Challenging the judgment and decree passed in A.S.No.31 of 2010 on the file of the Subordinate Court, Kovilpatti, confirming the judgment and decree passed in O.S.No.3 of 2007, on the file of the District Munsif Court, Vilathikulam, the defendants have filed the above Second Appeal.
2. The second appellant is the wife of the first appellant. The respondent/plaintiff filed the suit in O.S.No.3 of 2007 for recovery of a sum of Rs.73,386/- together with interest at the rate of 12% p.a.
3. It is the case of the plaintiff that the defendants jointly borrowed a sum of Rs.54,000/- and executed a promissory note on 09.02.2004 agreeing to repay the said amount together with interest at the rate of 12% p.a. Since the defendants failed to repay the loan amount, the plaintiff sent a registered notice on 18.01.2007, which was also received by the defendants on 19.01.2007. The defendants sent a reply dated 22.01.2007 through their lawyer. According to the defendants, they did not borrow any amount from the plaintiff and execute the suit promissory note. Further they have stated that the suit promissory note is a fabricated document. That apart, the defendants have also stated that they have not signed the suit promissory note at any point of time.
4. Before the trial Court, on the side of the plaintiff, P.W.1 was examined and four documents viz., Exs.A.1 to A.4 were marked and on the side of the defendants, the first defendant was examined as D.W.1, however no document was marked. The trial Court, after taking into consideration the oral and documentary evidences let in by the parties, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the defendants preferred an appeal in A.S.No.31 of 2010 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the defendants have filed the above Second Appeal.
5. Heard Mr.V.S.Dhana Aravindha Balaji, learned Counsel appearing for the appellants and Mr.D.Gandhi Raj, learned Counsel appearing for the respondent.
6. At the time of admission of the above Second Appeal, the following Substantial Questions of Law arose for consideration:
?(I) Whether the lower Courts were correct in decreeing the suit by discharging the initial burden of proof when there is specific denial against the execution of Ex.A.1 itself by the appellants from the inception of legal notice itself?
(II) Whether the lower Courts were correct in decreeing the suit by drawing the adverse inference against a pardhanasin woman solely on the ground that she had not examined herself as witness, when she had pleaded against such execution in her written statement and reply notice? and (III) Whether the trial Court is correct in comparing the alleged signatures of the appellants in the Ex.A.1 (Pro note) along with the vakalat and written statement filed by appellants under
Section 73 of the Evidence Act when the execution itself denied and the initial burden of proof itself not discharged by the respondent??
7. The main contention raised by the defendants is that Ex.A.1 - promissory note is a fabricated document and that they are not signed the promissory note. The defendants have also denied that they borrowed any money from the plaintiff at any point of time. The plaintiff who was examined as P.W.1, in his evidence, has categorically stated that the defendants have borrowed a sum of Rs.54,000/- agreeing to repay the said amount together with interest at the rate of 12% p.a. and also executed Ex.A.1 - promissory note. Since the defendants failed to repay the loan amount, the plaintiff issued a notice dated 18.01.2007, marked as Ex.A.2, to the defendants. The defendants sent Ex.A.4 reply dated 22.01.2007 to the plaintiff stating that they have not borrowed any money.
8. It is settled position that the burden of proof lies only on the plaintiff to establish his case by adducing oral and documentary evidences. However, there is no bar that the defendant should not prove his contention by adducing proper evidence. In the case on hand, though the plaintiff has not filed any application for comparison of the signature found in Ex.A.1 ? promissory note, the defendants having raised a contention that they have not signed the promissory note, they could have filed an application for comparison of the signature.
9. On a perusal of Ex.A.1 ? promissory note, it is clear that the second defendant had signed her name as K.Kamila in Tamil. On a perusal of the vakalat filed in the Second Appeal, it could be seen that she had signed her name as S.Kamila Begam in English. The learned Counsel appearing for the appellants/defendants submitted that the second defendant used to sign her name in three types. When the second defendant is signing her name in three different types, it would be very difficult to compare the signature even in Ex.A.1 ? promissory note. If Ex.A.1 ? promissory note is sent to expert for comparison, the second defendant might produce her admitted signature singed in Ex.A.1 as found in vakalat in the Second Appeal.
10. The reason for signing her name in three different types has not been explained before the Courts below as well as before this Court. Further, the Courts below have concurrently gave a finding that Ex.A.1 ? promissory note was signed by the defendants. When the Courts below have concurrently found that the defendants had signed in Ex.A.1 ? promissory note, the said question of fact cannot be gone into in this Second Appeal under Section 100 of the Civil Procedure Code. The Courts below have concurrently found that the second defendant is in the habit of putting signatures in different types.
11. Taking into consideration all these aspects, the Courts below found that the suit ? promissory note is true and genuine document and the defendants had borrowed a sum of Rs.54,000/- under the said promissory note. The trial Court decreed the suit for a sum of Rs.73,386/- along with interest at the rate of 6% p.a. from the date of the plaint till the date of realisation, which was rightly confirmed by the lower Appellate Court.
12. In these circumstances, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs.
To
1. The Subordinate Court, Kovilpatty.
2. The District Munsif Court, Vilathikulam.
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