JUDGMENT

The present second appeal arises out of the Judgment and Decree dated 03.07.2012 passed in A.S.No.70 of 2010 on the file of the learned Principal District Judge, Tiruvallur in confirming the judgment and decree of the court of Subordinate Judge, Ponneri in O.S.No.59 of 2006 dated

04.03.2009.

2. For the sake of clarity and convenience, the parties will be referred to as their ranks in the suit.

3. O.S.No.59 of 2006 is a suit for recovery of money on the foot of promissory note. It is the case of the plaintiff that on 10.05.2005, the defendants borrowed a sum of Rs.1,00,000/- agreeing to repay the amount together with interest at the rate of 24% per annum. The purpose of the loan was to settle the family debts, education of their daughter and for other expenses. Despite oral demand, since the defendants did not repay the amount, the plaintiff presented the suit.

4. The defendants filed separate written statements. According to the first defendant, he had not borrowed any amount from the plaintiff and the signature found in the document is not his signature. Similar defence was taken by the second defendant. On the basis of these pleadings, the following issues were framed:

“1/ tHf;F K:yk; cs;sjh> 2/ jhth epiyf;fj;jf;fjh>

3/ jhthtpy; nfhhpathW thjpf;F bjhif fpilf;ff;Toajh>

4/ thjpf;F fpilf;ff;Toa ,ju ghpfhu';fs ; vdd; >”

5. On the side of the plaintiff/Prabavathy, she examined herself as PW1 and the attesting witness/Mr.Sampath as PW2 and Pro Note/Ex.A1 was marked. The first defendant examined himself as DW1 and examined one Purushothaman as DW2. The second defendant examined herself as DW3.

On the side of the defendants, Ex.B1 to Ex.B7 were marked.

6. On the basis of the pleadings and evidence, the trial judge decreed the suit as prayed for on 04.03.2009. Aggrieved by the same, the first defendant alone filed an appeal before the learned Principal District Judge at Thiruvallur in A.S.No.70 of 2010.

7. After hearing both sides, the learned first appellate judge dismissed the appeal confirming the decree of the trial court. Against the said judgment and decree, the present second appeal was presented before this Court.

8. On 05.04.2013, this Court had ordered notice regarding admission and finally, it was admitted on the following substantial questions of law on 12.04.2022:

“(a) Whether both the Courts below were right in exercising power under Section 73 of the Indian Evidence Act, 1872 by comparing the disputed signature of the 1st defendant with the signature found in the vakalat and the written statement, without calling for a contemporaneous document with the admitted signature of the 1st defendant and sending it for an expert opinion?

(b) Whether both the Courts below went wrong in fixing the liability against the 2nd defendant without properly appreciating the preponderance of probabilities based on the oral evidence and the documents relied upon by the 2nd defendant?

(c) Whether the findings of both the Courts below suffers from perversity due to improper appreciation of the oral and documentary evidence?”

9. I heard Mr.Vigneshwar, learned counsel for Mr.V.Nicholas learned counsel for the appellant and Mr.E.Prabhu learned counsel for the respondent.

10. Mr.Vigneshwar would commence his argument by submitting that the document under Ex.A1 is not a pro-note but one of a “bond”. He would submit that since the document has been attested by witnesses, the character of the document under Ex.A1 described as a pro-note would become a bond and therefore, it ought to have been valued in accordance with the Stamp Act, since bond has higher value than that of a pro-note and that not having been done, it is fatal to the case of the plaintiff. His second submission is that the signature of the first defendant under Ex.A1 differs and the court committed an error in comparing the document/Ex.A1 with the vakalat, written statement and proof affidavit. Therefore, this error entitles him to have the appeal accepted by this court and the suit has