IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 AS.No. 985 of 1998(A) --------------------- OS.221/1990 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): 1ST DEFENDANT: ----------------------------------------------------- LAKSHMI RAJAGOPALAN, AMBADI VEEDU, THRISSUR DESOM, THRISSUR TALUK. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): PLAINTIFF & DEFENDANTS 2 TO 4: ------------------------------------------------------------------------------ 1. PATRIOT KURIES (P) LTD., KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, REPRESENTED BY THE CHAIRMAN. 2. RAVEENDRAN, S/O. KANDAMBULLY KRISHNAN, KUNNAMKULAM DESOM AND VILLAGE, TALAPPILLY TALUK, THRISSUR. 3. MATHEW, S/O. CHEMMANNOR CHAKUNNI, KOTTAPPADI DESOM AND AMSOM, CHAVAKKAD TALUK,THRISSUR. 4. TIRUR HIRE PURCHASE, TIRUR, REPRESENTED BY ITS MANAGING PARTNER, LAKSHMI RAJAGOPALAN, AMBADI VEEDU, THRISSUR DESOM & VILLAGE, THRISSUR TALUK,THRISSUR DIST. R1 BY ADV. SRI. LITTO PALATHINGAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.7868/1998 IN AS NO.985/1998 DISMISSED 11/06/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 985 OF 1998 = = = = = = = = = = = = = = = Dated this the 11th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.221/90. The suit is one for realisation of the amount due under a kuri transaction. It is the case of the plaintiff as amended that on behalf of the 4th defendant the first defendant has joined a kuri which was commenced by the Bangalore Branch Office of the plaintiff's Company and had bid it in auction and had executed Ext.A1 agreement along with defendants 2 and 3 for the payment of the balance 27 instalments and that the first defendant had committed the default and in spite A.S. No. 985 OF 1998 -2- of notice had not paid the amount and therefore the suit is filed for the realisation of the amount. The first defendant has filed a written statement raising the contention that she has not joined the kuri and she had not bid the kuri in auction and further that she had not executed Ext.A1 document and so the plaintiff's Company is not entitled to realise any amount from the first defendant. 2. After a trial the Court has granted a decree in favour of the plaintiff for realisation of Rs.38,130/- by sale of the assets of the 4th defendant and personally by the sale of assets of defendants 1 to 3. The facts of the case really throws some suspicion in the mind of the Court as well. To start with, the plaintiff company has no case that the first defendant as a Managing Partner or on behalf of the 4th A.S. No. 985 OF 1998 -3- defendant has joined the kuri and had bid it in auction. The said notice of which Ext.A2, the copy is produced would not show anything regarding Tirur Hire Purchase which is a partnership concern of which the first defendant is a Managing Partner. Ext.A2 notice is issued as if the first defendant in her personal capacity had joined a kuri bid it in auction and had executed Ext.A1 agreement undertaking to pay the balance amount. When the defendants entered appearance and denied the joining of kuri and also about the execution of Ext.A1 agreement then the plaintiff moved an application for amendment and amends the plaint by incorporating it as on behalf of the 4th defendant, partnership company. It has to be born in mind that the plaintiff's company and the 4th defendant partnership concern are run by persons who are A.S. No. 985 OF 1998 -4- interconnected and related to each other. So the plaintiff cannot and shall not plead ignorance on the inception of the proceedings regarding the same. So now as the case had amended takes totally a different complexion and it is attempted to be proceeded as if the 4th defendant has joined a kuri. It is true that 4th defendant has not entered appearance. When the kuri transaction is denied there is a duty cast upon the plaintiff to prove the same. It has to be remembered that the defendant moved an application as I.A.4603/93 to direct the plaintiff to produce as many as 11 documents. Those documents are really very relevant and absolutely necessary for the proper disposal of the matter. The documents are the application form for the joining of the kuri, the receipts, the passbooks, the ledger, the permission to bid A.S. No. 985 OF 1998 -5- etc. and the court below by an order dated 10.6.94 directed the plaintiff to produce the documents or to file an affidavit. I am informed neither any document nor any affidavit as ordered by the Court was filed and when it is so it requires an adverse inference against the plaintiff. I do not know what prompted the plaintiff from producing those material documents before Court. It appears that the first defendant has admitted her signature in pages 2 or 3 of Ext.A1 but she had denied the signature in page No.1. The learned Subordinate Judge felt that on a comparison with the naked eye the signature appears to be same. I am afraid that I am not able to draw the same conclusion because even for a naked eye there is a palpable difference between the signatures in these pages. The signature in page 1 is put A.S. No. 985 OF 1998 -6- with a different pen with a more coloured ink and the signatures in pages 2 and 3 are there with dim ink. So the finding of the learned Subordinate Judge that Ext.A1 is executed by the plaintiff on the basis of the comparison of signature is not correct. 3. It is true that u/s 73 of the Indian Evidence Act Courts are empowered to make a comparison of the handwriting or signature but the Apex Court has cautioned that comparison of handwriting or signature is a hazardous process which should not be done by the Court for the reason that judges are not experts in that science. The Hon'ble Supreme Court also held that when there is other materials and evidence available before Court this can be used as a matter for corroborative purpose and the decision shall not be on the basis of the mere A.S. No. 985 OF 1998 -7- comparison of signatures. The way in which the plaintiff has initiated action and totally turned topsy turvy are all indications that all is not well with the case of the plaintiff. What was the difficulty for the plaintiff to produce the application form for the joining of the kuri. Similarly there was no difficulty to produce the other relevant documents relating to the joining of the 4th defendant in the kury with plaintiff. Those documents, in spite of notice, are not produced before Court. Therefore I find that the plaintiff has not discharged the burden. The other circumstances which led me to arrive at that decision is a notice which is marked as Ext.B2 which is a document dated 24.1.90. Admittedly it is a notice to the husband of first defendant relating to the kuries joined by D1. There is absolutely no A.S. No. 985 OF 1998 -8- mention about the present kuri. It indicates that the case of the plaintiff is not true. The specific mention about other kuries and non mention of the disputed kuri goes a long way to establish that the plaintiff has not come forward to the Court with clean hands. It has to be remembered that the plaintiff after filing the suit in the personal capacity of the first defendant suddenly changes it into in her official capacity as a managing partner. It shows that the plaintiff is not sure regarding the whole transaction. Therefore I am of the view that the Court should not have granted a decree when there are strong suspicious circumstances which are sufficient to hold against the plaintiff. Therefore I hold that the plaintiff is not entitled to a decree in the absence of the proof regarding the transaction. A.S. No. 985 OF 1998 -9- 4. Therefore I allow the appeal, set aside the judgment and decree of the trial court and dismiss the suit but direct the parties to bear their respective costs. 5. The document produced before this Court be returned to the counsel for the appellant on proper acknowledgment. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 985 OF 1998 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 985 OF 1998 = = = = = = = = = = = J U D G M E N T 11th June, 2010.