J U D G M E N T

Challenge in this second appeal is made to the judgment and decree dated 20.10.2005 passed in A.S.No.33 of 2005 on the file of the Principal District Court, Erode, reversing the judgment and decree dated 28.09.2004 passed in O.S.No.166 of 2002 on the file of the Subordinate Court, Bhavani.

2. The parties are referred to as per the rankings in the trial court.

3. The plaintiff in O.S.No.166 of 2002 is the appellant in this second appeal.

4. Suit for recovery of money.

5. The case of the plaintiff in brief is that the defendant borrowed a sum of Rs.1,00,000/- and Rs.50,000/- from the plaintiff on 07.02.2000 and 10.07.2000 under Exs.A1 and A2, the suit A and B promissory notes, agreeing to repay the borrowed sum with interest at 12% per annum and in evidence to the abovesaid borrowals, executed Exs.A1 and A2 suit promissory notes and despite the promise, the defendant had failed to discharge the debts and hence according to the plaintiff, she has been necessitated to lay the suit against the defendant for recovery of money, under the suit promissory notes.

6. The defendant resisted the plaintiff's suit contending that she has not borrowed the amounts from the plaintiff under the suit promissory notes as alleged in the plaint and not executed the suit promissory notes in evidence of the alleged borrowals as putforth in the plaint. According to the defendant, the suit promissory notes are forged documents created by the plaintiff and the defendant has not borrowed any money from the plaintiff at any point of time. The defendant is well placed in life and owns several properties and the plaintiff has no means to lend/give the huge sum of money as putforth in the plaint to the defendant and due to enmity, the false case has been laid by the plaintiff and the plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed.

7. In support of the plaintiff's case, P.Ws.1 and 2 were examined.

Exs.A1 to A4 were marked. On the side of the defendant, D.W.1 was examined. No document has been marked.

8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions putforth by the respective parties, the trial court was pleased to decree the suit in favour of the plaintiff as prayed for. Impugning the same, first appeal has been preferred by the defendant. The first appellate court on an appreciation of the materials available on record and the submissions projected by the respective parties, was pleased to setaside the judgment and decree of the trial court and by way of allowing the appeal preferred by the defendant, dismissed the plaintiff's suit. Challenging the same, the present second appeal has been laid.

9.At the time of admission of the second appeal the following substantial questions of law were formulated for consideration.

(a) Whether the Lower Appellate Court was in error by comparing the admitted signatures of the defendant with the disputed signatures, particularly when the signatures were of two different periods?

(b) Whether it is necessary to examine an attestor for proving a promissory note?

10. The suit has been laid by the plaintiff for recovery of money against the defendant based on the suit promissory notes marked as Exs.A1 and A2. According to the plaintiff, the defendant borrowed a sum of Rs.1,00,000/- and Rs.50,000/- under the suit promissory notes and agreed to repay the borrowed sum with interest as recited in the promissory notes, but failed to honour her promise and hence the suit.

11. The defendant resisted the plaintiff's suit contending that she had not borrowed any money from the plaintiff under the alleged suit promissory notes and putforth the case that the suit promissory notes are fabricated documents created by the plaintiff and the defendant is well placed and owns several properties and not necessitated to borrow any money from the plaintiff and the plaintiff has no wherewithal to lend the suit amount and according to her, the