Point of law: Recovery of amount - Suit promissory note had been fabricated and the litigation launched on that basis - Probable reason as to why the case itself has been foisted

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Principal District Court, Thoothukudi, dated 21.07.2011made in A.S.No.3 of 2010, reversing judgment and decree, dated 12.10.2009 made in O.S.No.9 of 2007, on the file of the Sub Court, Koilpatti.)

1. The plaintiff in O.S.No.9 of 2007 on the file of the Sub Court, Kovilpatti, is the appellant in this second appeal. The case of the plaintiff is that the defendant is his relative and that he approached him for advancing a loan of Rs.90,000/- on 08.01.2006. The plaintiff gave the said sum to the defendant after taking Ex.A.1/promissory note from him. The defendant had agreed to repay the said amount with interest on demand. The plaintiff alleged that the defendant did not repay the said amount, when he demanded. The plaintiff issued Ex.A.2/legal notice dated 22.01.2007. The said notice was returned as unserved. The plaintiff filed O.S.No.9 of 2007, for recovery of a sum of Rs.1,01,700/- with interest at the rate of 12% per annum from the date of plaint till the date of realization. The defendant entered appearance and denied having executed the suit promissory note. The learned Trial Judge framed the necessary issues. The plaintiff examined himself as P.W.1 and the two attesting witnesses were examined as P.W.2 and P.W.3. Ex.A.1 to A.3 were marked on the side of the plaintiff. The defendant examined himself as D.W.1 and the scribe of the promissory note was examined as D.W.2.

2. After considering the evidence on record, the learned Trial Judge by judgment and decree dated 12.10.2009 decreed the suit as prayed for. Questioning the same, the respondent herein filed A.S.No.3 of 2010 before the Principal District Court, Thoothukudi. By judgment and decree dated 21.07.2011, the judgment and decree passed by the Trial Court was set aside and the first appeal was allowed. Challenging the same, this second appeal came to be filed.

3. The second appeal was admitted on the following substantial question of law:-

“Whether the Lower Appellate Court is correct in law in reversing the findings of the Lower Court, though the appellant has clearly proved the execution of Ex.A.1 by examining the attestors viz., P.Ws.2 and 3?”

4. Heard the learned counsel on either side.

5. The learned counsel for the appellant would submit that the First Appellate Court erred in reversing the well considered decision of the Trial Court. The suit was laid on the strength of the suit promissory note. After the defendant filed written statement denying his signature in Ex.A.1, the plaintiff took steps for referring the suit promissory note for obtaining the opinion of the handwriting expert. The interlocutory application filed by the appellant herein was allowed but then the handwriting expert was not in a position to give any opinion for want of admitted signature for comparison and returned the suit promissory note. The Trial Court called upon the defendant to give his sample signatures. The learned Trial Judge undertook the task of comparison on his own and eventually came to the conclusion that the suit promissory note was very much executed by the defendant. Once the Trial Court came to the said conclusion as regards execution, presumption under Section 118 of the Negotiable Instruments Act got triggered. Inasmuch as there was no rebuttal evidence, the Trial Court rightly decreed the suit. The learned counsel found fault with the First Appellate Court for questioning the power and authority of the Trial Court in undertaking the task of comparison. The learned counsel submitted that Section 73 of the Indian Evidence Act clearly empowered the Court to undertake such a comparison. He also would point out that the plaintiff had demonstrated his bonefides by taking out an application for referring the suit promissory note for the opinion of the handwriting expert. The learned counsel also placed reliance on the following reported decisions:-

(i) (2003) 3