Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 (CHALLENGING THE JUDGMENT AND DECREE DATED 31.01.2023 IN A.S.NO.206/2019 OF THE THIRD ADDITIONAL DISTRICT COURT, PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 31.10.2019 IN O.S.NO.187/2003 OF THE PRINCIPAL SUB COURT, PALAKKAD) APPELLANT/APPELLANT/DEFENDANT: M.MOHANAN AGED 62 YEARS S/O.MURUKAN KUTTY, AGED 62 YEARS, MUNDAKANDATH VEETTIL, KOTTEKKAD (PO), PALAKKAD, PIN - 678732 BY ADV BINOY VASUDEVAN RESPONDENT/RESPONDENT/PLAINTIFF: ANANDAKRISHNAN AGED 68 YEARS S/O.THEETHUNNI, AGED 68 YEARS, JOB AT PRECOT MILL SPINNING THAZHATHE VEETTIL, VENOLI, PUDUSSERY (PO) PALAKKAD DISTRICT, PIN - 678103 BY ADVS. JACOB SEBASTIAN WINSTON K.V(K/147/2010) ANU JACOB(K/1072/2013) DIVYA R. NAIR(K/1317/2021) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R. RAVI, J.
--------------------------------------- R.S.A.No. 295 of 2023 -------------------------------------- Dated this the 31st day of May, 2023
JUDGMENT
The appeal is filed by the defendant in a suit for money based
on a promissory note. The Trial Court had initially decreed the suit, which ultimately was considered by this Court in RSA No.226/2010. The decree of the Trial Court and the appellate court were set aside, since the same were based on the conduct of the defendant in not sending a reply to the lawyer notice sent on behalf of the plaintiff. This Court remanded the matter for fresh consideration with opportunity to the parties to adduce additional evidence and had also opined that the more appropriate course open to the plaintiff was to get expert opinion on the disputed signature in Ext.A1. After remand, the document was sent for expert's opinion and the expert submitted a report. Thereafter, the suit was again decreed relying on the opinion of the expert and all other attending evidence. The appeal filed by the appellant herein was dismissed confirming the decree of the trial court. It is in the above circumstances that the second appeal has been filed. The main ground put forward by the counsel for the appellant is that the opinion of the expert does not categorically say that the disputed document has been signed by
the defendant. The opinion says “the person who wrote the blue enclosed standard writings and signatures stamped and marked A1 to A7 and S1 to S60 probably also wrote the red enclosed questioned writings and signatures similarly stamped and marked
Q1”. The conclusion is supported by a statement of reasons in the report. In the statement of reasons, it is specifically stated that the questioned item is freely written and the signature does not show any signs suggestive of forgery. It is further stated that standard items supplied for comparison and stated to be written by the defendant consists of specimen writings and signatures in eight sheets of paper obtained on two occasions dated 17.01.2014 and 17.09.2015 marked as S1 to S60. The above signatures were taken 14 years after the date of the promissory note in question. Exhibits A1 to A7 which were documents containing writings and signatures written in the normal course in various documents executed during the years 2003 to 2013 were also compared. It was specifically
found that these standard items were also freely written with natural variation and are found to be consistent among themselves. After comparison, the expert has opined that the questioned item agree with the standards and significant writing characteristics. It is stated that the areas agreed upon are; the nature of execution of the letter “a”, the movement of the writing of letter “o”, the nature of execution of the letter “h”, the nature of commencement and movement of writing the letter “M”, the manner of combination of the letter ‘a’ with the letter ‘n’, the movement of writing the letter ‘n’, the movement of writing the initial curved character in the signature. The movement of writing the terminal characteristics, the nature and extent of underscoring. It is after specifically finding the above aspects that the expert has concluded stating that the person who wrote the blue enclosed standard writings and signatures stamped and marked A1 to A7 and S1 to S60 probably also wrote the red enclosed questioned writings and signatures similarly stamped and marked Q1. The reason for using the word probably is evident from the report, since the expert had on one aspect found that since no standard signatures written in the normal course of business were not supplied for thorough comparison, the nature of commencement of the initial character is not similarly exemplified in the standards supplied for comparison. The above views does not in any manner diminish the importance of the opinion stated by the expert. It is after taking into account the above factors, along with other evidence, including the oral evidence of the expert and the plaintiff, that the court below has concluded that the plaintiff was
entitled to succeed. The counsel for the appellant has raised the following substantial questions of law as;
(a) Whether the courts below were justified in accepting the case of the plaintiff without proving the execution of Ext.A1 promissory note?
(b) Is it not the duty of the plaintiff to discharge the burden of proving Ext.A1 document especially in the light of the binding inter parte judgment in RSA NO.226/2010?
(c) Whether the courts below were justified in decreeing the suit on the basis of surmises and conjectures especially in the light of binding
judgment between the parties in RSA 226/2010?
2. As far as the execution of document is concerned, Ext.A1
has been sufficiently proved to have been executed by the plaintiff on the basis of the evidence on record, including the evidence tendered by the Expert. Since the said burden has been discharged, nothing more remains in the case, even going by the judgment in RSA No.226/2010. Moreover, it is not a case of a decree passed on surmises and conjectures, but on the basis of the evidence and a
conclusion regarding the probability. No substantial questions of law
arise.
3. The counsel for the appellant pointed out that the courts
below were not justified in granting 12% interest at the time of the payment. Having regard to the rates of interest which are now prevailing, I find some justification. It is hence ordered that the
judgment and decree of the court below shall be varied by granting
interest at the rate of 9% per annum instead of 12% per annum. The appeal is dismissed. All pending interlocutory applications are closed. Sd/- T.R.RAVI JUDGE sah