Madras High CourtT.N. Boopathy vs T.A. Sattu on 7 November, 2001Equivalent citations: AIR2002MAD177, AIR 2002 MADRAS 177, (2002) 3 BANKCLR 532 (2002) 2 BANKJ 110, (2002) 2 BANKJ 110Author:M. ChockalingamBench:M. ChockalingamJUDGMENT
 

 M. Chockalingam, J.1. This second appeal has arisen from the judgment and decree of the learned Principal Subordinate Judge, Vellore made in A. Section No. 70/87 dated 23-12-1988 reversing the judgment and decree of the learned District Munstf, Ranipet passed in O.S. No. 484 of 1985 dated 10-7-1987.2. The respondent herein filed a suit against the appellant seeking a decree for a sum of Rs. 8,080/- with further interest with the following averments. On 15-11-1982 the appellant/defendant executed a promissory note in favour of Kamalammal, the mother of the respondent/plaintiff for a sum of Rs. 6,000/- and received the said sum that day agreeing to repay the same on demand with interest at 30% per annum. The defendant did not pay the said amount despite repeated demands. Notice dated 2-8-85 was Issued and the same was acknowledged on 6-8-85, but there was no reply. The said Kamalammal died leaving her only son, the respondent/plaintiff as her only heir to succeed to her and hence the defendant/appellant was bound to pay to the plaintiff the amount due under the said promissory note. The respondent/plaintiff obtained a succession certificate from the Sub Court, Vellore. The defendant/appellant was a businessman and apart from that he has got immovable properties worth about Rs. 1.00 lakh in the village and had an annual income of Rs. 30,000/- and hence he was not entitled to the benefits of any of the Debt Reliefs Acts by Act 4/38. 13/80 or any other Act. Though the plaintiff was entitled to Interest at the rate of 30% per annum, he had claimed interest only at 12% per annum. Towards the principal and Interest, the appellant/defendant was liable to pay Rs. 8,080/- and hence the suit.3. The appellant/defendant contested the suit alleging that he never borrowed any amount from any one by name Kamalammal and never executed any promissory note and as such the alleged promissory note dated 15-11-1982 was a forged one and the said Kamalammal was not known to the defendant at all. One T. B. Subramania Mudaliar of Ramapalayam village had forged the alleged suit promissory note in the name of the said Kamalammal and had filed the false and vexatious suit in the name of the plaintiff wantonly with ulterior motive due to the enmity between him and the appellant/defendant and the father of the defendant and that the respondent/plaintiff was only a tool in his hands to file the suit after forging the alleged promissory note; that the defendant had issued a proper reply notice with true contents to the notice issued by the plaintiff through his lawyer; that it was false to state that the defendant replied the notice of the plaintiff; that the defendant was not bound to pay any debt to the plaintiff on any account much less the suit debt which was based on a promissory note; that it is not correct to state that the defendant was not entitled to the benefits under the provisions ofDebt Relief Act; that there was no cause of action for the suit and hence the suit was to be dismissed.4. The trial Court on the above pleadings framed the necessary issues, tried the suit and dismissed the same with costs. Aggrieved over the same, the plaintiff preferred an appeal before the sub Court wherein the judgment of the trial Court was reversed. The aggrieved defendant has brought forth this second appeal. At the time of admission, the following substantial questions of law were formulated by this Court for consideration.1) Whether the Court below is right in reversing the judgment of the trial court in throwing the burden of proof on the appellant, when the respondent himself has not established that the signature in the suit document is that of the appellant?2) Whether the judgment of the lower appellate Court is not vitiated by misleading the evidence in substantial matters viz., regarding the place of execution of the document, payment of consideration?5. The respondent herein filed a suit for recovery of money of Rs. 8,080/- with subsequent interest alleging that the appellant/ defendant executed the suit promissory note in favour of his mother Kamalammal and on her death the plaintiff was the only heir to succeed to her estate; that he obtained a succession certificate and after issuing the notice of demand, which was duly acknowledged by the appellant, he has filed the suit. The only defence that was put forth by the appellant herein in the suit was that the suit promissory note was a forged one: that he neither borrowed anything from Kamalammal nor executed the suit promissory note in her favour. Agreeing with the defence, the trial Court dismissed the suit, while on appeal the lower appellate Court reversed the Judgment of the trial Court and has decreed the suit which has culminated in this second appeal.6. The learned counsel for the appellant would submit that the promissory note in question was not executed by the appellant and it was a concocted one at the Instigation of Subramania Mudallar who was in-imically disposed towards the appellant and the suit was filed at the instigation of the said Subramania Mudaliar; that the appellant had thoroughly denied the execution of the suit promissory note and hence the burden of proving that the promissory note was