2020 (9) TMI 1260 - HC - Indian Laws

Suit for recovery of money with interest - Allegation is that the suit pronote has been fabricated to wreck vengeance - main defence taken by the defendant is that the pro-note was not executed by him - HELD THAT - The subject matter of the suit is Ex.A- 1 pro-note. The lender and the witness to the Pro-note had deposed their presence during the execution of the pro-note by Ex.A-1. No contra evidence to dislodge the case of the plaintiff adduced by the defendant - Relatives witnessing the pro-note transaction, is not a circumstances to draw suspicion. In addition to the witness to the execution, the scribe PW-3 also examined by the plaintiff and he has deposed that he saw the defendant affixing his signature and thumb impression. The defendant who denies the signature and thumb impression, not taken any steps to refer the disputed signature and thumb impression for comparison by experts. The Courts below pointing out this, had compared the disputed signature with the admitted signature found in the vakalat and summon and found to be from same person. Ex.A-1 being a negotiable instrument, the special rules of evidence under chapter XIII of the Negotiable Instruments Act is applicable. Under section 118 of the Negotiable Instruments Act, until the contrary is proved, the presumption of consideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution - In this case, the plaintiff had satisfactorily proved the execution through PW-2 and PW-3. Thus the burden has shifted to the defendant to prove the contrary. He has not taken any steps to positively prove the contrary. In the said circumstances, the Courts below after recording the reason for invoking section 73 of the Evidence Act had proceeded to arrive at a conclusion. The defendant though had pleaded that the pro-note was not executed by him, he has not placed any acceptable proof to disbelieve the ocular evidence of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant - this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act. This Court finds that the final Court of facts had held the plaintiff has proved the execution of the pro-note by the defendant and the said debt still un discharged - there are no substantial question of law for interfering the concurrent finding of the Courts below - appeal dismissed.

Summary

Issues:
1. Dispute over a promissory note and recovery of money.
2. Allegation of forged document and lack of borrowing by the defendant.
3. Evaluation of evidence regarding the execution of the promissory note.
4. Comparison of signatures and thumb impression on the promissory note.
5. Application of legal provisions under Negotiable Instruments Act and Evidence Act.
6. Burden of proof on the plaintiff and shifting of burden to the defendant.
7. Use of expert comparison for disputed signatures.
8. Relevance of financial disputes between other parties.

Detailed Analysis:

1. The plaintiff claimed that the defendant borrowed Rs.50,000 and executed a promissory note, demanding repayment with interest. The defendant denied the borrowing and alleged the promissory note was forged to retaliate against a money suit filed by his son-in-law against the plaintiff's husband.

2. The Trial Court found the execution of the promissory note proven based on witness testimonies and documentary evidence. The Appellate Court confirmed this decision by comparing signatures, leading to the second appeal.

3. The plaintiff presented witnesses and documents to establish the promissory note's execution. The defendant failed to disprove the evidence or provide expert opinion to challenge the signatures.

4. Legal provisions under the Negotiable Instruments Act and Evidence Act were applied. The burden of proof initially rested on the plaintiff, who successfully shifted it to the defendant by proving execution. The defendant's failure to provide compelling evidence led to the Courts invoking section 73 of the Evidence Act for signature comparison.

5. The Courts emphasized the importance of expert comparison for disputed signatures but noted the defendant's lack of action in this regard. Precedents highlighted the significance of direct comparison under section 73 of the Evidence Act for assessing evidence validity.

6. Financial disputes between other parties were deemed irrelevant to the promissory note case, as they did not impact the plaintiff's capacity to lend. The defendant's unproven assertions regarding the plaintiff's financial situation were dismissed for lack of evidence.

7. Ultimately, the Court upheld the lower courts' decisions, affirming the plaintiff's proof of the promissory note's execution and the outstanding debt. No substantial legal questions warranted interference with the concurrent findings, leading to the dismissal of the second appeal.

8. The judgment concluded by dismissing the second appeal and closing the connected civil miscellaneous petition, emphasizing the thorough evaluation of evidence and legal principles in reaching the decision.