1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINA CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.202 OF 2008 IN SUIT NO. 1405 OF 2008 Kamlesh Ashok Makhija ......Plaintiff V. Naresh Moolchand Kapur ......Defendant Mr. Shailesh Shah with Mr. V.B. Amin i/b M/s Amin & Co. for the plaintiff Mr. Rajendra R. Mishra for the defendant CORAM : A.A. SAYED, J. DATE : 8TH JULY, 2009. P.C. 1 The above Summons for Judgment is taken out by the plaintiff to enter a judgment against the defendant for a sum of Rs.3,68,110/- together with interest at the rate of 18% p.a. on the principal sum of Rs. 2,62,000/- from the date of filing of the suit till payment and/or realization. 2 The suit is based upon a promissory note dated 18-10-2005 of a sum of Rs. 2,62,000/-. The case of the plaintiff, who is a widow, is that her brother, the defendant herein, had executed the said promissory note in his handwriting and agreed to pay the interest at the rate of 21% p.a. on the said sum of Rs. 2,62,000/- . Accordingly interest was paid of an amount of Rs.13,765/- for the quarter from 18-10-2005 to 16-1-2006. 2 However thereafter as no amount was paid to her, ultimately a notice dated 6th December, 2007 was issued to the defendant through her Advocate by Registered AD. The said notice however, had come back with the postal remark "intimation sent" on the envelope. Hence the above Suit and Summons for Judgement is filed. 3 The defendant has filed a reply opposing the Summons for Judgment. According to the defendant the suit filed by the plaintiff is false and bogus. The defendant's case is that he has not signed the alleged promissory note dated 18th October, 2005 and the said promissory note is forged and fabricated. He further stated in his reply that he has not received the Advocate's notice dated 6th December, 2007. The plaintiff has also filed affidavit-in-rejoinder and an additional affidavit. 4 The learned counsel for the plaintiff has pointed out the additional affidavit dated 19-06-2009 wherein it is stated that the plaintiff has obtained opinion of handwriting expert and the handwriting expert had opined that the pattern of signature of the defendant on the promissory note matches with the pattern of signature made on other documents containing signatures of the defendant. Copy of the opinion of the handwriting expert is annexed to the said affidavit. The learned counsel for the plaintiff submitted that under section 73 of the Indian Evidence Act, 1872 the Court is empowered to compare the signatures of the defendant on the promissory note with the other admitted signatures of the defendant. The learned Counsel further submitted that under Section 80 of Negotiable Instruments Act, the plaintiff is entitled interest at the rate of 18% p.a. He further stated that there is presumption in law so far as receipt of the Advocate's notice by the defendant is concerned and it 3 is deemed to be proper service. He submitted that there is no reply to the Advocate's notice which would amount to deemed acceptance of the claim of the plaintiff. 5 The learned counsel for the plaintiff relied upon the case of Lalit Popil V. Canara Bank and others, reported in AIR 2002 SC 1796, wherein in para 13 it was observed as follows:- "It is to be noted that under Ss. 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others,whereas under S. 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of hand writing is dealt with in three Sections of the Evidence Act. They are Ss. 45, 47 and 73. Both under S. 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Sec. 73 of the Evidence Act. Ordinarily, Ss. 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts evidence is not there, Court has power to compare the writings and decide the matter. (See Murari Lal V. State of Madhya Pradesh (1980) 1 SCC 704)". 6 The learned Counsel for the defendant on the other hand, submitted that the demand promissory note, based upon which the present action is brought, is false and fabricated and that the amount has allegedly been given in cash by the plaintiff to the defendant and there is no mention in the promissory note about any interest. The learned Counsel further 4 submitted that the defendant has also denied his signature on the promissory note. The learned Counsel argued that the report of the handwriting expert cannot be relied upon, particularly at this stage and that evidence would required in the matter and triable issues are involved in the matter and unconditional leave to defend the suit ought to be granted to the defendant. 7 I have heard the learned counsel for the parties and perused the material on record. At the outset it is to be noted that the entire case of the plaintiff is based on a promissory note. The amount mentioned in the promissory note is not paid by cheque, but in cash. The defendant having denied his signatures on the promissory note, in my view at this stage it would not be appropriate for the Court to compare the signatures to decide whether the signatures of the defendant in the said promissory note and other admitted signatures are similar without giving an opportunity to the defendant to lead the evidence and to cross examine the plaintiff. The report of the handwriting expert also cannot be taken cognizance of to pass a decree at this stage inasmuch as the handwriting expert will have to be called as a witness and an opportunity would have to be given to the defendant to cross examine the handwriting expert also. 8 Insofar as the ruling cited above by the learned Counsel for the plaintiff is concerned, it is to be noted that, that was a case of disciplinary inquiry of an officer and it was the Advisory Authority who was considering the handwriting expert's report. Pertinently, this ruling in para 16 also refers to the case of State of Rajasthan Vs. B K. Meena and others, reported in (1996) SCC 417 wherein it was observed as follows:- 5 " ... in a case of disciplinary inquiry the technical rules of evidence have no application. " Considering the above, the ruling cited by the learned Counsel for the plaintiff cannot be of any assitance to the plaintiff in the facts of the present case. 9 It is to be noted that no interest component has been mentioned in the promissory note . The fact that the parties are closely related cannot enure to the benefit of the plaintiff in the facts of the instant case. It is further noted that even the amount of interest allegedly paid for the quarter from 18-10-2005 to 16-01-2006 is stated to have been received in cash and no receipt has been relied upon to show that interest was infact paid. It is also noted that there is some pending litigation between the same parties in respect of their shares in the estate of the deceased father of the parties. The consequences of such comparison without any evidence being led and without any corroborative material at this stage would be too drastic and I would not venture to decree the suit merely based on comparison of signatures, more particularly when the amount alleged to have been given, is in cash. 10 Considering the facts and circumstances of the case and taking over all view of the matter, in my opinion, the defendant has raised triable issues and I am inclined to grant unconditional leave to the defendant to defend the suit. 11 In the circumstances, the defendant is granted unconditional leave to defend the suit. Suit to stand transferred to the list of commercial 6 causes. Written Statement to be filed within a period of 12 weeks. Affidavit of Documents to be filed within 8 weeks thereafter. Discovery and Inspection of documents within 8 weeks thereafter. 11 Summons for Judgment is dismissed. A.A. SAYED J.