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TMI Blog2013 (11) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... f Advocate-commissioner to take possession of the original Minutes Book of the Board of Directors of the appellant company and deliver the same to the Forensic Department of the State of Tamil Nadu and secure a report, to find out whether or not the last three lines at page 87 and last two lines of page 93 of the Minutes Book purporting to be minutes of the Board Meeting of the applicant company held on 30.03.2005 and 23.05.2005 respectively were interpolated or fudged or forged or backdated. 3. The petitioner/D1 has averred in the affidavit that the said suit was filed, seeking specific performance of contract, based on an agreement, dated 10.01.2004 entered into between the first respondent/plaintiff on the one hand and respondents 2 and 3 on the other hand to sell certain properties of Dhanalakshmi Mills Ltd. The petitioner/D1 has stated that the petitioner/D1 was not a party to the alleged agreement, dated 10.01.2004, however, the first respondent/plaintiff has sought the relief, based on plaint document No. 4, purported to be a resolution passed by the Board of Directors of the applicant company on 30.03.2005, allegedly ratifying the said agreement of sale, dated 10.01.2004, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner herein. However, as stated above, in the Minutes Book at Page Nos. 87 and 93, interpolations were made, as if resolutions were passed on 30.03.2005 and 25.03.2005 respectively and the same were incorporated in the Minutes Book of the company. With the above averments, the petitioner/first defendant, filed the Interlocutory Application to seek appointment of Advocate-commissioner under Order 26 Rules 10A and 10B, seeking the relief as stated in the Application. 8. Mr. A.R.L. Sundaresan, learned Senior counsel appearing for the first respondent/plaintiff submitted that the petitioner, became a sick company and was referred to Board of Industrial and Financial Reconstruction (BIFR) in Case No. 105 of 1993. Hence, the company was in need of funds to revive its function again. The respondents 2 and 3 had come forward to invest money in the petitioner-company, as strategic investors, pay off the liabilities and take over the company with all its assets, including the land, which is the subject matter of the suit. In this regard, the respondents 2 and 3 entered into an agreement of sale, dated 10.01.2004 with the first respondent to make substantial advance amount and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thiru. C.R. Sethuramalingam, other 5 Directors have not raised any such allegation of interpolation or forgery in the Minutes Book. In the accompanying affidavit, the deponent has simply stated that he is the Managing Director of the company, however, in the Minutes Book, he was stated himself only as one of the six Directors. The copy of the agreement has not been produced by the petitioner, though he has stated himself as Managing Director of the company. 13. As per the findings of the Court below by the impugned order, admittedly the disputed portion of the Minutes Book was also written by the same person using the same ink and there is no change in the handwriting and therefore, there could be no possibility of interpolation. It is not clearly stated in the affidavit filed by C.R. Sethuramalingam, who has preferred this Revision, on behalf of the company, as to why the other Directors have not supported his claim of interpolation in the Minutes of the meeting. 14. Admittedly, there is no allegation of forged signatures in the minutes raised by the petitioner herein and the hand writing of the Minutes is also admittedly by the same person, who wrote the earlier portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in 2003-3-LW 649, this Court (M. Chockalingam, J.), has held that merely because of the reason that the trial Court has compared the admitted signature and the disputed signature, invoking Section 73 of the Evidence Act, there is no bar or ban for the first appellate Court sending the documents for canvassing the expert's opinion. Even if there is any delay, which could not be a reason to dismiss the petition and the Court can award reasonable cost to the other side, if there is delay caused by the person seeking the relief. 19. In Chinnasamy, N. v. P.S. Swaminathan, reported in 2006 (4) CTC 850, this Court (S. Rajeswaran, J.), held that when the defendant disputes the signature in document relied on by plaintiff, it is for plaintiff to take steps for examination of disputed signature by sending the document along with the documents containing the admitted signature of the party, whose signature is said to be available in the disputed document, to handwriting expert. The defendant therein filed written statement disputing signature in agreement, however, five years thereafter filed application seeking an order to send document for comparison by expert with the admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly in the minutes book, where he has signed only as one of the Directors of the company. He has not been stated himself as Managing Directors but only as Director. Similarly, there is no dispute with regard to the handwritings available in the minutes book. 23. Learned counsel appearing for the petitioner has not disputed the fact that the alleged subsequent entry was made by the very same person, who wrote the alleged earlier portion of the minute and therefore, it is crystal clear that neither the signature nor the handwriting has to be compared by any expert. The original minute was not produced by the petitioner, as contended by the learned Senior counsel appearing for the first respondent for the reasons best known to the petitioner. 24. It is also not in dispute that the other Directors signed in the minutes book have not disputed the entries available in the minutes, saying that the same were made subsequently without their knowledge. On the facts and circumstances, it was argued by the learned Senior counsel that the petition filed by the revision petitioner herein itself is not legally maintainable and therefore, that was rightly dismissed. The decisions referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the date of the execution of the document and use of the same effectively on a particular date for the first time would not resolve any controversy, but it would create only confusion. 29. In the instant case, according to the petitioner, the proceedings of the meeting was recorded in the minutes and the same was signed by six Directors, however, by using the same handwriting and ink, the alleged interpolation was made. Even if the said allegation is true, as the ink is same, the age of the ink cannot be decided by any expert, as the ink used for the alleged interpolation is the same. As decided by this Court and Punjab and Haryana Court in the decisions referred to above, seeking such a relief to find out the age of the ink would create only confusion and cause unreasonable delay. 30. It cannot be disputed that the Court has power to seek expert opinion, however, it has to be decided judiciously, to meet the ends of justice, under Order 26 Rule 10A CPC. In this case, there is no allegation of any forged signature being made. Even the handwriting is not in dispute and it is settled that the age of the ink cannot be verified, when the same ink has been used. 31. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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