executed by the appellant and the consideration was paid to the appellant was on the respondent and the respondent has failed to discharge the said burden; that the respondent herein did not take any steps to prove that the promissory note was executed by the appellant and the signature in the promissory note was that of the appellant by examining the handwriting expert; that there was material dissimilarity in the signature contained in Ex. Al promissory note and the other admitted signatures of the appellant; that there was material discrepancy in the evidence of PWs 1 and 2 regarding the place of execution, payment of cash and also regarding the persons who were present at the time of the alleged payment of cash; that the evidence of PW1 that his mother was present at the time when the promissory note was executed and that she paid cash to the appellant was false from the evidence of PW 2 who deposed that he did not know Kamalammal and at the time of execution no witnesses were present; that it is pertinent to note that PW1 has deposed that he did not know the name of the advocate who had sent the notice and also he did not know when the reply has been received which would go to show that PW1 knew nothing about the transaction and the entire thing has been done at the Instance and instigation of the third party; that the suit promissory note was a forged and concocted one at the instance and Instigation of Subramania Mudallar who was admittedly present and was assisting the conduct of the suit; that the lower appellate Court was in error in holding that mere denial of signature was not sufficient and it was the duty of the appellant to further establish that the suit document is a concocted document and thus the entire reasoning of the first appellate Court proceeded on surmises; that the burden was on the respondent to prove the execution and passing of the consideration and the first appellate Court has wrongly cast 'the burden on the appellant; that the lower appellate Court was not proper in hold-Ing that the appellant after receiving the amount on promissory note was habitually denying the signature and there was no basis for making such observation and thus the decision of the Court below was vitiated by the wrong impression; that there was dissimilarity in the signature of the appellant in the suit document and in the other documents and under such circumstances, the first appellate Court erred in holding that the appellant would have deliberately signed in the other document in a different manner when there was absolutely no warrant or basis for such inference and for all these reasons, the trial Court has dismissed the suit adducing proper and suffice reasons and hence the considered judgment of the trial Court should not have been set aside by the first appellate Court and for the reasons stated above, the first appellate Court's judgment has got to be set aside and the suit be dismissed.7. Vehemently opposing all the contentions of the appellant's side, the learned counsel for the respondent would submit that the respondent herein filed the suit based on a promissory note; that the case of the respondent was that the appellant borrowed from the mother of the respondent one Kamalammal and on her death the respondent obtained a succession certificate and filed the suit; that it is not the case of the respondent that he was present at the time of passing of the consideration under the promissory note; that in order to substantiate the truth and genuineness of the promissory note and the passing of the consideration, he has adduced sufficient documentary evidence to prove the same; that the trial Court without proper consideration and appreciation of the evidence adduced both oral and documentary has dismissed the suit and on appeal the first appellate Court after careful consideration and scrutiny of the same has reversed the Judgment and has granted the decree; that while there was ample evidence to prove that the signature found in Ex. A 1 promissory note was that of the appellant herein, there arose no need for comparison of the same with the other documents available; that according to the first appellate Court, the comparison of the suit promissory note with the available document would clearly indicate that the signature found therein was that of the appellant; that the trial Court has given undue weight and importance to the minor discrepancies in the evidence of the witnesses examined on the respondent's side and has dismissed the same; that the lower appellate Court on thorough discussion of the available evidence has come to the correct conclusion and decreed the suit and hence the judgment of the first appellate Court has got to be sustained and the second appeal has got to be dismissed.8. What is challenged herein is the judgment of the lower appellate Court granting a money decree in favour of the respondent herein. The respondent filed a suit against the appellant stating that the appellant borrowed a sum of Rs. 6,000/- from his mother Kamalammal and executed Ex. Al promissory note on 15-11-1982; that on her death, he was the only heir to succeed to her estate and he obtained Ex. A2 succession certificate and after making a demand under Ex. A3 notice which was duly acknowledged by the appellant under Ex. A4 document, he has filed the suit. in order to substantiate the same, the plaintiff examined himself as PW1 and the scribe by name Loganatha Mudali