RPA No2509 2006 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 24TH DAY OF AUGUST, 2011 PRESENT THE HON’BLE MR.JUSTICE V,G.SABHAHIT AND THE HON’BLE MR.JUSTICE B.MANOHAR REGULAR FIRST APPEAL NOQj2006(MON1 BETWEEN: VIRUPAXAPPA ABBIGERI, S/O. LATE CFIANDRASEKHARAPP \ ABBIGERI, AGE: 42 YEARS, 0CC: BUSINESS, RESIDING AT ABBIGERI MILL COMPOUND, GADAG 582 101 PPELLA\T (BY SRI.G RANI)ANIMATH AND SRI D,LLADKF IAN, ADVOCATES) AND: GPURUSHOTHAM. S () SMT IKALAMMA, AGE: MAJOR, OCC F3USINESS. RESIDING AT CHITWADIGI, HOSPET, BELLARY 583 201 RESPONDENT (BY SRL\’.PJKULKRNI, AD\) THIS RSA PILEI) UNDER SECTION 96 R’V ORDER 41 RI.. LE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13/10/2006 PASSED IN OS.NO53/1999 ON THE PILE OF THE PRL. CIVIL JUDGE (SRDN) AND JMFC., FIOSPET, DECREEI\G TIlE SUIT FOR RECONERY OP MONE RFA No.2509/2006 2: THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, V.G.SABHAHIT.J., DELIVERED THE FOLLOWING: JUDGMENT This appeal is filed by the defendant in O.S.No.53/ 1999 on the file of the Pri. Civil Judge, (Sr.Dn.), and JMFC., Hospet, wherein the suit filed by the plaintiff/respondent herein for recovery of Rs. 1,72,050/- on the basis of the pronote executed has been decreed with future interest at the rate of 24% p.a. and the principal amount of Rs. 1,00,000/- from the date of the suit till complete realisation from the defendant. 2. The material facts leading up to this appeal with reference to the ranking of the parties before the trial court are as follows: The suit was filed by the plaintiff/respondent herein on 14.01.1999 averring that the plaintiff and defendant are known to each other since several years. Out of the said friendship, the defendant has approached the plaintiff for financial help for his business as such the defendant S RFA No.2509/2006 :3: has borrowed a cash loan of Rs. 1,00,000/- from the plaintiff on 18.01 . 1996 and agreed to repay the same with interest at the rate of 24% p.a. Accordingly, executed on demand promissory note. The defendant has agreed to repay the said amount within 6 months. But, he has failed to keep up his promise. Then the plaintiff has requested the defendant several times for repayment of the said loan with interest. But, the defendant went on postponing for one or the other reasons. However, on 17.11.1997, the defendant has paid Rs.100/-. Accordingly, it is endorsed behind the promissory note. But he has not made further payment. Hence, the plaintiff was constrained to issue a notice on 01. 12.1998 calling upon the defendant for repayment of the loan with interest. The defendant replied to the said notice denying the claim and therefore the suit was filed for recovery of Rs. 1,72,050/- with current and future interest at 24% p.m. from the date of suit till the date of realisation. The said amount was arrived at as follows: RFA No.2509/2006 :4: Particulars of claim a) Amount borrowed from plaintiff by the defendant under pronote dated 18.01.1996 b) Add: Interest on Rs.1,00,000/- from 18.1.1998 till 14.1.1999 at 24% p.a. c) Add:Lawyer’s notice charges Total d) Less:Amount paid on 17.11.1997 by defendant to plaintiff Balance due Rs. 1,00,000/- Rs. Rs. 7 1,650/- 500/- Rs. 1,72, 150/- Rs. 100/- Rs. 1,75,050/- The plaintiff also sought for costs in the suit. 3. The defendant contested the suit by filing the written statement averring that the averment made in the suit that plaintiff and defendant know each other and defendant borrowed cash loan of Rs. 1 lakh and executed a promissory note on 18.0 1.1996 agreeing to repay the same within six months with interest at 18% p.a. was denied. It RFA No.2509/2006 :5: is averred that the defendant has not at all executed any document nor the promissory note in favour of the plaintiff as alleged nor promised to repay the amount as averred in the plaint and that the promissory note is a concocted document. The averment that defendant paid Rs.l00/- is also denied and it is averred that the defendant never borrowed any amount and he is not liable to pay any amount to the plaintiff. It is also averred that the suit document is clearly forged and concocted document and by the present suit the defendant’s reputation has been marred. Hence, prays for awarding him compensatory costs to the tune of Rs.2 lakhs. It is further averred that there is no cause of action and the suit is liable to be dismissed. 4. Having regard to the above pleadings, the trial court framed the following issues: “1. Whether plaintiff proves that defendant has borrowed a loan of Rs. 1,00,000/-from the plaintiff on 18.1. 1996 agreeing to RFA No.2509/2006 repay the same with interest at 24% p.a. by executing an on demand pronote? 