IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 5TH DAY OF APRIL, 2018

BEFORE

THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

REGULAR SECOND APPEAL No.528/2012 (MON)

BETWEEN:

K.V.Subbaiah S/o Veerappa, Aged 48 years, Thakeri Village and Post, Taluk, -571236. .. Appellant

( By Sri T.I. Abdulla, Advocate for Hegde Associates, Advocates)

AND:

K.M.Somaiah S/o Muthappa, Aged about 53 years, Gargandur Village, Somwarpet Taluk, Kodagu District-571 236. .. Respondent

(By Sri. Ravishankara K., Advocate for Sri M.Shivaprakash, Advocate)

This Appeal is filed under Section 100 of CPC, against the judgment and decree dated 15.12.2011, passed in RSA.No.528/2012

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R.A.No.40/2007, on the file of the Senior Civil Judge, , allowing the appeal and setting aside the judgment and decree dated 6.7.2007, passed in O.S.No.79/2005, on the file of the Civil Judge (Jr.Dn.), Somwarpet.

This Appeal coming having been heard and reserved for judgment on 26.3.2018, coming on for pronouncement of judgment, this day the Court delivered the following :

JUDGMENT

The present respondent had filed an original suit in O.S.No.79/2005, in the Court of the Civil Judge

(Jr.Dn.), Somwarpet, (henceforth for brevity referred to as “the trial Court”) against the present appellant for recovery of a sum of `45,543/- with interest thereupon.

2. The summary of the case of the plaintiff in the trial Court was that, the plaintiff on the request of the defendant had given him a loan of `30,000/- on

17.8.1998 upon the defendant executing a promissory RSA.No.528/2012

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note in his favour agreeing to repay the said loan amount along with interest thereupon at 17% p.a. In spite of repeated demands and even after issuance of a legal notice, the defendant failed to repay the loan amount, as such, the plaintiff was constrained to institute a suit against him for recovery of money.

3. In response to the notice served upon him, the defendant appeared through his counsel and has filed written statement totally denying the plaint averments regarding borrowing of `30,000/- from the plaintiff and also execution of promissory note agreeing to repay the said amount along with interest thereupon. Apart from denying his alleged liability towards the plaintiff, the defendant also contended that the documents produced by plaintiff is a rank forgery which does not bear his signature. RSA.No.528/2012

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4. Based upon the pleadings of the parties, the trial

Court framed the following issues:

1) Whether the plaintiff proves that the defendant has raised a loan to a tune of `30,000/- and in this regard, executed Promissory Note to repay the same?

2) Whether the plaintiff proves that the defendant has agreed to pay interest at 17% p.a. to the above said loan amount?

3) Whether the plaintiff is entitled for the suit claim as prayed for?

4) What order or decree?

5. In support of his case, the plaintiff got himself examined as PW-1 and got examined one more witness as PW-2. He has also got produced and marked the documents from Exs.P-1 to P-6. Defendant got himself RSA.No.528/2012

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examined as DW-1 and got the documents marked from

Exs.D-1 and D-2.

6. The trial Court after hearing both side and considering the material placed before it, answered issue

Nos.1 to 3 in the negative and by its judgment and decree dated 6.7.2007 dismissed the suit of the plaintiff.

7. Being aggrieved by the judgment and decree of dismissal passed by the trial Court, the plaintiff preferred an appeal before the Senior Civil Judge,

Madikeri (henceforth for brevity referred to as “the First

Appellate Court”) under Order XLI Rule 1 read with

Section 96 of the Code of Civil Procedure, in

R.A.No.40/2007. The respondent therein appeared before the Court and contested the matter.

RSA.No.528/2012

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8. The First Appellate Court framed the following points for its consideration:

1) Whether the plaintiff proved that the defendant has borrowed loan of `30,000/- in his favour and executed pronote, agreeing to repay the same? 2) Whether the plaintiff proved that the defendant used to describe himself as K.E.Subbaiah, S/o Erappa, on occasions?

3) Whether the plaintiff is entitled for the reliefs as prayed for?

4) Whether the Judgment and decree passed by the trial Court is required to be interfered with?

5) What order or decree?

