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Madras High CourtSA(MD)/997/2011partly allowed

Valliyammal v. A.Sooriyanarayanan

2021-06-09Honourable Mr Justice G.R.Swaminathan4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.06.2021

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN S.A.(MD)No.997 of 2011 and M.P.(MD)No.1 of 2011 Valliyammal ... Appellant/Appellant/Defendant Vs.

A.Sooriyanarayanan @ Sooriyanarayana Moorthy, ... Respondent/Respondent/Plaintiff Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 30.03.2011 passed in A.S.No.148 of 2007 on the file of the Subordinate Judge, Valliyoor, confirming the Judgment and Decree dated 26.10.2006 passed in O.S.No.24 of 2005 on the file of the Principal District Munsif, Valliyoor.

For Appellant : Mr.J.Ashok, for M/s.Jayapaul Associates.

For Respondent : Mr.S.Mani

J U D G M E N T

The defendant in O.S.No.24 of 2005 on the file of the Principal District Munsif, Valliyoor, is the appellant in this second appeal.

2.The respondent Sooriyanarayanan @ Sooriyanarayanamoorthy filed the said suit for recovering a sum of Rs.81,296/- from the appellant herein with interest. The suit was laid on the strength of Ex.A.1 promissory note dated 16.08.2004. The case of the plaintiff is that his relative Tmt.Ovia, introduced her colleague to the appellant herein and the appellant herein borrowed a sum of Rs.73,771/- on 16.08.2004 and executed promissory note agreeing to repay the said amount with interest at 2% p.a. The defendant contrary to her assurances, did not repay the principal amount or the interest. Therefore, the plaintiff issued Ex.A.2 notice dated 07.12.2004. Though the appellant received the same as evidenced by Ex.A.3 acknowledgement card, she did not choose to comply with the demand set out in the notice. Therefore, the suit came to be laid. The appellant filed her written statement denying the suit claim. According to the appellant, the suit promissory note had been fabricated. She also attributed motive to Ovia. 1/4

3. The plaintiff examined himself as P.W.1, Oviya was examined as P.W.2 and one M.Selvakumari was examined as P.W.3. Ex.A.1 to Ex.A.7 were marked. The defendant examined herself as D.W.1 and Ex.B.1 to Ex.B.4 were marked.

4. The trial Court by Judgment and Decree dated 26.10.2006 decreed the suit as prayed for.

5. Aggrieved by the same, the defendant filed A.S. No.148 of 2007 before the Sub Court, Valliyoor. The first appellate Court by the impugned Judgment and Decree dated 30.03.2011 dismissed the appeal and confirmed the Judgment and Decree passed by the trial Court. Challenging the same, this second appeal came to be filed.

6. Though the second appeal is of the year 2011 and interim stay has been granted till date, it has not been admitted. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and submitted that this Court may formally admit the appeal and after putting the respondent on notice, take up this second appeal for consideration.

7. I am not persuaded by the said request. It is true that the appellant had denied her signature in ExA.1 promissory note. But then, the learned trial Munsif after calling for admitted signatures of the defendant had compared her signature with the disputed signature in Ex.A.1 and come to the conclusion that Ex.A.1 had actually been executed by the defendant. The contention of the appellant's counsel is that the Court could not have undertaken the exercise of comparison on its own. In Thirumuruga Ramalingam Vs. Mohamed Hanifa (2015 SCC OnLine Mad 440), a learned Judge of this Court held as follows :

"9.These provisions have been subject matter of several decisions of this Court. No doubt, a Court does not exceed its power under section 73, if it compares the disputed signatures with the admitted signature of the party so as to reach its own conclusions. Though there is no legal bar to the Judge using his own eyes, to compare the disputed signatures without the aid of an handwriting expert, the Judge should hesitate to render his findings with regard to the identity of the handwriting. The reason is that such opinion forms the sheet anchor against a person whose signature is compared. Such venture by the first appellate Court to compare the signatures by itself does not mean that the Court had assumed the role of an expert. Section 73 of Evidence Act expressly enables the Court to compare the disputed signature. Such comparison of signature by an expert is not done by the parties, may be for the reason of ignorance or affordability. Then it becomes the duty of the Court 2/4

to compare the signature and come to a conclusion. Thus the Court cannot avoid its responsibility in the absence of an expert opinion. If the opinion of an expert is available, it would aid the Court in proper adjudication of the matter. When the same is not available, the Court will have to seek guidance from its own experience and knowledge."

8. In the case on hand, Ex.A.4 to Ex.A.7 in which the signatures of the defendant were found were marked by P.W.3 Selvakumari. Since both sides have not taken steps for referring the matter for the opinion of the handwriting expert, the trial Court was definitely entitled to exercise the power and jurisdiction under Section 73 of the Indian Evidence Act, 1872. In fact in the aforesaid order it has been held that when the parties have not chosen to refer the matter for expert opinion, it becomes the duty of the Court to compare the signatures and come to a conclusion. Once the Court below had found that Ex.A.1 was actually executed by the defendant, the presumption under Section 118 of the Negotiable Instruments Act, 1882 got triggered.

The appellant had not rebutted the presumption and therefore, the trial Court rightly accepted the claim of the plaintiff and decreed the suit. The Courts below have adopted the correct approach and applied the relevant principles to render finding in favour of the plaintiff. The impugned Judgments do not call for any interference. However, I must note that awarding of interest at 24% p.a from the date of the suit till the date of realisation appears to be little harsh. Therefore, the impugned Judgment and Decree passed by the Courts below is modified and I direct the appellant to pay a sum of Rs.81,296/- with subsequent interest at 6% on the principal amount of Rs.73,771/- from the date of plaint till the date of realisation.

9. With this modification in the matter of rate of interest, this second appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(P & A) // True Copy // / /2021 Sub Assistant Registrar(CS) PMU Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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To:

1. The Subordinate Judge, Valliyoor.

2. The Principal District Munsif, Valliyoor.

3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. (2 copies) +1 CC to M/s.S.MANI, Advocate ( SR-19157[F] dated 10/06/2021 ) S.A.(MD)No.997 of 2011 09.06.2021 KMV(CO) TR(05.07.2021) 4P 6C 4/4