2. Whether the plaintiff proves that the defendant has paid Rs.100/- on 17.11. 1997 by making endorsement behind the promissory note? 3. Whether the defendant proves that the suit document is forged and concocted as alleged in the written statement? 4. Whether the plaintiff is entitled to the suit reliefs soughtfor? 5. What order or decree?” 5. On behalf of the plaintiff, he himself was examined as PW— 1 and got marked 4 documents at Ex.P. 1 to Ex.P.4. On behalf of the defendant, he himself examined as DW- 1 and got marked 3 documents Ex.D. 1 to Ex.D.3. 6. The trial court after considering the contention of the learned counsel for the parties and scrutinising the material on record has held that though the defendant has denied the signature on the promissory note, on verification it found that they were the signatures of the RFA No.2509/2006 :7: defendant on comparison of the signature in Ex.P. 1 and the vakalath filed by the defendant and the signature contained in the written statement and that similar suit had been filed by the plaintiff in O.S.No. 178/1999 and same contention was taken in the said suit which was accepted and accordingly held that the plaintiff has proved execution of the promissory note by the defendant on 18.1.1996 for borrowing Rs. 1 lakh from the plaintiff agreeing to repay the same on demand with interest at 24% p.a. and therefore the defendant is liable to satisfy the claim of the plaintiff as made out in the suit and accordingly answered the points for determination in favour of the plaintiff and passed a decree holding that plaintiff is entitled to recovery of Rs. 1,72,050/- with future interest at the rate of 24% p.a. on the principal amount of Rs. 1,00,000/ - from the date of the suit till complete realisation from the defendant. Being aggrieved by the said order, the defendant has preferred this appeal. RFA No.2509/2006 :8: 7. We have heard learned counsel for the appellant and learned counsel for the respondent. 8. Learned counsel for the appellant submitted that the appellant has denied the execution of the promissory note and the signature found on the pronote Ex.P. 1 and also the fact that he has borrowed Rs. 1 lakh from the plaintiff. An application was filed in IA-HI for referring the promissory note containing the signature of the defendant with the signature taken by the defendant by the court to the opinion of the hand writing expert. Thereafter, IA-XII and XIV were filed for consideration of the said application and by order dated 3 1.07.2006 and 30.09.2006 respectively, they were rejected. However, IA-HI was not considered and by order dated 23.07.2002, IA was ordered to be heard along with the suit and on comparison of the signature and the trial court was not justified in comparing the signature by itself even otherwise the said finding is erroneous. When an application was pending RFA No.2509/2006 :9: for referring the disputed signature for the opinion of the hand writing expert, the trial court was not justified in comparing the signature of the defendant on various documents produced before the court with that of the signature found on the promissory note. Counsel for the appellant has taken us through the evidence of PW- 1 and the contents of Ex.P. 1 to 4 and also the evidence of DW- 1 and the documents Ex.D. 1 to 3 and submitted that the only reasoning given by the trial court that similar suit had been filed by the plaintiff in another case wherein also same defence was taken in O.S.No. 178/1999 was not justified and could not have passed common order on IA III as per the certified copy of the judgment which is produced along with the appeal memo. 9. In response to the arguments of the learned counsel for the appellant, learned counsel for the respondent submitted that IA-Ill which was ordered to be heard along with the suit has been dismissed by passing an order in RFA No.2509/2006 10: the ordersheet on 13.10.2006 when the judgment was passed on the same day and therefore IA-Ill was not pending as on the date of disposal of the suit. He has further taken us to the facts elicited in the cross- examination of DW- 1 and submitted that it is clearly elicited in his cross-examination that he will make enquiry with the persons who comes and demands money said to have been borrowed from him and he would deny if he has not borrowed the amount from the said person. It is true that since he had borrowed the amount and executed the pronote, he did not make enquiry with the plaintiff and the said admission would conclusively prove the execution of the on demand promissory note as per Ex.P. 1 and question of referring the