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2009 Supreme(Mad) 3307
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.K. Sasidharan, J.
P. Stanley Buck
Versus
D. Govindaraj
A.S. No. 719 of 1998
Decided on : 25th August, 2009.
B. Nedunchezhian for Appellant
K. Kalyanasundaram for Respondent
The burden of proof lies on the party asserting a fact, and the court has the power to compare disputed signatures with admitted signatures, but in case of doubt, the matter should be left to the wisdom of an expert.
Headnote:
Promissory Notes - Disputed Execution - Indian Evidence Act, Section 73 - The court analyzed the disputed promissory notes and the financial capacity of the respondent to advance the amount. The court compared the signature in the promissory notes with the admitted signature of the appellant and concluded that the signature in the promissory notes was that of the appellant. However, the appellant challenged this finding, and the court remitted the matter for fresh consideration, directing the appellant to submit contemporaneous documents containing his admitted signature and to call an expert to compare the signature in the promissory notes with reference to such admitted signature.
Fact of the Case:
The respondent filed a suit against the appellant based on two promissory notes alleged to have been executed by the appellant. The appellant denied the execution of the promissory notes and disputed the financial capacity of the respondent to advance such a huge amount.
Finding of the Court:
The court found that the respondent had the necessary financial resources to advance the money and concluded that the promissory notes were executed by the appellant. However, the court remitted the matter for fresh consideration due to the appellant's challenge to the finding on the execution of the promissory notes.
Issues: 1. Whether the respondent was having the financial capacity to advance the amount as shown in the promissory notes? 2. Whether the promissory notes were executed by the appellant? 3. Relief to which the parties are entitled to?
Ratio Decidendi: The burden of proof lies on the respondent to prove that the promissory notes were executed only by the appellant. The court has the power to compare disputed signatures with admitted signatures, but in case of the slightest doubt, the matter should be left to the wisdom of an expert. The court may, if necessary for the ends of justice, call an expert witness to compare the disputed document for expert opinion even without an application.
Final Decision: The matter is remanded to the Trial Court for fresh consideration in respect of the execution of the promissory notes. The appeal is allowed to the extent indicated above. No costs.
K.K. SASIDHARAN, J.
This first appeal is directed against the judgment and Decree in O.S. No. 1599 of 1993 on the file of the I Additional Subordinate Judge, Coimbatore whereby and whereunder, the suit filed by the respondent praying for a money decree on the basis of the promissory notes stated to have been executed by the respondent was decreed.
2. The suit in O.S. No. 1599 of 1993 was preferred by the respondent against the appellant on the basis of two promissory notes alleged to have been executed by the appellant on 24.2.1990 and 28.2.1990.
3. In the plaint in O.S. No. 1599 of 1993, it was the contention of the respondent that the appellant approached him for a loan and accordingly, a sum of Rs. 1,50,000/- was advanced on 24.2.1990 and a further sum of Rs. 50,000/- on 28.2.1990. The appellant has also executed two promissory notes agreeing to pay the amount with interest. However, the appellant failed to pay the amount, which made him to file the suit on the basis of those two promissory notes.
4. The suit was contested by the appellant by filing written statement. The appellant categorically denied the execution of the promissory notes as well as receipt of consideration. It was further contended that the respondent has no financial capacity to advance such a huge amount and as such, the alleged payment was made up only for the purpose of getting a decree. In short, the appellant denied the execution of promissory note, receipt of consideration, and also disputed the capacity of the respondent to advance money.
5. The learned Trial Judge framed the following issues for consideration:
(i) Whether the plaintiff is entitled to recover money from the defendant?
(ii) Whether the contention of the defendant that the suit promissory notes were not executed by him is true?
(iii) To what relief he is entitled to?
6. During the course of trial, P.W.1 and P.W.2 were examined on the side of the respondent and Exhibits A-1 to A-9 were marked. The appellant was examined as D.W.1 and Exhibits D-3 to D-3 were marked on his side.
7. The respondent as P.W.1, deposed that an amount of Rs. 2 lakhs was advanced to the appellant on two occasions and it was covered by the promissory notes marked as Exhibits A-1 and A-2. P.W.2 - Rajamani was a witness to the transaction and in fact, the said witness was brought by none other than the appellant at the time of execution of the promissory notes. The respondent has also marked Exhibits A-6 and A-7 in support of his contention that he was engaged in Real Estate business and as such, he has the means to advance money to the appellant. During the time of cross examination, the respondent, deposed that he was not educated properly and as such, he was not in a position to say about the figures as made mentioned in Exhibits A-1 and A-2. However, P.W.1 maintained that the amount was in fact paid by him to the appellant and it was witnessed by P.W.2.
8. P.W.2 Rajamani was examined to speak about the execution of Exhibits A-1 and A-2. According to P.W.2, he was working as Supervisor in L.N. Hospital and both the appellant and the respondent were known to him for about 9 to 10 years. It was only the appellant who requested him to accompany to the residence of the respondent and the promissory notes were signed in his immediate presence. He also signed as a witness in Exhibit A-1 and A-2.
9. The appellant was examined as D.W.1 and even during his evidence, he denied the execution of Exhibits A-1 and A-2. According to the appellant, he knew Dr. Ramachandran of L.N. Hospital since 1977. D.W.1 was doing poultry business earlier. During his cross examination, he admitted that there was necessity for him to take loan for his business. But he was not sure as to the amount of loan taken by him, how much was repaid and other details about the creditors. There were two other suits pending against him besides the one another suit filed by the respondent.
10. The learned Trial Judge answered the issues one after another on
