Madras High Court
Narayanan Servai vs Seenuammal on 3 September, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.09.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A.No.2198 of 2004 Narayanan Servai ... Appellant vs. 1.Seenuammal 2.Raja 3.Karthikeyan 4.Surendra ... Respondents Appeal filed under Section 100 of C.P.C. against the judgment and decree in A.S.No.158 of 2000 dated 19.12.2001 on the file of the Principal District Judge, Cuddalore District reversing the judgment and decree in O.S.No.9 of 1994 dated 31.08.2000 on the file of the Principal Sub-Judge, Vridhachalam. For Appellant : Mr.S.Kamadevan For Respondents : Mr.D.Shivakumaran J U D G M E N T
This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.158 of 2000 dated 19.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.9 of 1994 dated 31.08.2000 in decreeing the suit.
2. The appellant was the plaintiff and the respondents are the legal representatives of the deceased defendant in the suit filed before the trial court. For convenience, the ranks of parties before the trial court are being maintained infra.
3. The case of the plaintiff is as follows:-
Claim for Rs.57,138/- being the Principal and interests due on a pronote dated 11.01.1991 executed by the defendant in favour of the plaintiff for Rs.45,000/- payable with interest at the rate of 12% p.a but the interests is claimed at the rate of 9% p.a. The defendant did not repay the amount. Therefore, the plaintiff has issued notice to the defendant has sent a reply on 21.12.1993, with false allegations. Therefore, the plaintiff has filed the suit.
4. The case of the defendant as stated in the written statement would be as follows:-
No amount was borrowed from the plaintiff and for which no promissory note was executed by the defendant. The suit promissory note is not a true one. The plaintiff and the defendant are living in the same street. The plaintiff is running a petty shop. On 19.10.1993, there was a dispute between the wife of plaintiff and the wife of the defendant. A police complaint was also lodged and the police settled the matter without registering case. Due to that enimity, the defendant fabricated the suit promissory note. The defendant has issued reply to the notice given by the plaintiff. The scribe of the promissory note is the brother in law of the plaintiff. The attestators are also the relatives of plaintiff. The reasons given for borrowing the amount is not correct. There is no necessity for the defendant to borrow. He is having 25 acres of land and he is also a contractor. Therefore, the suit has to be dismissed with compensatory costs.
5. The trial court had framed necessary issues on the aforesaid pleadings and had come to the conclusion of decreeing the suit filed by the plaintiff. The aggrieved defendant filed the appeal before the 1st appellate court in A.S.No.158 of 2000 as challenging the judgment and decree passed by the trial court. During the pendency of the said appeal, the defendant died and his legal representatives were impleaded as appellants 2 to 5 in the said appeal and they prosecuted the appeal before the 1st appellate court. The 1st appellate court heard the arguments of both sides and had come to the conclusion of setting aside the judgment and decree passed by the trial court and thereby the suit was dismissed as the appeal was allowed by the 1st appellate court.
6. The aggrieved plaintiff has preferred the present appeal against the reversal judgment of the 1st appellate court.
7. On admission of the said appeal, this Court has formulated the following substantial questions of law for consideration in this appeal.
"1. Whether the lower appellate court is justified in coming to the conclusion that the defendant rebutted the presumption regarding the execution of Ex.A1 in terms of section 118 of Negotiable Instruments Act ?
2. Whether the lower appellate court is justified in coming to the conclusion that the plaintiff has no sufficient means to advance money under Exhibit A1 to the defendant?
3. Whether the lower appellate court is justified in coming to the conclusion that the defendant had not executed Exhibit A1, relying upon the evidence of DW2, which cannot be regarded as substantive evidence ?"
8. Heard Mr.S.Kamadevan, learned counsel for the appellant/plaintiff and Mr.D.Shivakumaran, learned counsel for the respondent/legal representatives of the deceased defendants.
