Balachandran v. Kutta Guptan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-02-14
Court Decision / Holding: This second appeal is without merits and is accordingly dismissed. There will be no order as to costs.
Final Disposition: Dismissed; no merits; no order as to costs.

Parties to the Case

Appellants / Petitioners

Balachandran

Respondents

Kutta Guptan

Legal Representation & Advocates

Counsels for Petitioners

• Sri M. Ramesh Chander (Senior Advocate)
• Sri T. C. Suresh Menon
• Sri P. S. Appu
• Sri A. R. Nimod

Counsels for Respondents

• Sri Rajesh Sivaramankutty

Case Synopsis & Summary

Balachandran, the defendant in O.S. No. 2/2004 before the Munsiff Court, Ottapalam, appeals against the judgments in AS 26/2007 and OS 2/2004. The suit, based on Ext. A1, alleged that the plaintiff lent Rs. 65,000 and that the defendant failed to repay. The defendant contended Ext. A1 was forged and not executed by him, claiming it was a concocted document signed by an associate. The trial court dismissed the suit on the ground that Ext. A1’s execution had not been proved and that the plaintiff failed to establish the capacity to advance the money. The lower appellate court reversed, holding Ext. A1 proved and decreed repayment, distinguishing the Madappillil Brothers v. Ullattil Agencies decision as not applicable to the facts. The appellant challenged the appellate court’s reasoning, arguing misappreciation of evidence, lack of witnesses to Ext. A1, and denial of execution by the defendant. The respondent argued the signature was proven by expert opinion and that mere transactions between the parties do not undermine Ext. A1. The High Court, applying Section 100 of the CPC, found the findings of the lower appellate court plausible, observed no perversity in the record, and dismissed the second appeal with no cost orders.

Provisions of Law Cited

Section 100 of the Civil Procedure Code (CPC)

Legal Doctrines & Maxims

Burden of proof shifts to the party disputing execution when the defendant denies executing the document; where the signature is disputed, the signer must show under what circumstances he signed.
The court may distinguish or not apply earlier case law based on the facts of the present case (doctrine of distinguishing).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the trial court erred in appreciating the evidence, noting there is no witness to Ext. A1 and no proof that the defendant executed it. He argues the signature on Ext. A1 is disputed and the expert opinion (Ext. A4) does not conclusively establish execution by him. The appellant asserts that even if there were transactions between related parties, the lower appellate court’s reliance on Madappillil Brothers v. Ullattil Agencies is misplaced and that the evidence does not establish a valid loan or the defendant’s liability. The defense maintains that the burden should remain with the plaintiff to prove the transaction, and on a denial of execution, the defendant’s signature cannot be treated as proven without proper corroboration.

