Delhi High Court
Nepal Singh vs Om Pal Singh on 6 April, 2005
Equivalent citations: AIR2005DELHI330, III(2005)BC540, 119(2005)DLT272, 2005(82)DRJ320, AIR 2005 DELHI 330, (2005) 3 BANKCAS 540, (2005) 119 DLT 272, (2005) 82 DRJ 320
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Rekha Sharma
JUDGMENT Mukundakam Sharma, J.
1. The respondent herein, as plaintiff, instituted a suit for recovery of an amount of Rs.54,450/- under Order xxxvII of the Code of Civil Procedure against the appellant/defendant herein, on the basis of a pronote-cum-receipt dated 6th May, 1982.
2. It was alleged in the plaint that the appellant/defendant being in need of money repeatedly requested the plaintiff in the month of April, 1982 to give a loan of Rs.40,000/-. It was alleged that the plaintiff agreed and gave a loan of Rs.40,000/- to the defendant on 6th May, 1982, who on receipt of the said loan from the plaintiff executed a promissory note-cum-receipt of the same date after receiving the said amount in cash with stipulation to re-pay the same on demand along with interest at the rate of 12% p.a. However, thereafter, the defendant failed to re-pay the amount despite several repeated oral demands and accordingly a registered notice dated 15th April, 1985 was sent by the plaintiff to the defendant demanding re-payment of the said amount. Despite receipt of the said notice the appellant/defendant did not pay back the amount and accordingly the suit was instituted for recovery of the aforesaid amount along with interest at the rate of 12% p.a. The suit was based on the promissory note-cum-receipt dated 6th May, 1982 under Order xxxvII of the Code of Civil Procedure .
3. The defendant entered appearance and filed an application seeking for leave to defend. The trial court after hearing the counsel appearing for the parties on the aforesaid application seeking for leave to defend, granted leave to defend the suit on defendant furnishing surety, which he had furnished. Thereafter, the defendant also filed the written statement wherein the defendant had alleged that the aforesaid promissory note-cum-receipt, on which the entire suit is based, is a forged document. It was categorically and totally denied by the defendant that he had ever borrowed a sum of Rs.40,000/- from the plaintiff. He also denied execution of any promissory note-cum-receipt dated 6th May, 1982. It was alleged that the aforesaid suit is filed by the plaintiff in collusion with his brother Netra Pal Singh, who is a marginal witness to the promissory note-cum-receipt dated 6th May, 1982.
4. On the basis of the pleadings of the parties three issues, which were as follows, were framed by the learned trial court.
1. Whether the defendant obtained a loan of Rs.40,000/- from the plaintiff and executed a pronote and receipt for the same? OPP
2. To what amount of interest the plaintiff is entitled? OPP
3. Relief.
5. In support of the case of the plaintiff, he examined himself as PW1 and also examined two more witnesses, namely, his brother Netra Pal Singh, PW2 and Sh.Malkhan Singh, Assistant Audit Officer, as PW3. In rebuttal, defendant only examined himself as DW1 and closed his evidence. Thereafter, the learned Additional District Judge proceeded to hear the arguments. After considering the records and appreciation thereof the learned Additional District Judge held that there was substantial evidence on record to prove that the defendant executed the pronote-cum-receipt Ex.P1 after taking the said loan. It was also held by the learned trial court that pronote-cum-receipt also proves and establishes that the loan was given to the defendant with interest at the rate of 12% p.a. Consequently the learned trial court decreed the suit in favor of the respondent/plaintiff for recovery of the amount of Rs.54,450 along with costs and interest at the rate of 6% p.a from the date of filing of the suit till realisation of the decretal amount.
6. Being aggrieved by the aforesaid judgment and order the present appeal was filed in this court. The learned counsel appearing for the appellant contended before us that the aforesaid pronote-cum-receipt dated 6th May, 1982 was a forged and fabricated document and, therefore,e no reliance should have been and could have been placed on the said document. It was also submitted by him that the conclusion arrived at by the learned trial court that the said document was executed by the defendant after and on comparing the signatures given by the defendant in the court on 13th March, 1991 with disputed signatures allegedly made by the defendant at point PB on the promissory note-cum-receipt Ex.P1, and thereafter coming to the conclusion that all the signatures were clearly of the defendant, was unsustainable as no such comparison could be made by the learned trial court of the disputed signatures and, therefore, the decree is required to be set aside and quashed. It was also submitted by him that the suit was false and fabricated, which is also proved by the judgment and decree of the learned Additional District Judge, Delhi passed in Suit Nos. 148/1987 and 146/1987, which was between the brother of the plaintiff and the defendant alleging similar loan taken by the defendant and which allegation was found to be incorrect and unsustainable by the learned Additional District Judge, Delhi.
