IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 AS.No. 731 of 1998(C) -------------------- OS.35/1994 of SUB COURT, QUILANDY .................... APPELLANT(S): -------------- K. KUNHITHARUVAYI, PADINHAREKANDY, KAVUMTHARA AMSOM,KARUVANNOOR DESOM, KOYILANDI TALUK. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S): --------------- 1. EDOTH KATHEESSA UMMA, KAVUMTHARA AMSOM, KARUVANNOOR DESOM, KOYILANDI TALUK. 2. EDOTH ISMAYIL ALIAS PHIRDOS, (MINOR) 3. EDOTH MUMTAZ (MINOR) 4. EDOTH BABU (MINOR) (MINORS 2 TO 4 REPRESENTED BY THEIR GUARDIAN 1ST RESPONDENT) 5. EDOTH MAJEED, KAVUMTHARA AMSOM, KARUVANNOOR DESOM, KOYILANDY TALUK 6. EDOTH SHAJI, -DO- -DO- 7. EDOTH KUNHIBI, -DO- -DO- 8. EDOTH SAIRA, -DO- -DO- 9. EDOTH RAJALA, -DO- -DO- BY ADV. SRI.B.V.JOY SANKER, FOR R1 - R9 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON 15/07/2009 DELIVERED THE FOLLOWING: A.S.No. 731 of 1998(C) ORDER ON C.M.P. 5991 OF 1998 IN A.S. NO: 731 OF 1998 DISMISSED SD/- M.L.J.FRANCIS JOSEPH (JUDGE) M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - A.S. NO: 731 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th Day of July, 2009. JUDGMENT M. L. Joseph Francis J This appeal is filed by the plaintiff in OS 35/94 on the file of Sub Court Quilandy. Respondents herein are the defendants in that suit. That is a suit for amount due under an agreement. The facts of the case are as follows: 2. The suit was filed on the basis of Ext.A1 agreement dated 18.11.1992 executed between the plaintiff and the predecessor in interest of the defendants. Deceased Imbichimoidy, the predecessor in interest of defendants had received Rs.20,000/- from the plaintiff agreeing to deliver 5000 coconuts during the 30-11-1992 to 31-5-1993. In default he agreed to pay back Rs.7,500/- per thousand coconuts. He delivered only 934 coconuts. The suit was filed for the balance amount as per the agreement. Imbichimoidy died in September 1993. The defendants filed a written statement denying the entire transaction. A.S. NO: 731 OF 1998 : 2 : They further contended that Imbichimoidy had no necessity to borrow any money from the plaintiff as he was having sufficient funds with him. They denied Imbichimoidy's execution of Ext.A1 agreement. 3. In the Sub Court PW1 to PW3 , DW1 were examined and Exts. A1 to A6, and Exts.X1 to X5 were marked. Learned Sub Judge on considering the evidence dismissed suit with cost on finding that the plaintiff failed to prove that Imbichimoidy had borrowed any amount from the plaintiff. Against that decree and judgment the plaintiff filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the respondents. 5. The main dispute between the parties is with regard to the genuineness of Ext.A1 agreement dated 18.11.1992. Admittedly, Imbichimoidy the predecessor in interest of defendants died in September 1993. The fifth defendant is examined as DW1. DW1 has no direct knowledge with regard to the alleged suit transaction between the plaintiff and deceased Imbichimoidy. The plaintiff who is examined A.S. NO: 731 OF 1998 : 3: as PW1 deposes that on 18.11.92 deceased Imbichimoidy borrowed Rs.20,000/- from the plaintiff agreeing to deliver 5000 coconuts from his property to the plaintiff during the period 30-11-1992 to 31-5-1993, in default he agreed to pay back Rs.,7,500/- per thousand coconuts and Ext.A1 is the agreement executed between deceased Imbichimoidy and the plaintiff. PW1 deposes that Imbichimoidy delivered only 934 coconuts and the present suit is filed for the value of balance 4066 coconuts at the rate of Rs.7,500/- per thousand coconuts and the plaintiff claims Rs.30,495/-. PW2 is a Madrassa teacher, who is an attesting witness to Ext.A1 agreement. PW2 deposes that he signed in that agreement as witness No.1 without reading its contents. PW2 deposes that plaintiff and Imbichimoidy had not signed in the agreement in his presence. PW2 admits that he is working as a Madrassa teacher, in the Madrassa situated in the property of defendants. Therefore, we cannot expect any evidence from him which would be against the interest of defendants. In cross examination, PW2 deposes that he cannot say whether any persons had signed in that agreement when he signed as an attesting witness. PW3 is the scribe, A.S. NO: 731 OF 1998 : 4 : who prepared Ext. A1 agreement. PW3 deposes that he prepared Ext.A1 agreement and its duplicate copy