Madras High Court
Pattabirama Reddiar And Anr. vs Navaneetha Sundaram on 8 February, 2006
Author: K. Mohan Ram
Bench: K. Mohan Ram
ORDER K. Mohan Ram, J.
1. The defendants in O.S. No. 314 of 1990 on the file of the Sub-Court, Cuddalore are the appellants in the above appeal.
2. For the sake of convenience, the parties are referred to as per their ranking in the suit.
3. The brief facts of the case are as follows:
The plaintiff considering his relationship and friendship gave a sum of Rs. 10,000 on 8.6.1988 and another sum of Rs. 10,000 on 25.6.1988 to the defendants for the marriage of their son. The plaintiff did not get any receipt or promissory note from the defendants. Again on 10.5.1989, the first defendant received a sum of Rs. 4,000 from the plaintiff by a cheque for his family expenses. The plaintiff is maintaining accounts regularly for the past fifteen years. The payments made to the defendants are entered into his accounts books. The payments made by the defendants are known to Mr. Desikan, a known friend of the plaintiff and the defendants, inspite of repeated demands, the defendants failed to pay the amount, hence the suit.
4. The first defendant filed a written statement which was adopted by the second defendant which reads as follows:
The defendants are not related to the plaintiff. It is absolutely false to state that the defendants borrowed Rs. 10,000 on 8.6.1988 and another sum of Rs. 10,000 on 25.6.1988 for their son's marriage. There is no necessity to borrow any amount. In fact, the first defendant had advanced monies to third parties including Mr. Desikan, the person mentioned in the plaint. The first defendant denied the averment that he received the cheque for Rs. 4,000 dated 10.5.1989. The plaintiff colluded with Desikan, hatched up a plan and the plaintiff has made the false claim with an intention to harass the defendants. The plaintiff is not entitled to claim 18% interest. The plaintiff should have concocted the documents with the help of Desikan.
5. On the above said pleadings, the Trial Court framed the following issues, viz.:
(i) Whether the suit claim is true ?
(ii) Whether the plaintiff is entitled for the suit claimed ?
(iii) To what other reliefs the plaintiff is entitled to ?
6. During trial, the plaintiff examined himself as P.W.1 and examined Desikan as P.W.2 and marked Exs.A-1 to A-27. The first defendant was examined as D.W. 1 and no documents were marked. On a consideration of the oral and documentary evidence adduced in the case, the Trial Court decreed the suit for a sum of Rs. 24,000 and awarded 6% interest from the date of suit till the date of realisation. Aggrieved by that, the defendants have filed the above appeal.
7. I heard Mr. R. Vasudevan, learned Counsel appearing for the appellants and Mr. R. Saseetharan, learned Counsel appearing for the respondent.
8. The learned Counsel for the appellants submitted that if really the plaintiff had advanced monies to the defendants, he would have obtained a promissory note from them or some other document evidencing the loan and without obtaining any such document the plaintiff would not have advanced monies to the defendant. The first defendant had denied his signature in Ex.A-8 cheque but the plaintiff has not proved that the signature in Ex.A-1 is that of the first defendant. But the Trial Court erred in comparing the signature in Ex.A-8' with the signatures in the vakalath and written statement, in the absence of any expert opinion. Except entries in Ex.A-1 account book, no other documentary evidence is produced by the plaintiff. Because of the enmity between P.W.2 and defendants his evidence should not have been accepted. When there was outstanding to an extent of Rs. 20,000, the plaintiff would not have advanced or given a further loan of Rs. 4,000. On these submissions, the learned Counsel for the appellant sought for setting aside the Trial Court's judgment.
9. Per contra the learned Counsel for the respondent submitted that Ex. A-1 Account Book, being a document kept in the course or regular business of the plaintiff is reliable and admissible in evidence. The genuineness of Ex.A-1 has not been questioned by the defendants either in the reply notice or in the written statement and as such the entries contained in Ex.A-1 in respect of the loans advanced to the defendants should be accepted as true and it has been duly accepted by the Trial Court and the reasonings of the Trial Court are sound in law and does not warrant any interference. The learned Counsel submitted that the Trial Court is right in comparing the signature in Ex.A-8 with the signature in the Vakalath and written statement. D.W. 1 in his cross-examination has stated that he does not know whether the plaintiff is writing the daily accounts or not, but he has not stated that the plaintiff was not maintaining his accounts. Hence, there is no reason to disbelieve the genuineness of Ex.A-1 accounts.