signature on the pronote to the hand writing expert does not arise at all and even otherwise IA-Ill has been disposed of and therefore the appeal is devoid of merits. RFA No.2509/2006 11: 10. In reply, learned counsel for the appellant submitted that the above facts elicited in the cross-examination of DW- 1 does not contain a stray sentence and the case has to be considered in the light of the entire evidence and the defence taken in the written statement and the reply notice and cannot be considered in isolation dehors the contention taken in the written statement and other part of the evidence of DW- 1 where he has clearly denied the execution of the promissory note. 11. In support of his contention, he has relied upon the decision of the Supreme Court in the case of CHIKKL4M KOTESHWARA RAO VS. CHIKKAM SUBBARAO AND OTHERS (AIR 1971 Sc 1542) wherein it is clearly held that before right of party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. He has also relied upon the RFA No.2509/2006 12: decision of the Supreme Court in the case of THIRUVENGADA PILLAI VS. NAVANEETHAMMAL (AIR 2008 SC 1541) wherein the observation made in para 15 reads as follows: “While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and RFA No.2509/2006 13: disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression - Whether the Court finds that the disputed finger impression and admitted thumb impression are clear where the Court is in a position to identify the characteristics offinger prints, the Court may record a finding on comparison even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal.” in support of his contention that the trial court was not justified in comparing the signature when the application was pending for referring the signature to the hand writing expert. 12. Having regard to the contentions urged, the points that arise for our determination in this appeal are: “1. Whether the finding of the trial court that the plaintiff has proved that defendant RFA No.2509/2006 14: had executed a promissory note on 18.01.1996 and borrowed Rs.1 lakh agreeing to repay the same on demand with interest at 24% p.a. and therefore plaintiff is entitled to recover Rs. 1,72,050/- with current and future interest from the date of suit till realisation is justified or calls for interference in this appeal? 2. Whether the judgment and decree passed by the trial court suffers from error or illegality as to call for interference in this appeal? 3. What order? Point Nos. 1 and 2: The finding of the trial court is not justified and liable to be set aside and the matter is liable to be remitted to the trial court as per the final order for the following reasons: RFA No.2509/2006 15: 13. We have given our careful consideration to the contention of the learned counsel for the parties and scrutinised the material on record and re-appreciated the evidence of PW- 1 and contents of Ex.P. 1 to 4 and the evidence of defendant DW- 1 and contents of Ex.D. 1 and Ex.D.2. The scrutiny of the material on record would clearly show that the defendant has denied the execution of the pronote. He has also denied the borrowing of the money from the plaintiff and has averred that the promissory note is a concocted document. An application IA-Ill was filed for referring the said document to the hand writing expert with the admitted signature for the opinion of the hand writing expert. Thereafter, since the said application was not considered, IA-XII and XIV were filed for considering the said application which was rejected and ultimately an order was passed on 23.07.2002 stating that IA-Ill will be considered along with the suit. According to the learned counsel for the appellant, no order has been passed in the judgment either accepting or RFA No.2509/2006 16: rejecting the said application and therefore the application must be deemed to have been pending. 14. However, the learned counsel for the respondent has taken us through the ordersheet dated 13.10.2006 when the judgment was pronounced and that order has also been passed on IA-ITT by rejecting the application. It may be noticed that no reasons are assigned for rejecting the application IA-ITT in the order that is passed in the ordersheet or in the judgment which is impugned in this appeal and therefore rejection of IA-Ill without assigning any reasons cannot be sustained and the said order is to be set aside. 