one Thiru S.Kandaswamy, proprietor of M/s.Ramesh Textiles, Eldams Road, Teynampet, Chennai – 600 018, the plaintiff granted cash credit facility to him to an extent of Rs.30,000/- on 23.08.1985. The defendant stood as a guarantor for repayment of the dues of S.Kandaswamy. The said S.Kandaswamy was declared as an insolvent by the High Court Madras in I.P.No.23 of 1986. The defendant had executed a guarantee on 23.08.1985.

4. The defendant filed a written statement containing the following defence:

The suit as framed is not maintainable in law. The grant of cash credit facility to M/s. Ramesh Textiles is not known to the defendant and the defendant has not stood as a guarantor for repayment of the dues of said S.Kandaswamy. The defendant had never been in acquaintance with S.Kandaswamy, Proprietor, Ramesh Textiles, Eldams Road, Chennai – 18. The defendant is unaware of the I.P. proceedings against the said S.Kandaswamy. The defendant does not owe to the plaintiff any sum much less a sum of Rs.39,030.90. The defendant has not stood or executed any guarantee on 23.08.1985. The defendant perused the second document in Court and emphatically states that the signature found in the letter of guarantee is not his signature. There had been no notice whatsoever from the plaintiff to the defendant. Since as per the plaint averment, the cash credit facility is on hypothecation of goods, the first charge is over the hypothecated goods in favour of the Bank. Therefore, in the case of insolvency proceedings, the Bank would be entitled to recover the entire sum from the goods. On the above said pleadings, the defendant prayed for the dismissal of the suit.

5. On the above said pleadings, the Trial Court framed the following issues, viz.,

i) Whether the plaintiff is entitled for the suit claim?

ii) Whether the suit as framed is maintainable?

iii) To what relief the parties are entitled to?

During Trial, the plaintiff examined one Gururajan as P.W.1 and got marked Exs.A-1 to A-5. On the side of the defendant, the defendant got himself examined as D.W.1, but did not mark any documents. On a consideration of the oral and documentary evidence adduced in the case, the Trial Court passed a conditional decree in favour of the plaintiff in the following terms:-

i) The defendant is liable to pay a sum of Rs.39,030.90 with 17.5% interest per annum there on, from 01.12.1986 till the date of payment of the decree amount.

ii) The defendant should pay a sum of Rs.4,838.25 towards cost to the plaintiff.

iii) The sum of Rs.5,797/- paid by the defendant after the filing of the suit should be credited.

iv) However, the decree can be executed against the defendant only after proceeding against the principal debtor S.Kandaswamy, his hypothecated goods and his other properties and that too if the decree amount could not be realized.

6. The defendant aggrieved by the above said decree, has filed the appeal in A.S.No.569 of 1989. The plaintiff being aggrieved by Clause–IV of the decree has filed the appeal in A.S.No.834 of 1989, since both the above said appeals arise out of t