10. First I will take up the validity of the procedure adopted by the Trial Court in comparing the signature round in Ex.A-8 with the signature in the vakalat and written statement tiled by the first defendant. Various High Courts including our High Court have held that dispute about the genuineness of handwriting should not be decided by Court, merely on the basis of personal comparison. Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate, to base his findings with regard to the identity of a handwriting which forms the main controversy between the parties on the basis of personal comparison.
11. In this case, nothing prevented the plaintiff from getting an expert opinion regarding the signature contained in Ex.A-8, it is not explained as to why he had not adopted that course further as laid down in, Marappa Gounder v. Kandasamy 2003 (1) CLJ 637, by our High Court, "the comparison of the documents must be made only with the admitted signature that too, in the documents, which have come into existence prior to the filing of the suit". In this case, admittedly the signatures of the first defendant found in the vakalath and in written statement have been compared with the signature in Ex.A-8.
12. Therefore the procedure adopted by the Trial Court is not correct. The Trial Court has failed to take into consideration one very important aspect. A perusal of Ex.A-8 Cheque, shows that it has been issued to one R. Pattabi Reddiar and on the back of Ex.A-8, one Pattabi Reddiar has signed. Admittedly, the name of the first defendant is R. Pattabirama Reddiar and not Pattabi Reddiar. Therefore, the cheque should contain only the name of R. Pattabirama Reddiar and not Pattabi Reddiar, if really the cheque was issued by the plaintiff to the first defendant. The first defendant has denied his signature in Ex.A-8. If the cheque had been issued in the name of R. Pattabirama Reddiar and the cheque had been presented for collection by him by putting the signature as Pattabi Reddiar, the Bank would not have paid, the money to the bearer of the cheque. There is absolutely no evidence in the case explaining this discrepancy. On this short ground, the Trial Court should not have accepted the case of the plaintiff that he advanced a sum of Rs. 4,000 as loan to the first defendant in Ex.A-8. Further, a perusal of Ex.A-4 entry in Ex.A-1 shows that, it could not have been made during the regular course of maintaining Ex.A-1. The reason being that the entry "Krishnapurm Reddiar by cheque" is written in very small letters that too, not on the line but just below the line and the amount Rs. 4,000 is not also on the line, whereas other entries are on the line. This raises a doubt regarding the genuineness or this entry. On this aspect, P.W. 1 has been questioned and he has not properly explained as to why these entries were written in a cramped manner. Similarly, Ex.A-9 entry in Ex.A-1 also has been 'written in the same manner as Ex.A-4 entry. P.W. 1 has been cross-examined on this aspect and P.W.I has not come out with acceptable explanation. It is not explained as to why this entry has been made below the line and the amount of Rs. 4,000 is also not written on the line, when other entries have been made on the line. This also raises a doubt regarding the case of the plaintiff that he advanced a sum of Rs. 4,000 to the first defendant under Ex.A-8 cheque. For the above said reasons, I am unable to agree with the reasoning of the Trial Court and accordingly the finding regarding Ex.A-8 cheque is set aside and I hold that the first defendant had not borrowed a sum of Rs. 4,000 from the plaintiff as claimed by the plaintiff.
12. Now I have to consider whether the plaintiff has proved his case in respect of Rs. 20,000 said to have been given by him as hand loan to the defendants. The plaintiff has examined himself as P.W.1 and he has examined Desikan as P.W.2 and he has marked Ex.A-1 Account Book maintained by him and the entries relating to the payment made to the defendant have been marked as Exs.A-2 and A-3 and some other entries in the account book have also been marked to prove his case. The plaintiff has stated in Ex.A-6 notice that the plaintiff is maintaining regular accounts for the past fifteen years and the payments made to the defendants have been entered in his account book. Though the defendants have sent a reply they have not disputed this tact and they have not called upon the plaintiff to furnish a copy of the account book.