as PW2, contending that Ex. Al promissory note was a forged one, the defendant examined himself as DW 1.9. As rightly contended by the learned counsel for the appellant, since the appellant has denied the execution of Ex. Al promissory note, the burden of proving that the promissory note was executed by the appellant was on the respondent. From the perusal of the evidence of PW1, it could be well seen that he was not present at the time of execution of Ex. Al promissory note, The plaintiff has examined the scribe Loganatha Mudali as PW2. He has categorically deposed that it was he who wrote Ex. Al promissory note and that the same was written in his shop and the appellant/defendant signed the same in his presence. The appellant is unable to show any reason or circumstance to disbelieve his evidence. The court is of the view that insofar as the execution of Ex. Al promissory note, his evidence would be sufficient to hold so. is  is pertinent to point out that the said witness has deposed that he neither knew Kamalammal nor was present at the time of the passing of the consideration. Had it been true that he is an interested witness, he would not have deposed as above. This would be clearly pointing to the execution of Ex. Al document by the defendant in the presence of PW 2.10. A perusal of Ex. Al promissory note would clearly indicate that there was only one attesting witness to the document and admittedly he was the father of the plaintiff and hence much weight cannot be given to the non-examination of the said attesting witness. is  is true that the said document was not sent to the handwriting expert for the purpose of comparison of the signature in Ex. Al document with the admitted signature of the defendant. The trial Court has stated the same as one of the main reasons for dismissing the suit. But on comparison of Ex. Al document with the postal acknowledgement, the trial Court has come to the conclusion that the signature found in Ex. A1 document was not that of the defendant. The document in question was not sent to :he handwriting expert for the purpose of comparison and the plaintiff has also not taken steps to do the same. But the suit cannot be dismissed on the said ground alone. is  is well settled that the Court can compare the disputed signature with the available admitted signature and arrive at a finding. As stated above, the trial Court gave a finding that the signature found in Ex. Al promissory note was not that of the appellant/defendant, but the first appellate Court has reversed the said finding stating that the signature found in Ex. Al was that of the appellant/defendant. Under the stated circumstances, the Court thought it fit to compare the disputed signature under Ex. A1 promissory note with the other available admitted signature of the appellant. When the signature found in Ex. Al promissory note is compared with the signature of the defendant found in his original deposition as DW1, it would clearly reveal that the signature found in Ex. Al promissory note was that of the appellant/defendant. Thus from the available evidence as discussed above is  has to be found that the plaintiff/respondent has proved the execution of the promissory note by the appellant/defendant. Once the respondent/plaintiff has discharged his burden of proving the same, then it is for the appellant/defendant to prove the non-existence of the consideration found under the promissory note. Once the execution of the promissory note is either admitted or proved, the presumption underSection 118-Aof the Negotiable Instrument Act would arise that it is supported by consideration. is  is true that such a presumption is rebuttable. The defendant could prove the failure of consideration. Under such a situation if the defendant discharges the initial onus of proof showing that the existence of consideration was improbable or doubtful "or the same was illegal, the onus would shift to the plaintiff, who would be obliged to prove it as a matter of fact. in the instant case the defendant has thoroughly failed to discharge the initial onus of proof by showing the non-existence of the consideration. The plaintiff must be given the benefit of presumption underSection 118(a)of the Negotiable Instruments Act in his favour. The mere denial of passing of the consideration apparently cannot constitute a valid defence. in the instant case, it is not the defence put forth by the appellant that though he executed the document, it was not supported by consideration, but it was also bare denial of his signature and Ex. Al promissory note was a forged one. From the evidence of PW2 and comparison of the disputed signature as stated above, it has to be found that the signature found in Ex. Al document was that of the appellant/defendand. is  has to be pointed out that the appellant was unable to show that Ex. Al promissory note was not supported by consideration. The court is of the view that it is a fit case where the presumption underSection 118of the Negotiable instruments Act that when once the signature of the appellant is proved, the presumption that the promissory note was supported by consideration, has to be drawn. There is nothing to. interfere in the judgment of the lower appellate Court, and the second appeal is liable to be dismissed.11. in the result, this second appeal would fail and the same is dismissed with costs. The judgment and decree of the lower appellate Court are confirmed.