15. It is well settled that when an application has been filed for referring the disputed signature on the promissory note for the opinion of the hand writing expert, the said application has to be decided before the commencement of evidence and could not have been ordered that it shall be considered along with the suit as the very purpose of filing RFA No.2509/2006 17: the application to refer the disputed signature to the hand writing expert would be defeated and therefore the said order ordering that IA filed to refer the disputed document to the hand writing expert shall be heard along with the suit itself is illegal and the judgment which is impugned wherein IA-ill has been rejected without assigning any reason. The said application was crucial for deciding the material contention between the parties in the present suit as defendant has denied his signature on the pronote. He has also denied execution of the pronote, borrowing the amount and he has also denied that he has paid Rs. lOOf as endorsed in the promissory note and therefore the opinion of the hand writing expert was essential to consider the dispute that arises between the parties in the present suit. However, it is contended by the learned counsel for the respondent that since the defendant has admitted in his cross-examination that he did not make any enquiry with the plaintiff as he had borrowed the amount and executed the pronote, question of referring \—cl RFA No.2509/2006 18: the pronote to the hand writing expert would not arise at all and the said application cannot be considered for the obvious reason that order on application ought to have been made during the pendency of the suit and could not have been dismissed at the time of passing of the judgment and decree without the assistance of the opinion of the hand writing expert and merely because IA-Ill has been rejected without assigning any reasons in the ordersheet or in the judgment, the same would not make a order valid. In view of the decision of the Supreme Court relied upon by the learned counsel for the appellant in CHIKKAM KOTESHWARA RAO VS. CHIKICAM SUBBARAO AND OTHERS (AIR 1971 SC 1542), it is well settled that the said admission has to be considered in the light of other material on record and there should be no doubt or ambiguity about the alleged admission and according to the learned counsel for the appellant when the defendant has denied the execution of the promissory note and his signature on the promissory note, he has - RFA No.2509/2006 19: reiterated the same in the affidavit filed in support of the examination-in-chief and even in the cross-examination he has denied his signature on the pronote as per Ex.P. la and Pla to c as stray sentence recited in the further cross- examination would not amount to conclusive admission which can form the basis for decreeing the suit against the defendant. We do not wish to express any opinion on this question in view of the order which is proposed to be passed by us as we feel that the said contention has to be considered by the trial court and the contention has to be kept open for being urged before the trial court in view of the order that we propose to pass in this order. The trial court has passed the judgment and decree on erroneous reason as referred to above that on comparison, the signature of the defendant on the promissory note and written statement and vakalath is the same which is clearly erroneous perse. On comparison of the signature of the defendant on the promissory note, written statement and vakalath, we find that there is difference in RFA No.2509/2006 20: the signature and unless there is an opinion of the expert, it is not possible to give any finding to that effect. The other reasoning given by the trial court that a similar suit has been filed in OS.No. 178/1999 and defendant had taken the same contention would not also be relevant to hold that the defence taken by the defendant in the present case is false. Under the circumstances, we hold that the order passed by the trial court rejecting IA-Ill and the judgment and decree impugned in this appeal is liable to be set aside and the matter requires to be transmitted to the trial court. Accordingly, the judgment and decree passed by the appellate court is set aside and IA-Ill is allowed. The disputed signature on Ex.P. 1 shall be sent for opinion of the hand writing expert as sought for in the application IA-Ill after obtaining his signature and thereafter the trial court shall pass fresh orders in accordance with law in the light of the report that would be received from the hand RFA No.2509/2006 21: writing expert about the disputed signature of the defendant. The parties are directed to appear before the trial court on 19.09.2011 for seeking further instructions to avoid any further delay. The office is directed to refund the admissible court fee to the appellant. JUDGE Sd/a JUDGE Jm!