13. In the plaint also, the plaintiff has stated that he is maintaining regularly account books for the past fifteen years and along with the plaint he has produced the account books. But curiously, the defendants have not questioned the genuineness of the account book in the written statement. When the account books have been filed along with the plaint and specific averments have been made in the plaint the defendants have not chosen to dispute the genuineness of the account books maintained by the plaintiff. That is a strong circumstance to hold that Ex.A-1 account book supports the case of the plaintiff that, he borrowed a sum of Rs. 5,000 from one Bhuma and advanced the loan to the first defendant on 8.6.1988. Ex.A-3 entry shows that he borrowed a sum of Rs. 10,000 from one Kolipakkam Gopalakrishnan and he advanced Rs. 10,000 as loan to the first defendant. P.W.1 has spoken to in his oral evidence about the said loan transaction and nothing has been elicited in his cross-examination to discredit his evidence. P.W.2, a retired Head Master who was admittedly the friend of the first defendant has deposed that he was a witness to the payment of Rs. 20,000 in two instalments to the first defendant. He has deposed that the money was paid at the house of the defendants by the plaintiff. The first defendant has deposed in his evidence that there is no enmity between him and the plaintiff. The defence taken by the defendants is that P.W.2 used to borrow money from the first defendant and repay and because the first defendant refused to advance further monies to P.W.2, there was enmity between him and P.W.2. Admittedly P.W.2 is a retired Head Master and it is highly doubtful, whether a retired Head Master would have become inimical towards the first defendant simply because he refused to advance a loan. The further case of the defendants is that because of the enmity between them and P.W.2, P.W.2 and the plaintiff have hatched a plan to harass the defendants and in furtherance to that the suit has been filed. This defence seems to be far-fetched. When admittedly there was no enmity between the first defendant and the plaintiff, there is absolutely no reason for the plaintiff to file a false suit against the defendants. Simply because, the first defendant has claimed that he was also lending money to others and there was no necessity for borrowing from the plaintiff, it does not mean that there was no need for him to borrow. He has admitted in his evidence that he has pledged his wife's jewels. This is an indication that he was in need of money.
14. In the judgment K. Saroja v. Pandian 1988 (1) LW 48, the Division Bench of this Court has held that, when an account book is proved to have been kept in the regular course of business, it is an additional circumstance which can be taken as a corroborative circumstance, it is pertinent to point out that the marking of Ex.A-1 document through P.W. 1 was not objected to by the defendant, since the account books were written and maintained by the plaintiff himself. P.W.1 has spoken to about the entries contained in Ex.A-1 and no answers have been elicited from him to disbelieve Ex.A-1. As pointed out by me above, it is not the case of the defendants in the written statement that Ex.A-1 account book was created for the purpose of the suit. That being so, Ex.A-1 being an account book kept in the regular course or business, it can be relied upon. The entries Exs.A-2 and A-3 are corroborated by the oral evidence of P.Ws.1 and 2. These aspects have been considered by the Trial Court and the Trial Court has accepted the case as pleaded by the plaintiff. I see no reason to interfere with the same.
15. The contention of the learned Counsel for the appellants that the plaintiff would not have advanced loan to the defendants without obtaining promissory note cannot be accepted. Considering the relationship between the parties, they may advance loan without obtaining promissory note and that conduct cannot be said to be abnormal. The non-examination of Bhuma and Gopalakrishnan was commented upon by the learned Counsel for the appellants. But in the light of the entries Exs.A-2 and A-3 and in view of the finding that Ex.A-1 account book was kept in the reqular course of business and the same has been accepted to be reliable, even the non-examination of Bhuma and Gopalakrishnan will not affect the case of the plaintiff. For all these reasons, the judgment and decree of the Trail Court is confirmed and as far as the first defendant is concerned.
16. The plaintiff as P.W.1 has stated in his deposition that since the second defendant was also present with the first defendant, when the money was paid to first defendant, the suit has been filed against the second defendant also. P.W.2 has also spoken that the money was paid only to the first defendant. When it is not the case of the plaintiff that he advanced money to the second defendant, the suit filed against the second defendant is not maintainable. This aspect of the matter has not been considered by the Trial Court and hence the decree passed against the second defendant is liable to be set aside. Accordingly, the appeal filed by the second defendant is allowed and as far the appeal filed by the first defendant is concerned, it is dismissed. No costs.