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TMI Blog2020 (9) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notice dated 18/08/2004 demanding the money back with interest. The defendant failed to pay the money inspite of the demand. Hence the suit for recovery of money with interest. 3. The defendant case is that, the alleged pro-note is a forged document. He never borrowed Rs.50,000/- from the plaintiff either on or after or before 10/02/2002. He never executed pro-note for the said imaginary borrowing. In fact the plaintiff's husband Kombaiyan borrowed Rs.70,000/- on 25/07/2002 from one Gunasekaran, who is the son-in-law of this defendant. For recovery of that money, suit in O.S.No.1022/2004 was filed and ended in attachment of the plaintiff's house. Hence the instant suit pronote has been fabricated to wreck vengeance. The plaintiff have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff family was brought to auction due to the inability of the plaintiff's husband to clear the decree. This gives strong inference that the plaintiff had no source of money to lend. 8. The main defence taken by the defendant is that the pro-note was not executed by him. The suit is a counter blast to the earlier money suit initiated by his son-in-law against the plaintiff's husband. 9. The plaintiff had discharged her burden of proving the pronote by examining the witness (PW-2) and the scribe (PW-3). In the pro-note Ex.A-1, the signature as well as the thumb impression of the borrower is found. The cross examination by the defendant has not impeached the credential of the plaintiff witnesses. PW-1 denial of knowledge about the signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 12. Section 73 of the Evidence Act permits the Court to compare the signature though rarely, in the absence of initiative from the defendant to call for the experts. The Court to satisfy itself, has to exercise its power under section 73 of the Evidence Act. It is the burden on the person who asserts a fact contrary to the document. In the case under consideration, the plaintiff has placed the pro-note and the witnesses before the Court to prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant. 14. In Chelladurai vs Velmurugan reported in 2014 (4) CTC 606, this Court on an identical facts held that, "The respondent herein/plaintiff, who filed the suit based on Ex.A1 promissory note, has let in sufficient evidence through himself as PW1 and another person as PW2 in proof of its execution of Ex.A1 and passing of consideration. Both of them have also identified the signatures found therein and also the thumb impression found therein to be that of the appellant herein/defendant. Even in the absence of comparison, the said evidence would have been enough to arrive at a conclusion that the execution of Ex.A1 promis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er assessment of the value of the total evidence." 16. Hence this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act, and find no error in Appellate Courts judgment. 17. In so far as the money dispute between two other parties namely the husband of the plaintiff and son-in-law of the defendant arising from a different transaction, they are not a relevant fact in this case. The learned counsel for the appellant submitted that at the relevant point of time the husband of the plaintiff was indebted to the son-in-law of the appellant. He allowed his property to go for auction sale. Therefore, the Court should infer that the plaintiff had no wherewithal to lend loan. This uncorroborated statement of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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