The burden of proof shifts to the defendant when the court finds that the disputed signatures match the admitted signature. Failure to examine a key witness may not be fatal to the plaintiff's case.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C against the judgment and decree dated 24.09.2013 in A.S.No.3 of 2013 on the file of the III Additional District and Sessions Court, Cuddalore, Vridhachalam confirming the judgment and decree dated 24.08.2011 in O.S.No.54 of 2010 before the Additional Sub Court, Vridhachalam.)

1. The unsuccessful defendant before the Courts below in a suit filed for recovery of money under a promissory note is the appellant before this Court.

2. The facts necessary for disposing of the second appeal are herein below narrated and the parties are referred to in the same litigative status as before the Courts below:

Plaintiff's case:

The plaintiff had filed the suit O.S.No.54 of 2010 on the file of the Additional Subordinate Court, Virudhachalam for recovery of a sum of Rs.1,37,106/- with costs and subsequent interest. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.54,000/- from one Latha, W/o. Kuzhanthaivel on 07.04.2007 and had executed a promissory note agreeing to repay the amount with interest @ 12% per annum and once again another sum of a like amount was honoured on 11.04.2007 for which another promissory note was executed. The said Latha on 02.03.2010 had made over the two promissory notes in favour of the plaintiff after receiving the entire principal and interest. The plaintiff would submit that despite repeated demands, the defendant had not come forward to repay the said amount, constraining the plaintiff to issue a legal notice dated 08.03.2010. The said legal notice was received by the defendant on 10.03.2010, for which, a reply notice was issued by him containing false allegations. Therefore, left with no other alternative, the plaintiff has come forward with the above suit.

Written statement of the defendant:

The defendant denied the allegations contained in the plaint and had in clear and categoric terms stated that he had not executed the promissory note in favour of the said Latha nor had he received any amount stated therein. It is stated that on 15.04.2004, the defendant's son Sankar had executed a Mortgage Deed in favour of Latha's husband, Kuzhanthaivel, in which, the defendant had signed as a witness. Since the son of the defendant had not discharged the said loan, the said Kuzhanthaivel had asked the defendant to discharge the loan. However, the defendant had refused to comply with the demand stating that it was his son who had borrowed the money, therefore, he would not discharge the loan. Angered by the response, it appears that the said Kuzhanthaivel has forged the two promissory notes in the name of his wife latha. The defendant had not borrowed any amount from the said Latha nor had he executed the promissory note. Trial Court:

3. The learned Additional Subordinate Judge, Vridhachalam had framed the following issues:

“TAMIL”

4. The plaintiff had examined himself as P.W1 and one Renganathan, the witness in the promissory note as P.W2 and Exs.A1 to A7 were marked on the side of the plaintiff. The defendant had examined himself as D.W1 and marked Exs.B1 to B3. The Trial Court, after considering the evidence, decreed the suit as prayed for.

Lower Appellate Court:

5. Challenging the same, the defendant had filed an appeal in A.S.No.3 of 2013 on the file of the III Additional District and Sessions Judge, Cuddalore at Vridhachalam. The lower Appellate Court had framed the following points for consideration.

“1. Whether the defendant executed the said promissory note in favour of the said Latha and in turn the said Latha made over to the plaintiff as alleged?

2. Whether the suit pro-notes are forged one?

3. Whether the appellant is entitled to the relief as prayed for?

4. To what other relief the appellant is entitled to?”

The Lower Appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal. Challenging the same, the defendant is before this Court.

Substantial Questions of law:

6. This second appeal