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Judgment
The plaintiff in a suit for money is the appellant. The suit was decreed in part by the trial court. On appeal by the defendant, the learned single judge dismissed the suit in toto.
According to the plaintiff, on 18.01.1990 the defendant borrowed an amount of Rs.55,000/- from him. When the amount was demanded back, the defendant issued Ext A2 cheque for an amount of Rs.68,200/-,including interest. However the cheque was dishonoured on presentment and hence the suit. The defendant denied the transaction as alleged in the plaint. According to him, on 25.08.1987, an amount of Rs.30,000/- was borrowed by him from the plaintiff. As required by the plaintiff, he had given signed blank cheque leaf and a signed blank stamp paper to the plaintiff. On 18.01.1990 there were deliberations between the plaintiff and defendant regarding repayment of the amount. There was dispute regarding the rate of interest. Finally it was agreed that Rs.55,000/- would be paid in full and final settlement of the debt. Thereupon, Ext A1 promissory note dated 18.01.1990 was executed by the defendant in favour of the plaintiff for an amount of Rs.55,000/-. On 3.3.1990, the defendant repaid an amount of Rs.23,000/-to the plaintiff. Thereafter on 19.5.1990 the defendant paid a further amount of Rs.20,000/- as per Ext X2 cheque. The balance amount due was only Rs.12,000/-. However, the plaintiff has misutilised the blank cheque of the defendant which was in his possession and the present suit was filed.
Ext X2 cheque admittedly contain the handwriting of the defendant. The trial court on comparing the handwriting in Ext A2 cheque and Ext X2 cheque, held that they are written by one and the same person. It was held thus:
"I have perused Ext A2 and X2 and compared the handwriting in both these documents and I am of the opinion that writing in Ext A2 and X2 are of one and the same person. In these circumstances and for the above discussion I am of the view that the plaint cheque is not a forged one."
As regards the plea of discharge the trial court found that there is no evidence to prove the payment of Rs.23,000/- by the defendant on 3.3.1990. It was found that an amount of Rs.20,000/- was repaid by the defendant to the plaintiff as per Ext X2 cheque. Accordingly, decree was granted for the balance amount of Rs.48,200/-.
On appeal by the defendant, the learned single judge held against the genuineness of Ext A2 cheque. The learned single judge held thus:
" As per the lower court, the handwriting in Ext A2 and Ext X2 are of one and the same person. According to me, this observation of the lower court is not correct. They are not similar."
Apparently both the trial court as well as the learned single judge were guided by comparison of the handwriting made by the court. We must notice that it has time and again been held that the court is not an expert and it is not safe to enter into a finding on the genuineness of a document by the mere comparison of signature or writing, by court. The learned single judge has held that the plaintiff has not discharged his burden to prove that Ext A2 cheque was filled up and handed over to the plaintiff by the defendant.
Be that as it may, let us consider the defence version of the transaction. The execution of Ext A1 promissory note for Rs.55,000/- is admitted. It is also admitted that Ext A1 was written in the handwriting of the defendant. The genuineness of Ext A1 is admitted. The defence plea, as urged in paragraph 3 of the written statement, is one of partial discharge by payments on two days viz; Rs.23,000/- on 3.3.1990 and Rs.20,000/- on 19.5.1990. According to him, the balance amount due is only Rs.12,000/- Here, it would be appropriate to refer to paragraph 5 of the written statement. It reads thus,
"വ ദ ക പ ത പ മ ണ ത യത മ തൽ 1990 മ ർച മ സ മ ന ത യത വര 55,000 ക 12% ല ശയ അത ന ശശഷ 32,000 ക ട ത യത മ തൽ 1990 രമയ മ സ 19-ആ ത യത വര 12% ല ശയ , അത ന ശശഷ ട ത യത മ തൽ അന" യ ത യത വര 12,000 ക 12% ല ശയ , മ തൽ ഇനത ൽ ബ ക 12,000 യ ക ട വ ന സ ഖ" മ പത രക ട ക ശന ബ ദ"സന യ ട+ള-. അത രക ട ക ൻ പ ത ഒ കവ ആണ.
അത ന ള വ"വഹ ക ണമല3 രത വ ദ ക പ ത യ രട ശമൽ യ രത വ ധ വ"വഹ ക ണവ ഇല3."
As regards the repayment of Rs.23,000/-, there is no evidence. There is no proof of source of money or the passing thereof. Since it is claimed to be a payment is cash, it could have been endorsed on Ext A1. The same has not been done. The trial court after considering the evidence has disbelieved the defence version regarding payment of Rs.23,000/-. However, the payment of Rs.20,000/- on 19.5.1990 is evidenced by Ext X2 cheque. The trial court has upheld the plea of discharge to the said extent. The plaintiff did not challenge the same in appeal. Therefore, even if we go by the case of the defendant, a further amount of Rs.35,000/- is due to the plaintiff. Therefore, even on the defence, the plaintiff is entitled for a decree for Rs.35,000/-. The suit could not have been dismissed in its entirety.
In the result, this appeal is allowed. The impugned decree and judgment is set aside. The plaintiff is granted a decree for realisation of Rs.35,000/- with interest at the rate of 6% per annum from the date of suit till realisation. The plaintiff is entitled to proportionate costs in this appeal.