9. The learned counsel for the plaintiff would submit in his argument that the plaintiff filed the suit for the recovery of money on the foot of promissory note Ex.A1 dated 11.01.1991 for a sum of Rs.51,138/- and the trial court had decreed the suit after appraising the evidence adduced on either side. He would also submit that the 1st appellate court on the appeal preferred by the defendant had without considering the facts and circumstances of the case established through the evidence had interfered with the well considered judgment of the trial court. He would further submit that the plaintiff was a man of sufficient means who returned from abroad after earning considerable money and he was able to advance the consideration for the suit promissory note Ex.A1. He would also submit that the plaintiff advanced the said money through the promissory note for the purchase of a lorry as a part of money to be shown for the loan to be obtained from TIIC. He would also submit that the reasoning given by the 1st appellate court that the defendant was returned a sum of Rs.10000/- on 12.01.1991 and therefore, there would not be any necessary to borrow a sum of Rs.41000/- on 11.01.1991 from the plaintiff cannot be correct. He would further submit that the plaintiff has proved the execution of pro note Ex.A1 by examining attestor and scribe and the burden shifted to the defendant which is hearby lying upon the defendant. He would further submit that the execution of the hand writing expert which was funded by the defendant could not be considered an acceptable truth. He would also submit that the trial court correctly weighed the evidence and had refused the evidence of hand writing expert and uphold the plaintiff's evidence as true. He would also submit that the rebutable evidence for removing the presumption under Section 118(g) of Negotiable Instrument Act was not adduced and the burden was not discharged by the defendant and therefore, the evidence adduced by the plaintiff cannot be said, as disproved. He would also draw the attention of the Court that the principle laid down in the judgment of Hon'ble Apex Court reported in 2008 (7) SCC 655 (Mallavarapu Kasivisweswara Rao vs Thadikonda Ramulu Firm And Ors.) in support of the principles of shifting the burden over the presumption drawn under Section 118 of Negotiable Instrument Act. He would also rely upon a judgment of Hon'ble Division Bench of this Court reported in 2006 (2) MLJ 41 (N.S. Arumugam vs Trishul Traders) for the same principle. Yet another judgment of this Court reported in 2001 (1) CTC 281(Mohammed Ali v. Abdul Sinab) was relied upon by the learned counsel for the plaintiff for the said principle. Relying upon those decisions, he submitted in his argument that the defendant did not discharge the burden of proving that the suit promissory note was not executed by him nor the consideration was paid by the plaintiff and the defendant received the same. He would also draw the attention of the Court regarding the nature of hand writing expert's report and the evidence. For that a judgment of Hon'ble Apex Court reported in AIR 1999 SC 3318 (State Of Himachal Pradesh vs Jai Lal And Others) was relied upon. The judgment of Division Bench of this Court reported in 2008 (1) CTC 97 (J. Naval Kishore vs D. Swarna Bhadran) was also cited, as regards the opinion given by the private experts are biased. The judgment of Hon'ble Apex Court reported in 2009 (9) SCC 709 (Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors.) was also relied upon regarding the admissibility of the expert's opinion as advisory only. He would also submit that the hand writing expert cannot act as a Judge to decide the veracity of the disputed signature. Therefore, he would submit in his argument that the judgment and decree passed by the 1st appellate court was thoroughly mislead and the 1st appellate court had ventured in interfering the judgment and decree passed by the trial court which cannot be done except on finding the commission of grave errors. He would therefore submit that the 1st appellate court has meekly interfered with a judgment and decree passed by the trial court and therefore, it has to be set aside and the judgment and decree passed by the trial court ought to have been restored and thus the suit be decreed.