as per instructions given by the plaintiff and deceased Imbichimoidy. PW3 deposes that he read over the contents to the plaintiff and deceased Imbichimoidy. PW3 deposes that the draft for Ext.A1 agreement was prepared on the basis of the advice given by Kelappan advocate. The plaintiff and Imbichimoidy accompanied him to the office of Kelappan advocate for getting legal advice. The learned counsel for the appellant submitted as follows: “To prove the signature of Kunhimoidy the plaintiff filed IA 1554/95 to send A1 for expert opinion. He also filed IA 1555/95 calling upon the 1st defendant to produce the original of the settlement deed No.2639/92 executed by Kunhimoidy in her favour. She filed an affidavit stating that the original is not with her. Therefore IA 1554/95 was closed as there was no signature in document to compare with the signature of Imbichimoidy in Ext.A1. Thereafter the plaintiff again filed IA 577/96 to call up on the sub Register Naduvannur to produce the filing sheets of document No.2639/92 and 1568/92 containing the A.S. NO: 731 OF 1998 : 5 : signature of Imbichimoidy for purpose of comparison. The same were produced in court by the sub Registrar. The plaintiff thereafter filed IA 850/96 to send the signature of Kunhimoidy in those two sheets and Ext.A1 agreement for comparison by the hand-writing expert. The court below again dismissed the petition stating that the expert is not entitled to make any marks in the filing sheets and the photo of the signature cannot be sent for expert. It is thus clear that the plaintiff has done all that is possible for getting an expert opinion about the genuineness of Ext,.A1 agreement and the defendants were always opposing any such move by giving one reason or other. Surprisingly the court below has stated in the judgment that the plaintiff did not take any step to get an expert opinion about the genuiness of Kunhimoidy's signature in EXt.A1agreement.” 6. The learned counsel for the appellant submitted that the appellant caused production of documents marked as Ext.X1 to X5 to show that Kunhimoidy had borrowed amount from Quilandy Co- Operative Agricultural Development Bank. Ext.X1 to X5 contain certain loan applications signed by Imbichimoidy. Under Section 73 of the Evidence Act a court is competent to compare the disputed writing A.S. NO: 731 OF 1998 : 6 : with the admitted writing of a person. But is it not safe for the court to record its finding based solely on comparison alone. The court can compare the writing in order to appreciate properly the other evidence produced in court. According PW1 Imbichimoidy wrote his own name in his own handwrting in Ext.A1 and signed it. On comparing the disputed writing and signature in Ext.A1 with admitted writing and signature of Imbichimoidy contained in the loan application in Ext.X1, and on appreciating the testimony of PW1 to PW3 in the light of that comparison, I have no hesitation to find that Ext.A1 agreement was executed between the plaintiff and the deceased Imbichimoidy.. As per Ext.A1 agreement, the plaintiff gave Rs.20,000/- to Imbichimoidy as value of 5000 coconuts to be delivered to him. Calculating on that basis the value of a coconut will come to Rs.4 only. According to the plaintiff, Imbichimoidy gave him only 934 coconuts and the balance of coconuts to be delivered is 4066 coconuts. The value of 4066 coconuts at the rate of Rs.4/- will come to Rs.16,264/- Therefore I am of the view the plaintiff is entitled to get only Rs.16,264/- towards value of 4066 coconuts instead of Rs.30,495/- , claimed by the plaintiff in the A.S. NO: 731 OF 1998 : 7 : plaint. In Ext.A1 agreement there is no clause for payment of interest. Therefore, the plaintiff is not entitled to get any interest till the date of filing of the suit. In view of the above, the learned Sub Judge is not justified in dismissing the suit. Accordingly this appeal is allowed in part and the judgment and decree dismissing the OS 35/94 on the file Sub Court Quilandy is set aside and that suit is decreed in part allowing the plaintiff to realise a sum of Rs.16,264/- together with interest of 6% per annum on the above sum from the date of suit till the date of realisation and proportionate cost of the suit from the assets of deceased Imbichimoidy in the hands of defendants. Parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/