The admission of signature on a document by a party shifts the burden of proof to that party to explain the circumstances under which the document was executed.

This appeal was directed against the judgment and decree of the Principal Sub Court, Thrissur, in O.S.No.341/1997. The suit was instituted originally for specific performance of a contract for exchange of properties by and between the plaintiff and defendants. Later, the suit was amended, limiting the relief to one for return of advance amount. The amended prayer was allowed as per the impugned decree. The aggrieved defendant is the appellant.

2.Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the records.

3.Learned counsel for the appellant would submit that, although the signature in Ext.A1 document/agreement stands admitted, the agreement was not intended to be acted upon. As a matter of fact, the amount of Rs. 2,00,000/- made mention of in Ext.A1, was neither paid by the plaintiff, nor received by the defendant. According to the appellant/defendant, after preparation of Ext.A1 agreement, the plaintiff and the defendant had proceeded in a scooter to the scheduled properties. On their way, they got into a tea shop and the defendant subscribed his hands to Ext.A1. However, no money was paid to the defendant/appellant by the plaintiff, either towards advance or otherwise. Upon reaching the property, the defendant/appellant understood that, the property of the plaintiff is not having proper road access and accordingly, he withdrew from Ext.A1 agreement. Learned counsel would submit that, there is no witness to Ext.A1 document and that evidence tendered by DW2, the document writer, would not support the plaintiff's case of payment of advance consideration. DW2, a person who had allegedly witnessed the transaction, cannot be believed and no decree can be rested on his evidence. Importantly, he is not a witness to Ext.A1 document. Mere admission of signature cannot be taken as admission of execution of Ext.A1 agreement and the same is no reason for decreeing suit. At any rate, the interest at the rate of 12 percent per annum, in the absence of an enabling clause in Ext.A1, is grossly on the higher side, is the final submission made.

4.Refuting the above arguments, the learned counsel for the respondent/plaintiff would submit that, the evidence tendered by PW1 and PW2, supported by the recitals in Ext.A1 would leave no room for any doubt on the question as to whether a sum of Rs.2,00,000/- was paid by the plaintiff to the defendant, acting upon Ext.A1 document. According to the learned counsel, the judgment impugned has considered all aspects in the right perspective and same warrants no interference by this Court. The submission made by the learned counsel for the appellant as regards the rate of interest was seriously opposed by the learned counsel for the respondents/plaintiff. Learned counsel would first submit that, the rate of interest prevailing as on the date of Ext.A1, is 12 percent, and not 9 percent, as canvassed by the counsel for the appellant. Secondly, the money of the plaintiff was blocked in the hands of the defendant, who clandestinely refused to pay back the amount successfully for a long number of years. Learned counsel would also rely on the phenomenal increase in the value of land during 1997, to canvass for the position that, the above amount could have been profitably invested elsewhere, but for the default on the part of the defendant to pay back the same.

5.Having heard the learned counsel appearing for the respective parties, the following points arise for consideration:

(1) whether reliance placed by the trial court in Ext.A1 agreement to find that the plaintiff advanced a sum of Rs.2 lakhs to the defendant is legal and proper?

(2) Whether the judgment impugned warrants any interference by this Court?

6.Point No.1 As regards this point, this Court notice that, it is the duty of the defendant - who contends that Ext.A1 agreement was not intended to be acted upon, simultaneous with admitting the signature therein – to prove, under what circumstances such a d