10. The learned counsel for the respondent/legal representative of the defendant would submit in his argument that the 1st appellate court had come to a correct conclusion of reversing the judgment of the trial court since the plaintiff's witness would depose contradictory evidence with regard to the payment of money. He would also submit that one of the witnesses (PW2) had deposed that a total sum of Rs.45,000/- was given in the form of Rs.100/- note counted on every currency and it was not a bounded bundle when it was given to the defendant. He would also submit that the evidence of PW3 would be contradictory that he would say that the entire Rs.45,000/- were given by tying in one bundle but was not given one after another with the defendant. He would also submit that it would be a contradictory evidence adduced by the witnesses of the plaintiff for the payment of consideration and it was reflected in the evidence of hand writing expert who had categorically given a opinion with the signature found in Ex.A1 pro note was not belonging to the defendant. He would also submit that this corroborating evidence of hand writing expert would be sufficient to support the non-reliability of the contradictory nature of the evidence of PW2 and PW3 and therefore, the 1st appellate court was right in coming to the conclusion that the plaintiff had not proved the execution of promissory note, overcoming the rebuttal evidence adduced by the defendant. He would also submit that the onus of proving shifted over the plaintiff once again and the rebuttal evidence has been adduced by the defendants was to the satisfaction of the Court. He would also submit that the hand writing expert, even though, appointed at the instance of the defendant and paid his or her remuneration to the defendant and he was a third party and he would have no interest in any of the parties to the suit and therefore, the expert's opinion when produced and corroborated with the evidence of PW2 in disproving the case, naturally, the decision taken by the 1st appellate court would become final. He would also submit in his argument that PW1 would accept in his evidence that the witnesses examined by him as PW2 and PW3 are close relatives and therefore, they ought to have been considered as interested witnesses. He would also submit that the discrepancies in the evidence of PWs 1 to 3 would improbabilise the case of the plaintiff and the 1st appellate Court correctly appraised the evidence and came to a conclusion that the evidence of PWs could not be relied. He would also submit that the plaintiffs did not show his means to advance the money to the defendant. He would further submit that the payment of consideration by way of handing over of currency were spoken differently by all the three witnesses, which itself is sufficient to discard their evidence. When the evidence of PWs are probabilising the case of the plaintiff, the execution of the promissory note would not be deemed as proved. He would also submit that the presumption under Section 118(g) of Negotiable Instruments Act can be drawn only when the execution was proved by the plaintiff and it would invite a rebuttal evidence from the defendants to disprove the case of the plaintiff. He would further insist in his argument that the hand writing expert even though a private expert has thoroughly analysed the disputed signature in Ex.A1 promissory note with that of the admitted signatures of the defendants and had clearly exhibited and displayed that the signature found in Ex.A1 was a forged one. He would also submit that the 1st appellate court had also gone through the said signature and had accepted the evidence of the hand writing expert and her report. He would also argue that the evidence adduced by the plaintiff to show his capacity to advance the money was in the year 1988 when the plaintiff returned from foreign country and those articles brought through the Port namely six pieces would not fetch an amount to construct the house as well as to advance money to the defendant. He would further submit that the PW1 (plaintiff) admitted in his evidence that he has utilised the money obtained from selling the articles to put up constructions and in that event, how the said money could be utilised for advancing a loan to the defendant, after three years period. He would further submit that the purpose of obtaining loan was to buy a lorry to which the defendant had applied for loan from a Bank and there was no necessity to get any money from the defendant. He would also submit that the signature found in Ex.A1 promissory note could be easily understood as forged one as the signature was shaky and the genuineness of the signature was denied by the defendants in his evidence. He would also draw the attention of the Court to the evidence of PW1 that he was having a Bunk in the suit village, having strength of 1000 persons and his shop was one among 7 or 8 bunk shops, would go to show that the income from the bunk shop would be a meagre and the plaintiff cannot be in a position to lend the money to the defendant. He would further submit that the defendant was having sufficient properties and income from those properties which could be established from the production of the documents in Exs.B1 to B25 and therefore, there cannot be any borrowing from the plaintiff much less, Ex.A1 borrowing by the defendant.
11. The learned counsel for the respondent/defendant would cite a judgment of this Court reported in 2002 (2) MLJ 715 (K.Sethurathinam v. Subramanian) for the principle that the presumption under Section 118 of Negotiable Instruments Act could be drawn when the plaintiff has proved the execution of the promissory note. He would also cite yet another authority reported in 2004 (4) LW 482 (Natarajan v.Marappa Gounder) for the same principle. The learned counsel for the defendant would further cite a judgment of this Court reported in 2005 (1) CTC 409 (Ayyakannu Gounder v. Virudhambal Ammal) for the principle that the plaintiff has established his case and he cannot picking holes in the defendant's case and seek relief upon them. He would further submit in his argument that the 1st appellate court had thoroughly analysed the evidence and had accepted the report of the hand writing expert's opinion in the facts and circumstances spoken through the evidence adduced by both parties and came to a conclusion that the suit promissory note was a forged one and there is no perversity or bias in reaching the findings and therefore, the judgment and decree passed by the 1st appellate court may not be interfered and it may be confirmed. He would also submit that there is no grave error or violation of principles of law in reaching the conclusion by the 1st appellate court and therefore, the second appeal may be dismissed with costs.