Contentions of Respondents

The respondent argues that the signature on Ext. A1 is proven by expert opinion and that the trial court’s misdirection is not sustainable. It is argued that there is no requirement of four witnesses for execution and that the plaintiff sufficiently established the loan and the defendant’s liability through Ext. A1 and accompanying evidence, including the plaintiff’s financial capacity and conduct. The respondent maintains that the lower appellate court properly evaluated the evidence and that the Madappillil Brothers principle has no application to the facts of this case; interference under Section 100 CPC is unwarranted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Madappillil Brothers v. Ullattil Agencies	2006 (4) KLT 196	Distinguished	The High Court held that the principle laid down in the Madappillil Brothers decision can have no application to the facts of the present case, thus distinguishing it.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2014/25TH MAGHA, 1935** ## **RSA.No. 756 of 2013 ()** **----------------------AGAINST THE JUDGMENT & DECREE IN AS 26/2007 OF SUB COURT, OTTAPPALAM AGAINST THE JUDGMENT & DECREE IN OS 2/2004 OF MUNSIFF COURT, OTTAPPALAM** **------------------** ## **APPELLANT/RESPONDENT/DEFENDANT :** **-------------------------------------------------------------** **BALACHANDRAN, AGED 41 YEARS S/O.VALAMKALLINGAL KUTTYKRISHNA GUPTHAN RESIDING AT 'JAYANTHI', PULLUNDASSERY AMSOM AZHIYANNUR DESOM, OTTAPALAM TALUK, PALAKKAD SITRICT.** **BY SENIOR ADVOCATE SRI.M.RAMESH CHANDER BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENT/APPELLANT/PLAINTIFF :** **----------------------------------------------------------** **KUTTA GUPTHAN, AGED 51 YEARS S/O.VALAPPILTHODI APPU GUPTHAN RESIDING AT KADAMPAZHIPPURAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-678633.** ## **BY ADV. SRI.RAJESH SIVARAMANKUTTY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No.756 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of February, 2014 ## **J U D G M E N T** The defendant in O.S.No.2/2004 before the Munsiff Court, Ottapalam who suffered a decree at the hands of the lower appellate court is the appellant. 2. The suit was one for money based on Ext.A1, agreement. According to the plaintiff, the defendant borrowed a sum of 65,000/- executing Ext.A1, document₹ agreeing to repay within a stipulated period. He did not do so. In spite of repeated demands, the amount was not received and therefore, lawyer's notice was issued and since the amount still remain unpaid, the suit was laid. 3. The defendant entered appearance and resisted the suit. He disputed the execution of Ext.A1 agreement and contended that it is a forged document. According to him, he had transaction with the brother of the plaintiff and signed blank papers given to the said person have been ## **R.S.A. No. 756/2013** **-2-** concocted to make out an agreement on the basis of which the suit has been laid. He therefore prayed for dismissal of the suit. 4. Necessary issues were raised and the parties adduced evidence before the trial court. The evidence consist of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A4 on the side of the plaintiff. The defendant had DWs 1 and 2 examined and had Exts. B1 and B2 marked. 5. The lower court formed the opinion that the execution of the document was not proved and also that the plaintiff was not in a position to prove that he had the capacity to advance the amount to the defendant. On the basis of these findings, the suit was dismissed. The plaintiff carried the matter in appeal. 6. The lower appellate court, however, took a different view. The lower appellate court was of the firm view that the reliance placed on by the trial court in the ## **R.S.A. No. 756/2013** **-3-** decision reported in **Madappillil Brothers** v. **Ullattil Agencies [2006 (4) KLT 196]** is misconceived and that the principle laid down in the said decision can have no application to the facts of the case and holding that Ext.A1, agreement has been proved, decreed the suit. 7. Notice has been issued on the following substantial questions of law: “(i) Whether the lower appellate court was correct when it held that the burden is on the defendant to prove the transaction when there was a specific denial of execution of Ext.A1 agreement? (ii) Whether the lower appellate court was correct in granting a decree for return of the amount especially when the transaction between the parties have been failed to prove? (iii) Whether the lower appellate court was correct in decreeing the suit considering the circumstances existed in the facts of the case?” 8. The learned counsel appearing for the appellant contended that there has not been a proper appreciation of the evidence in the case and the lower appellate has ## **R.S.A. No. 756/2013** **-4-** misconceived the evidence. Admittedly, there is no witness to Ext.A1, agreement and there is nothing to show that it was in fact executed by the defendant. It is also contended that even though the amount was due as early as in 2001, the suit was laid long thereafter in 2003. The broad probabilities which have been appreciated by the trial court in dismissing the suit have been overlooked by the lower appellate court and at any rate, according to the learned counsel for the appellant, the view taken by the trial court being a possible view, there was no justification for the lower appellate court to reverse the findings. 9. The learned counsel appearing for the respondent on the other hand pointed out that the trial court had misdirected itself both on facts and in law and had taken into consideration irrelevant matters and has omitted to note the relevant factors. The learned counsel pointed out that the definite stand taken by the defendant was that the signature found on Ext.A1 did not belong to him and that it **R.S.A. No. 756/2013** **-5-** was a concocted document. That was belied by the expert's opinion which shows that the document was in fact executed by him. There is no law which insists that the document should be signed by four witnesses. The lower appellate court appreciated the evidence in the proper perspective and found that the document has been duly proved and granted a decree. The finding that the document is essentially one of fact and since it is not shown that findings are either perverse or contrary to the evidence on record, interference while exercising its jurisdiction under Section 100 of C.P.C. is not warranted. 10. As rightly pointed out by the learned counsel for the respondent, the main contention taken before the trial court was that Ext.A1 document was not executed by the defendant. He disputed the signature on the said document. Ext.A4 is the expert's report which clearly indicates that the signature found on Ext.A1, agreement is that of the defendant. The contention that the signature has been **R.S.A. No. 756/2013** **-6-** forged will not stand. 11. Another factor which impressed the trial court was that the plaintiff being only the owner of a tea shop could not have had so much of amount to lend to the defendant. The trial court has omitted to notice that the wife of the plaintiff is a school teacher. The evidence also shows that the plaintiff had sold some of the trees standing in the property and he had some amount from that also. As rightly noticed by the lower appellate court, the principle laid down in the decision in **Madappillil Brothers's** case (cited supra) may not have any application to the facts of the case. It is true that affixure of signature does not lead to a conclusion that the document has been executed by the person concerned. 12. But there is a difference between a case where the signature is admitted and the execution is denied and whether the signature itself is denied. In the formal case, it may be possible to say that even though the signature is ## **R.S.A. No. 756/2013** **-7-** admitted, execution has not been proved. However, in the later case, when the signature itself is disputed and it is found that the signature is that of the person concerned, the burden shift to the person concerned to show under what circumstances he had signed the document. The lower appellate court was also justified in coming to the conclusion that merely because there were transactions between the defendant and DW2 who is the brother of the plaintiff by itself is not a ground to suspect the genuineness of Ext.A1 document. 13. As also noticed by the lower appellate court, the view taken by the lower court regarding availability of funds with plaintiff is also erroneous. The plaintiff in his evidence has specified how he could raise the amount to pay to the defendant. 14. At any rate, the view taken by the lower appellate court is one based on an appreciation of the evidence in the case and it could not be said that it is either perverse or ## **R.S.A. No. 756/2013** **-8-** contrary to the evidence on record. It is a possible view. If that be so, exercising its jurisdiction under Section 100 of C.P.C., there is no scope for interference with the findings of the lower appellate court. This second appeal is without merits and is accordingly dismissed. There will be no order as to costs. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge