Soman v. Suma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938** **RSA.No. 751 of 2014 ()** **-----------------------** **AS 102/2013 of DISTRICT COURT, PATHANAMTHITTA DATED 04-02-2014 OS 135/2009 of MUSNIFF’S COURT, ADOOR DATED 31-01-2013** **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **SOMAN, AGED 55 YEARS, S/O.NEELAKANTAN, NISHA BHAVANAM, MAROOR MURI, ENADIMANGALAM VILLAGE, ADOOR TALUK.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN** **SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SUNIL KUMAR A.G** **RESPONDENT/RESPONDENT/PLAINTIFF:** **--------------------------------** **S.SUMA, AGED 43 YEARS, D/O.ANANDAVALLY, PLAVELIMANNIL VEEDU, MAROOR MURI, ENADIMANGALAM VILLAGE, ADOOR TALUK, PIN-691 523.** **R1 BY ADV. SRI.D.KISHORE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/30/1/17** ## B. KEMAL PASHA, J ## ================= R.S.A.No.751 of 2014 ================= Dated this the 23[rd] day of January, 2017 ## J U D G M E N T Challenging the concurrent findings entered by the Munsiff’s Court, Adoor in O.S.No.135 of 2009 and that of the District Court, Pathanamthitta in A.S.No.102 of 2013, the defendant in the suit, who was the appellant before the lower appellate court, has come up with this second appeal. 2. The suit is one for money based on a pronote. The case of the plaintiff is that the defendant borrowed an amount of `62,000/- from the plaintiff on 15.05.2007 by executing Exhibit-A1 on demand promissory note. The plaintiff has no case that Exhibit-A1 was executed in the handwriting of the defendant. 3. The case of the plaintiff is that the defendant brought Exhibit-A1 promissory note and affixed his R.S.A.No.751/2014 : 2 : signature in the presence of the plaintiff and witnesses. The defendant contended that there was no occasion for him to borrow any such amount from the plaintiff and that he has never executed ExhibitA1 promissory note. He has specifically denied the signature affixed in the promissory note. According to him, the promissory note is the result of forgery. 4. The trial court disbelieved the versions of the defendant and believed the versions of the plaintiff and decreed the suit. Even though, it was appealed against, the appeal was also not successful. It has come out that before the trial court as well as the lower appellate court, the defendant had attempted to get Exhibit-A1 examined by an Expert in order to show that the signature in Exhibit-A1 was not affixed by the defendant. The defendant had filed I.A.No.681 of 2010, before the Munsiff’s Court, in the suit, for getting the promissory note examined by an Expert to prove that the signature in it was not affixed by R.S.A.No.751/2014 : 3 : the defendant. The Munsiff’s Court dismissed the I.A. on the ground that admitted signatures were not made available by the defendant and he had only supplied his specimen signatures. According to the defendant, he had no such admitted signatures with him and he did not remember anything about the availability of some admitted contemporary signatures. 5. In the course of the appeal before the lower appellate court, he could remember that he had stood as guarantor in a Service Co-operative Bank for a person to obtain a loan for that person. He could obtain a certified photocopy of that document from the Service Co-operative Bank. He produced that document before the lower appellate court along with I.A.No.75 of 2014 in A.S.No.102 of 2013. 6. The lower appellate court, by relying on the decision in Aravindakshan Nair v. Essen Bankers [2007(3) KLT 718] held that the Court could compare R.S.A.No.751/2014 : 4 : the signatures and come to a conclusion. It was further held that when the attempt was belatedly made by the defendant, and the said attempt was not properly made before the trial court, the defendant was not entitled to get the document examined through an Expert at the appellate stage. I.A.No.75 of 2014 was dismissed by the lower appellate court. 7. It is true that from the very beginning, i.e., from the reply notice onwards, the defendant has clamouring with the contention that he had not executed the said pro-note or affixed his signature in the pro-note. He had denied the transactions. The trial court has found fault with the defendant in not revealing true state of affairs. In fact, the trial court has gone wrong in the said aspect. When demand was forwarded, the defendant replied that there was no such transaction and he had no occasion to borrow any amount and to execute any promissory R.S.A.No.751/2014 : 5 : note. 8. In the written statement also specifically the defendant denied the execution of the promissory note and the transaction. When the contentions that the promissory note is an out come of forgery and the signature shown in Exhibit-A1 was not affixed by the defendant were taken from the very beginning, the appellate court was too hyper technical and harsh in dismissing the I.A.No.75 of 2014. It seems that the trial court as well as the lower appellate court have not made any attempt to compare the signature shown in Exhibit-A1 with the admitted signatures of the defendant. 9. Exhibit-A4 is the postal acknowledgment card admittedly signed by the defendant. He has filed written statement, in which his signatures are there. He has filed vakalath, in which also his signature is there. He had received summons, which also shows his signature. The trial court could have R.S.A.No.751/2014 : 6 : made use of those signatures as admitted signatures of the defendant and the trial court could have compared the signature shown in Exhibit-A1 with those admitted signatures. Such an exercise has not been made by the trial court. 10. Similar is the case with the appellate court also. Even though the appellate court had dismissed I.A.No.75 of 2014, by relying on the decision in Aravindakshan Nair v. Essen Bankers [2007(3) KLT 718] by holding that the court could very well compare the signatures, no such exercise was done by the lower appellate court also. When a document was made available by the defendant before the lower appellate court to show his admitted contemporary signature, the lower appellate court was harsh in dismissing I.A.No.75 of 2014. 11. On a perusal of the admitted signatures in Exhibit-A4, the vakalath, the written statement etc., it seems that there is an ocean of difference between R.S.A.No.751/2014 : 7 : these signatures with the signature shown in ExhibitA1. Whatever it is, when an Expert can very well say with regard to the genuineness of such signatures, the lower appellate court ought to have allowed I.A.No.75 of 2014 to enable the defendant to get an expert opinion. 12. The defendant has preferred the appeal before the lower appellate court. He has further preferred the second appeal by paying court fee. Over and above it, after the decree, he has deposited the entire decree amount before the trial court. In such circumstances, it is just and expedient in the interest of justice to give an opportunity to the defendant to get the signature in Exhibit-A1 examined by an Expert and to get an opinion. In case, any expert opinion cannot be obtained, the lower appellate court shall compare the signature shown in Exhibit-A1 with other admitted signatures in Exhibit-A4, the vakalath, the written statement, R.S.A.No.751/2014 : 8 : the deposition of the defendant, summons, the document produced along with I.A.No.75 of 2014 etc., and shall come to a conclusion. Matters being so, the judgment and decree passed by the lower appellate court are liable to be set aside. In the result, this second appeal is allowed and the judgment and decree passed by the lower appellate court are set aside. The appeal is remitted to the lower appellate court for fresh disposal in accordance with law. The lower appellate court shall send Exhibit-A1 for comparison by an Expert, at the expense of the appellant. The lower appellate court shall make use of Exhibit-A4 as well as the signatures in the written statement of the defendant, the signature in the vakalath, the signature in the summons etc. as admitted signatures along with the signature shown in the document produced along with I.A.No.75 of 2014. In case, any opinion cannot be obtained in the matter due to any technicalities, R.S.A.No.751/2014 : 9 : the lower appellate court shall compare such signatures and shall form an opinion, based on the decisions in O.Bharathan v. K.Sudhakaran & Another [1996 (1) KLT 466 (SC)] and State (Delhi Administration) v. Pali Ram [AIR 1979 SC 14] followed by this Court in Aravindakshan Nair v. Essen Bankers [2007 (3) KLT 718]. Parties shall appear before the lower appellate court on 14.02.2017. The court fee shall be refunded as per rules. Sd/- B. KEMAL PASHA, JUDGE. DSV/23/1/17 // True Copy // P.A. To Judge