12. I have given anxious thoughts to the arguments advanced on either side.
13. The suit was filed by the plaintiff for the recovery of a sum of Rs.57,138.75 with subsequent interest at the rate of 9% per annum on the principal of Rs.45,000/- with costs. The said suit was launched on the foot of a promissory note said to have been executed by the defendant in favour of the plaintiff. The case of the plaintiff was that the defendant had asked for a loan of Rs.45,000/- in order to buy a lorry for the defendant's purpose and on payment of the said sum of Rs.45,000/- by the plaintiff to the defendant, he had executed a demand promissory note in favour of the plaintiff on 11.01.1991, after the execution of the promissory note by the defendant, he did not elect to repay the said money and therefore, the plaintiff had issued the notice to the defendant on 13.12.1993 to which the defendant replied on 21.12.1993 with wrong particulars.
14. According to the defendant, the suit promissory note was a fabricated one, in order to harass the defendant since there was a quarrel in between the plaintiff and the defendant on the foot of wordy quarrel emanated between the wives of the plaintiff and the defendant and therefore, the plaintiff had created the promissory note with the help of his close relatives as attesting witness and scribe of the said promissory note.
15. The trial court had comprised the evidence of PWs namely the plaintiff as PW1, the scribe as PW2 and the witness as PW3 and had come to the conclusion of decreeing the suit as prayed for. However, the 1st appellate court had considered the facts and circumstances of the case with the help of expert's opinion produced in Ex.X5 and the photographs as Ex.X4 and had come to the conclusion that the suit promissory note was not a true one but it was fabricated by the plaintiff and thus, the first appeal was allowed. Consequently, the suit was dismissed with costs.
16. Challenging the judgment and decree passed by the 1st appellate court, the main argument advanced by the learned counsel for the plaintiff was that the plaintiff has proved the execution of promissory note in Ex.A1 by the defendant in favour of the plaintiff through the evidence of PW2 and PW3 and the passing off consideration to the tune of Rs.45,000/- was considered as proved and therefore, the presumption under Section 118 of Negotiable Instruments Act has to drawn in and unless such presumption is rebutted by cogent evidence produced on the side of the defendant, the suit could not be dismissed, and it ought to have been decreed. He would also cite a judgment of this Court reported in 2001 (1) CTC 281 (Mohammed Ali v. Abdul Sinab) for the aforesaid principle. The relevant passage relied upon by the learned counsel for the plaintiff would be as follows:-
"20. In the light of the above decisions, it becomes obvious that once it is pleaded and proved that these promissory notes have been signed by the defendant on receiving the considerations, the presumption would arise and the same has to be rebutted by the defendant. Even this rebuttal could be given by direct evidence or by bringing on record the preponderance of probabilities also. In the instant case, the presumption has not been rebutted by the defendant even by the preponderance of probabilities."
17. For the same principles of law, a judgment of Hon'ble Division Bench of this Court reported in 2006 (2) MLJ 41 (N.S. Arumugam vs Trishul Traders) has been cited by the learned counsel for the plaintiff in para 12 would be run as follows:-
"12. ......... The above said passage clearly shows that the burden of proof as a question of law rests on the plaintiff, but since the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration and this presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendants."
18. The learned counsel for the plaintiff would also cite a judgment of Hon'ble Apex Court reported in 2008 (7) SCC 655 (Mallavarapu Kasivisweswara Rao vs Thadikonda Ramulu Firm And Ors.). The relevant passage would run as follows:-
"17. .... From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged 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 and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour."