7. We have perused the evidence on record very carefully and considered the submissions made by the learned counsel for the appellant. The first issue that falls for our consideration is whether or not the promissory note-cum-receipt dated 6th May, 1982 allegedly executed by the defendant is a forged and fabricated document. The said issue is relevant particularly because of the fact that the entire suit for recovery of the amount of Rs.40,000/- along with other demand, was based solely on the said promissory note-cum-receipt. The respondent/plaintiff, in support of his case of giving loan to the appellant/defendant, supported and acknowledged by the aforesaid promissory note-cum-receipt, examined himself as also his brother Netra Pal Singh as PW2 and Malkhan Singh PW3, who is an independent witness. PW1, the plaintiff had stated that the defendant took a loan of Rs.40,000/- from him on 6th May, 1982 in presence of his brother Netra Pal Singh, Gurvinder Singh and Malkhan Singh. He had also stated in his deposition that in token of receiving the said loan, the defendant executed the said promissory note-cum-receipt, which is proved as Ex P1. He also stated that the defendant signed the promissory note-cum-receipt at points A & B, which was also signed by Gurdev Singh at point C and Netra Pal Singh at Point D. In his cross-examination he had also stated that his brother had also advanced a loan to the defendant. He also categorically denied the suggestion that no loan was advanced to the defendant and that he had forged the receipt and the pronote. He had also denied the suggestion that Malkhan Singh was not present at that time. He stated that he had sold his vehicle HRP-2128 during those days and, therefore, he had the money with him. His brother Netra Pal Singh PW2 supported the statements made by the plaintiff. He categorically stated that Om Pal Singh, the plaintiff, advanced a loan of Rs.40,000/- on interest at the rate of 12% per annum to the defendant in his presence and also in the presence of Malkhan Singh whereupon the defendant executed the promissory note-cum-receipt Ex.P1. He also corroborated the statement of his brother that he had sold his vehicle for Rs.1,80,000/- and he paid that money from that amount. In his cross-examination, he stated that the suit which he had filed against the defendant was dismissed by the court of Additional District Judge, Delhi and that as against the said judgment he filed an appeal which is pending in the High Court. Malkhan Singh is an independent witness, who was examined as PW3. He was also working as Assistant Audit Officer and was, therefore, a very responsible person. He had corroborated and testified to the effect that he knew the plaintiff and the defendant and that the defendant borrowed Rs.40,000/- from the plaintiff on 6th May, 1982 and that at that time the plaintiff and his brother Netar Pal Singh and others were present. According to him the defendant brought typed pronote and Om Pal Singh gave Rs.40,000/- to him upon which the defendant executed the pronote-cum-receipt in his presence. He had also proved the signature of the defendant Nepal Singh on the said document Ex.P1, the original pronote-cum-receipt at points A & B and the signature of Gurdev Singh at point-C and the signature of Netar Pal Singh at point D. He denied the suggestion that he was not present when the pronote-cum-receipt was executed by the defendant and also denied the suggestion that the plaintiff did not pay Rs.40,000/- in cash to the defendant.
8. The case of the defendant, on the other hand, is of total denial. He denied having executed any pronote-cum-receipt on the said date. He also denied his signature at points A & B on the pronote-cum-receipt and categorically asserted that those were not his signatures. He went on to depose making a denial not only of his signatures on the pronote-cum-receipt but he also denied his signatures on the vakalatnama executed by him in favor of Sh.Risal Singh, Advocate stating that the signatures appearing on the said vakalatnama were not his signatures. He also stated that except signing at Point PA on the vakalatnama given to his counsel Sh.L.P.Prabhakar, he had not signed any other document on the file. The defendant went to the extent of stating in his deposition recorded on oath that he had not even signed the written statement at point PB. He also denied his signatures on the application moved by him under Order xxxvII Rule 4 and Section 151 of the Code of Civil Procedure seeking for leave to defend the suit and stated that the said application was not signed by him at point PC. He also denied his signatures appearing on the application moved by him in this case under Section 5 of the Limitation Act. The aforesaid nature of the evidence adduced by the defendant clearly proves and establishes that he has not come to the court with clean hands. He was bent upon denying his signatures wherever the same were appearing and went to the extent of denying his signatures even on the application seeking for leave to defend and also in the application filed under Section 5 of the Limitation Act, which were considered by the court and were allowed in his favor. He appears to us to be not a truthful witness at all and was lying, even on oath. There is no reason and also no evidence on record to disbelieve the clear statements of the witnesses examined on behalf of the plaintiff. The independent witness, PW-3, who is a very responsible officer, corroborated the statements of PW1 and PW2 on all material particulars. He also specifically stated about the execution of pronote-cum-receipt dated 6th May, 1982 Ex.P1 by the defendant. Besides, the signatures of the defendant in the pronote-cum-receipt when compared with his signatures appearing in other documents, which are on record, clearly prove and establish that all the signatures are of the same person and it is of the defendant. The trial court also came to a similar conclusion, after comparing the said disputed signatures of the defendant taken in the court on 13th March, 1991 in the light of Section 73 of the Indian Evidence Act.
