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Judgment
Thomas P. Joseph, J.—Heard. Admit. The following substantial questions of law are framed for a decision:
(i) In a suit based on promissory note where the execution of the pronote including the signature is denied by the defendant whether any burden is cast upon the defendant to disprove the execution of the pronote until the plaintiff satisfactorily proved execution of the pronote including the signature?
(ii) Whether the dismissal of I.A. No. 1423 of 2008 is sustainable in law?
This Second Appeal arises from the concurrent finding entered by the courts below as to the (alleged) execution of Ext. A1, demand promissory note dated 25.12.2004.
Respondent filed O.S. No. 533 of 2006 in the court of learned Munsiff, Karunagappally for a decree for recovery of money alleging that the appellant executed Ext. A1, promissory note receiving a consideration of Rs. 1,00,000/- and undertaking to repay the same with interest on demand. Respondent issued notice on 20.03.2006 demanding repayment of the amount but the amount was not repaid. Hence the suit.
Appellant denied the transaction and execution of Ext. A1. He claimed that Ext. A1 is a forged document. Himself and husband of the respondent had money transaction and on 10.06.2005, husband of the respondent borrowed Rs. 50,000/- from him. Husband of the respondent was paying interest to the appellant. On 14.12.2005 husband of the respondent passed away. Appellant asked the respondent to repay the amount. In that situation respondent fabricated a document like Ext. A1 and filed the suit.
Respondent gave evidence as P.W1 and examined P.W.2, who claimed to be an attestor in Ext. A1. Both gave evidence that appellant received Rs. 1,00,000/- from the respondent-P.W1 and executed Ext. A1, promissory note. Contra evidence was given by the appellant as D.W.1. After the examination of P.W.1 was over, appellant filed I.A. No. 1423 of 2008 to send Ext. A1, for expert opinion. That application was dismissed by the trial court.
The trial court was impressed by the evidence of P.Ws.1 and 2, referred to some (alleged) variation in the signature of the appellant in his written statement, vakalath and other proceedings filed in the court, was of the view that appellant has no consistency in signing and accordingly the suit was decreed which the first appellate court confirmed.
The learned counsel for the appellant contends that when due execution of Ext. A1 is denied by the appellant it was obligatory for the respondent to prove the due execution of Ext. A1 and passing of consideration. According to the learned counsel the trial court was not correct in making an observation that there is variance in the signature of the appellant in the written statement, vakalath, etc. It is contended that a perusal of the written statement and vakalath would show that there is no such variance. It is also pointed out by the learned counsel that even the acknowledgment card signed by the appellant (for receipt of notice dated 20.03.2006) which was in the possession of the respondent was not produced on the spacious explanation that the counsel had advised the respondent that it was not necessary to produce that document. It is further contended that at least the first appellate court ought to have allowed I.A. No. 1423 of 2008.
The learned counsel for the respondent contended that burden of due execution of Ext. A1 is discharged by the respondent by examining herself as P.W.1 and examining P.W.2, the witness. The learned counsel submits that the appellant has not produced any authoritative document containing his admitted signature during the period of Ext. A1 to show that the signature in Ext. A1 is not that of the appellant. In the circumstances the courts below were required to decide the case on the evidence on record and in that view of the matter the decision is correct and no substantial question of law is involved.
There could be no doubt that since the due execution of Ext. A1 is denied by the appellant, burden is on the respondent to prove the same. No doubt, respondent gave evidence as P.W.1 and examined P.W.2 a witness to Ext. A1. Examining a witness to a document is certainly one of the modes of proving due execution. But here is a case where, though a bit later, appellant wanted Ext. A1 to be examined by an Expert and filed I.A. No. 1423 of 2008. Getting the opinion of the Expert was a manner in which appellant could prove his case. That application was dismissed by the trial court as belated. Appellant thus lost the opportunity of getting expert opinion on the disputed signature in Ext. A1. The first appellate court also did not think it necessary to consider the request made by the appellant vide I.A. No. 1423 of 2008.
It is pointed out by the learned counsel that the courts below have relied on a suggestive question put to P.W.1 on behalf of the appellant that the disputed document was created on a signed blank stamp paper. It is contended by the learned counsel that the stray suggestion made in the course of examination could not have been taken as the stand of the appellant when in the written statement he has positively denied execution of Ext. A1.
Having regard to the various facts and circumstances of the case I am inclined to think that the appellant ought to have been given an opportunity to get Ext. A1 examined by an Expert with the admitted/specimen signature of the appellant. Examination of the disputed document by the Expert would have been helpful for the courts below in resolving the dispute regarding due execution of Ext. A1.
But I find that notwithstanding the case set up by the respondent in the plaint filed in the year, 2006 and written statement filed by the appellant sufficiently early he did not take necessary steps to get Ext. A1 examined by an Expert at the appropriate time. Instead at least until examination of P.W.1 was over, he waited. I must also bear in mind difficulties of the respondent who claims to have advanced Rs. 1,00,000/- sometime in the year 2004 and filed the suit in the year 2006 and still she is not able to get a final verdict in the matter. In the circumstances I am of the view that appellant must be asked to furnish sufficient security for the plaint claim.
Substantial questions of law framed are answered as above.
Second Appeal is allowed by way of remand as under:
(i) The judgment and decree in A.S. No. 331 of 2008 of the court of learned Additional District Judge, Kollam and of the learned Munsiff, Karunagappally in O.S. No. 533 of 2006 are set aside.
(ii) O.S. No. 533 of 2006 is remitted to the court of learned Munsiff, Karunagappally for fresh decision on condition that appellant deposits Rs. 25,000/- (Rupees Twenty five thousand only) in the trial court and furnishes security for the balance amount due as per the plaint to the satisfaction of the learned Munsiff within two months from this day.
(iii) In case appellant deposits the amount, the same can be deposited in a Nationalized Bank in the name of the court for appropriate period.
(iv) In case appellant commits default in complying with condition mentioned in clause (ii) above, this appeal will stand dismissed in confirmation of the judgment and decree of the courts below.
(v) In case of compliance of the said condition and matter stands remitted, I.A. No. 1423 of 2008 will stand allowed. The Trial court shall thereon send Ext. A1 to an Expert as may be decided by the trail court for his opinion along with the admitted/specimen signature of the appellant.
(vi) It is open to the trial court to direct the appellant to produce authoritative documents of the same period as of Ext. A1 and if that is not available, of the period nearest to that.
(vii) In case the suit stands remanded, trial court shall give sufficient opportunity to the parties to adduce further evidence, if any.
(viii) In case the suit stands remanded, appellant will get the benefit of refund of court fee paid as provided under law.
Parties shall appear in the court of learned Munsiff, Karunagappally on 24.09.2012.
All pending Interlocutory Applications will stand dismissed.