19. The dictum laid down in the aforesaid judgment would go to show that when the plaintiff has either proved the execution of promissory note by the defendant or the defendant himself had admitted the execution or atleast signature put in the promissory note, the presumption under Section 118 of the Negotiable Instruments Act would come into play. There is no doubt in the said position of law. Whether the plaintiff has proved the execution of promissory note produced in Ex.A1 is the question to be solved. According to the 1st appellate court, the plaintiff did not prove the execution of promissory note in his favour. Since the evidence of PW2 and PW3 are quiet colluded together since they are relatives to the plaintiffs. The further contention was that the relationship of PWs 2 and 3 has been categorically admitted in their evidence and therefore, there is every possibility of fabricating the promissory note in favour of the plaintiff, having the enimical attitude had in between parties.
20. The alleged proof made by the plaintiff was said to have been disproved by the defendant by showing that the signature found in Ex.A1 was a forged one through the examination of those signatures by the hand writing expert and by producing the said report with photographs taken by her and also by examining the hand writing expert. The hand writing expert had categorically come to a conclusion that the signature put in the admitted documents given to her for comparing the signature found in Ex.A1 promissory note and had come to the conclusion that the signature in Ex.A1 promissory note was not put by the defendant. Questioning the proprietary of the expert's opinion, the learned counsel for the plaintiff would rely upon certain judgments of this Court as well as Hon'ble Apex Court. The Division Bench of this Court reported in 2008 (1) CTC 97 (J. Naval Kishore vs D. Swarna Bhadran) as lay down certain principles which would run as follows:-
"66. We feel that opinion evidence of CW-1 is only one piece of evidence which according to us raises suspicion as to the genuineness of Ex. P-2 Will. This coupled with the fact that the Will is not a registered one. We have carefully perused and examined the enlarged disputed signature and the admitted signatures. We are convinced with the reasoning given by CW-1 for his opinion."
21. Yet another judgment was relied upon by the learned counsel for the plaintiff regarding the validity of the report of the hand writing expert reported in 2009 (9) SCC 709 (Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors.). The relevant passage would run as follows:-
"18. The importance of the provision has been explained in the case of State of H.P. v. Jai Lal and Ors., It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."
22. In the aforesaid judgment Hon'ble Apex Court has laid down that the hand writing expert must be a qualified and experienced person to give a proper report for assisting the Court. Further more, a judgment of Hon'ble Apex Court reported in AIR 1999 SC 3318 (State Of Himachal Pradesh vs Jai Lal And Others) has been cited. The relevant passage would be as follows:-
"20. .... Comparing the evidence of the experts brought on record by the parties, it is difficult to come to a definite conclusion that the accused persons have deliberately entered inflated quantities of scabbed apple produced in the orchard in question which were purchased by the State Government."
23. These judgments would go to show that the expert is a person who have some qualifications and experience in comparing the signatures and to suggest about the quality of such disputed signature. As far as this case is concerned, the hand writing expert was examined as DW2 and she gave her evidence by stating her qualification and experience in this field. In the report filed by her in Ex.X5 and the photographs Ex.X4, the hand writing expert has given a negative report regarding the signature found in Ex.A1. It has been categorically laid down that the signature found in Ex.A1 was not belonging to the person who signed in the admitted document. If the opinion of hand writing expert is accepted, this Court has to reject the evidence of PWs about the execution of Ex.A1 promissory note. In case, the expert opinion is not reliable, it cannot be said that the evidence of PWs would prove the promissory note despite they are close relatives of the plaintiff. For ascertaining the veracity of PWs and the report of the hand writing expert produced in Ex.X5, I could see that the signature found in Ex.A1 promissory note was not similar to the signatures put by the defendant in the admitted documents produced before hand writing experts. This Court has also got power to compare the signatures with the admitted signatures produced before the hand writing expert. As per the power given under Section 45 of the Evidence Act, this Court has compared and found that there is a lot of difference in between the signature found in Ex.A1 and other signatures put forth by the defendant. Even the magnified photograph produced in Ex.X4 would also go to show the shivering of the writer in putting the signature and the pictorial appearance of the signature found in Ex.A1 was not seen in the admitted signature. Therefore, the burden is again shifted to the plaintiff from the side of the defendant since they proved that the signature found in Ex.A1 was not belonging to the defendant.
