S.A.(MD)No.862 of 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 16.06.2021

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.862 of 2014

Mohanadhas

... Appellant/Appellant/Plaintiff

Vs.

Ponnaiyan

... Respondent/Respondent/Defendant

Prayer : Second Appeal filed under Section 100 of Civil Procedure

Code, against the decree and judgment passed in A.S.No.39 of 2005

dated 11.06.2014, on the file of the Sub-Ordinate Court,

Padmanabhapuram and confirming he decree and judgment passed in

O.S.No.66 of 2004 dated 21.12.2004 on the file of the Additional

District Munsif, Padmanabhapuram and allow the second appeal.

For Appellant

: Mr.K.Sreekumaran Nair

For Respondent : Mr.V.M.Balamohan Thampi

JUDGEMENT

The plaintiff in O.S.No.66 of 2004 on the file of the District

Munsif Court, Padmanabhapuram is the appellant in this second

appeal. The plaintiff filed the said suit for recovering a sum of

Rs.80,000/- from the defendant. The suit was laid on the strength

of Ex.A1/promissory note dated 23.03.2001. The case of the

plaintiff is that the defendant borrowed the said sum of Rs.80,000/-

from the plaintiff on 23.03.2001 and executed Ex.A1/promissory note.

The defendant had agreed to repay the same with interest at the rate

of 24% per annum on demand. Since the defendant evaded repayment,

the plaintiff had to file the said suit. The defendant filed his

written statement denying the plaint averments. The defendant

categorically denied the execution of the suit promissory note.

2.The trial court framed the necessary issues and the plaintiff

examined himself as P.W.1. Since the signature in the promissory

note was disputed, the matter was referred for expert opinion and

the expert was examined as P.W.2. Exs.A1 to A8 were marked on the

side of the plaintiff. The defendant examined himself as D.W.1 and

marked Ex.B1 dated 29.09.1978, which is a sale deed executed in

favour of the defendant.

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S.A.(MD)No.862 of 2014

3.The learned Trial Munsif by judgment and decree dated

21.12.2004 dismissed the suit. Questioning the same, the plaintiff

filed A.S.No.39 of 2005 before the Sub Court, Padmanabhapuram. By

judgment and decree dated 11.06.2014, the appeal was also

dismissed. Challenging the same, this second appeal came to be

filed.

4.The second appeal was admitted on the following substantial

questions of law:-

“a) After having found that the signature in Ex.A1

promissory note was that of the defendant on the basis of

evidence of P.W.1, P.W.2, report of expert and C.W.1,

whether the courts below are right in rejecting the case

of plaintiff on irrelevant grounds?

b) When execution of Ex.A1 was proved by plaintiff,

the non payment of consideration had to be proved by the

defendant. In such circumstances, whether the courts

below are right in placing the burden to prove

consideration on the plaintiff?”

5.The learned counsel appearing for the appellant submitted

that since the defendant disputed his signature found in Ex.A1, the

matter was referred for expert opinion. The handwriting expert was

called upon to make a comparison of the signatures found in Exs.A1,

A5 and B1. Since Ex.B1 was executed in the year 1978, it cannot be

said to be a contemporaneous document and the expert confined his

comparison to Exs.A1 and A5 alone. The opinion of the handwriting

expert is that the disputed signature is that of the defendant. The

trial court as well as the first appellate court had given a

categorical finding that the defendant had executed Ex.A1. The

learned counsel would point out that the first appellate court is

the final court of fact and that therefore, the said finding cannot

be re-appreciated. Once it is concluded that Ex.A1 was executed by

the defendant, presumption under Section 118 of the Negotiable

Instruments Act will get trigger