9. The counsel for the appellant vehemently opposed the conduct of the trial court in comparing the signatures given by the defendant in court with the disputed signatures, on the ground that such opinion of the court is not conclusive. But the fact remains that Section 73 of the Evidence Act empowers a court to make such comparison in an appropriate case. In this connection, reference may be made to a decision of the Supreme Court in K. S. Satyanarayana v. V.R. Narayana Rao AIR 1999 SC 2544. In paragraph 7 of the said judgment, the Supreme Court has held as follows:
A piquant situation had developed before the trial court when the 1st defendant denied his signatures on the written statement and vakalatnama in favor of his counsel. Trial court should have immediately probed into the matter. It should have recorded statement of the counsel for the 1st defendant to find out if vakalatnama in his favor and written statement were not signed by the 1st defendant whom he represented. It was apparent that the 1st defendant was trying to get out of the situation when confronted with his signatures on the vakalatnama and the written statement and his having earlier denied his signatures on Exh.P-1 and Exh. P-2 in order to defeat the claim of the plaintiff. Falsehood of the claim of the 1st defendant was writ large on the face of it. Trial court could have also compared the signatures of the 1st defendant as provided in Section 73 of the Indian Evidence Act. Section 73 is reproduced as under:-
Comparison of signature, writing or seal with others admitted or proved.
73. In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger impression.
10. In the light of the aforesaid ratio of the decision of the Supreme Court, we are of the considered opinion that not only the trial court but also the appellate court shall have the power under Section 73 of the Evidence Act to apply the test of comparison of writing in an appropriate case with sufficient care and caution. As a matter of prudence, court may not base its findings solely on comparison made by the court. But there could be no bar for the court to take resort to the said power and compare the signatures and give its findings thereon which could be considered with the findings on other evidence on record. In the present case, the aforesaid findings on the signatures of the appellant on the disputed document are based not only on the test of comparison of the signatures but also on the basis of other evidence on record. Comparison of the signatures and the conclusion that the same are of the same person supports and corroborates the conclusions that have been arrived at by this court that the oral evidence adduced by the witnesses examined on behalf of the plaintiff clearly prove and establish the transaction between the plaintiff and the defendant and also execution of the said document. We, therefore, hold that the said pronote and receipt (Ex. P-1) is a legal and valid document and the same was executed by the defendant by putting his signatures thereto in presence of witnesses.
11. Heavy reliance was placed by the learned counsel appearing for the appellant on the judgment and decree passed by the learned Additional District Judge, Delhi in Suit Nos. 148/1987 and 146/1987, which was between the brother of the plaintiff and the defendant. It was submitted by making a reference to the said judgment that the transaction in the said case allegedly made between the brother of the plaintiff and the defendant was found to be not proved by the learned Additional District Judge, Delhi and, therefore, the transaction alleged in the present case should also be disbelieved on the same ground. It is to be noted, at this stage, that the aforesaid judgment was not proved and exhibited in this suit. The said judgment was delivered on 2nd May, 1988 whereas the judgment in the present case was delivered only on 23rd July, 1996. It is also to be noted that even in this case no application was filed by the appellant praying for allowing him to lead additional evidence by allowing him to produce the said judgment and decree in this case. Unless the said document is brought on record and unless cogent and reliable evidence is led showing similarity between the two transactions, no such reliance could be placed on the said judgment.
12. Besides, the said transaction was not between the plaintiff and the defendant but it was between the brother of the plaintiff and the defendant. In para 17 of the said judgment, while making a reference to the said suit and while holding the same to be not maintainable, it was held that the claimant therein had failed to adduce cogent and reliable evidence to prove that he had advanced any money or that the objector had executed the pronotes or the arbitration agreement or that he had deposited the money with the DDA out of his own funds. Therefore, the said case was decided in the light of the evidence available and on the basis of particular facts of that case. It is also clearly brought on record that as against the said judgment and decree, an appeal has been preferred, which is pending in this court. Therefore, we are of the considered opinion that the facts of this case should be adjudged and decided on the basis of the evidence available on the records of this case and the decision in this case cannot be influenced and shall have no relevance with a decision rendered in another case as the facts of both the transactions are completely separate and different.
13. In view of the aforesaid findings, we find no infirmity in the judgment and decree passed by the learned trial court and we, therefore, uphold and confirm the same. Hence, we affirm the judgment and decree which was passed by the learned Additional District Judge, Delhi on 23rd July, 1996. Accordingly, the decree for recovery of an amount of Rs.54,450/- along with costs of the suit and interest at the rate of 6% p.a from the date of filing of the suit till realisation of the decretal amount passed in favor of the plaintiff and against the defendant is upheld. We are informed that an amount of Rs.40,000/- was deposited in this court by the appellant, which was paid to the respondent. Adjustment of the aforesaid amount shall be given and the balance amount, which is liable to be paid by the appellant, in terms of the decree, shall be paid in accordance with law. Consequently, we dismiss the appeal with cost.