24. When the expert opinion is unassailable, the evidence of PWs to the effect that the defendant had received Rs.45,000/- and put his signature would have been spoken by PW2 and PW3 since they are relatives to the plaintiffs. The relationship of PW2 and PW3 with the plaintiff has not been disputed. Even they are uninterested witnesses, their evidence cannot be trusted for a moment, since they have spoken contradictorily in their evidence by stating that the plaintiff had disbursed a sum of Rs.45,000/- to the defendant by giving separate currency notes of Rs.100/-. Per contra, the evidence of PW1, the plaintiff would be that he had given Rs.45,000/- in one bundle. This important evidence regarding payment of money itself was not promptly spoken by the witnesses of the plaintiff.
25. The 1st appellate court had thus relied upon the expert opinion and report and had found that the evidence of PWs cannot be relied upon since they are interested witnesses. In the event, the evidence of PWs have not been acceptable, the proof of Ex.A1 would not come into picture. A judgment of this Court reported in 2002 (2) MLJ 715 (K.Sethurathinam v. Subramanian) was relied upon by the learned counsel for the defendant which would run as follows:-
"7. Therefore, it is well settled that the burden initially rests on the plaintiff to prove the\at the promissory note was executed by the defendant. Then only the plaintiff is entitled for presumption as against the defendant, as provided under Sec.118(a) of the Negotiable Instruments Act."
26. In the said judgment, it has been categorically laid down that unless the proof of promissory note has been shown to Court, the presumption under Section 118 of the Negotiable Instruments Act cannot be drawn. When we apply this principle to the present case, we could see that the proof of a suit promissory note was not satisfactorily done through the evidence of the plaintiff. Therefore, the presumption under Section 118 of Negotiable Instruments Act cannot be applied to the present case. When the suit promissory note itself was not proved are presumption under Section 118 of Negotiable Instruments Act has not been taken, I could see that the plaintiff has miserably failed to prove his case. The 1st appellate court had also come to the conclusion that the plaintiff did not prove his case and therefore, the presumption would not be drawn. The findings reached by the 1st appellate court that the defendant had rebutted the presumption drawn under Section 118 of Negotiable Instruments Act through the evidence produced by the defendant could be justified.
27. The 1st appellate court had also come to the conclusion that the plaintiff has no wherewithal to pay the said money to advance a sum of Rs.45,000/- to the defendant since he was having only a bunk shop and was having a meagre income. The 1st appellate court had considered the evidence that the suit village was smaller one, having a thin population and the plaintiff was having only a bunk shop for his income and therefore, such a huge amount could not be paid by the plaintiff towards the suit promissory note as per his case. Similarly, it has also come to the conclusion that the defendant was already a richman which could be seen from various documents produced by him from Exs.B1 to B25 and therefore, there is no probability that the plaintiff would have lent the money to the defendant as stated in the plaint. On a careful perusal of the evidence adduced by PW1, I could understand that PW1 was earning a meagre income to gather money for payment towards suit promissory note. However, the plaintiff has produced exhibits to show as he has brought TV set and other articles from Dubai and he has sold the said articles and collected the money from that and therefore, the capacity to advance money by the plaintiff should have been accepted. The 1st appellate court had considered that there was no nexus proved by the plaintiff towards the collection of money by selling those articles brought from Dubai and therefore, the plaintiffs case cannot be true. I could also concur with the factual finding reached by the 1st appellate court since the evidence produced by the plaintiff would not be sufficient to prove his capacity to lend money on the date of suit promissory note. Therefore, I could see that the questions of law framed in this appeal are necessarily to be decided against the appellant/plaintiff.
28. For the foregoing discussion held above, I am of the considered view that the 1st appellate Court was right in coming to the conclusion of reversing the judgment of the trial court and there is no possibility of interfering with the said factual finding reached by the 1st appellate court which is not perverse or biased. Accordingly, the second appeal is liable to be dismissed and the judgment and decree passed by the 1st appellate court are confirmed.
29. In fine, the second appeal filed by the plaintiff is dismissed with costs and the judgment and decree passed by the 1st appellate court are confirmed.
ssn To
1. The Principal District Judge, Cuddalore District.
2. The Principal Sub-Judge, Vridhachalam