The First Appellate Court after hearing, answered point Nos.1 to 4 in the affirmative and by its judgment and decree dated 15.12.2011, allowed the appeal filed RSA.No.528/2012

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by the plaintiff and set aside the judgment and decree of the trial Court passed in O.S.No.79/2005 and directed the defendant to pay a sum of `30,000/- with interest thereupon at 17% p.a. from 17.8.1998 till the date of suit and 6% p.a. from the date of suit till the date of realisation to the plaintiff.

9. It is against the said judgment and decree of the

First Appellate Court, the defendant has preferred this appeal.

10. This Court while admitting this appeal, framed the following substantial question of law :

“ Whether the First Appellate Court committed a wrong in not adopting the well established principles of law for appreciation of evidence and erred in reversing the judgment and decree of the Trial Court and RSA.No.528/2012

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granting a decree for money in favour of the respondent?”

11. In response to the notice, the respondent is being represented by his Counsel.

12. The lower Court records were called for and the same are placed before the Court.

13. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court.

14. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the trial Court respectively.

15. Learned counsel for the appellant in his argument reiterated the contention taken up by the defendant in his memorandum of appeal and submitted that the First Appellate Court erred in identifying the RSA.No.528/2012

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borrower. It failed to notice that the defendant arrayed in the suit was K.E.Subbaiah and that the person contested the matter as the defendant was one Sri

K.V.Subbaiah. He further submitted that the First

Appellate Court also failed to notice the discrepancy in the signature found in the documents, including the promissory note at Ex.P-1. As such, in the absence of the identity of the defendant, the reversal of the judgment and decree of the trial Court by the First

Appellate Court was not justified.

Learned counsel for the respondent/plaintiff in his argument submitted that at the first instance on

2.3.2001, a legal notice was served upon the defendant calling upon him to pay the loan amount referring to the on demand promissory note executed by him. However, the defendant failed to reply to the said notice. RSA.No.528/2012

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Thereafter, the suit was instituted and suit summons were served upon the defendant in the year 2001, for which, the defendant filed written statement in the year

2002. However, the defendant did not bother to state that he is not K.E.Subbaiah, S/o, Erappa, but he is different person with the name K.V.Subbaiah, S/o

Veerappa. However, for the first time on 4.4.2005 in his evidence, he came up with a plea of alleged difference in his identity, which is purely an after thought and with some ulterior motive. As such, the

First Appellate Court has rightly reversed the judgment and decree of the trial Court. He has also submitted that all the signatures of the defendant found in the records of the Court are all of defendant only and that they tally with each other. As such also, the judgment and decree passed by the First Appellate Court does not warrant any interference by this Court.

RSA.No.528/2012

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16. In the trial Court, the plaintiff got himself examined as PW-1, who, in his examination-in-chief in the form of affidavit evidence, has reiterated the contention taken up by him in his plaint. He has specifically stated that the defendant who was known to him since several years, approached him at Gargandoor village, with a request to give him a loan of `30,000/-.

Considering his request, he lent him a sum of `30,000/- upon the defendant executing an on demand promissory note on 17.8.1998. He has also stated that defendant had agreed to repay the said amount on demand along with interest thereupon at 17% p.a. However, the defendant had failed to repay the loan amount despite a demand made by the plaintiff. As such, he had instituted a suit for a sum of `45,543/-, which includes the interest till the date of filing of the suit and the legal notice charges. The plaintiff also got marked documents RSA.No.528/2012

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at Exs.P-1 to P-6, including a promissory note at Ex.P-1, copy of legal notice at Ex.P-2.

In his cross-examination, PW-1 once again has stated that the defendant was a person known to him since about 7 to 8 years. The said statement of the plaintiff that the defendant was known to him has not been denied or disputed by the defendant side. PW-1 in his cross-examination has also given further details regarding the loan transaction with the defendant and had also identified the signatures of the defendant in the vakalat filed on behalf of the defendant and also his written statement. PW-1 has also specifically stated that at the time of loan transaction, one Sri

J.B.Manjappa and one Sri K.M.Laxmana, both of his village, were also present and have witnessed the loan transaction, wherein the defendant had executed on RSA.No.528/2012

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demand promissory note. PW-1 has also given the details of the property he is possessing in the form of

10 acres of plantation and having two houses, one in the plantation and another in Kushalnagar, Thus has shown that he was sufficient with funds to lend the loan amount of `30,000/- to the defendant. However, it has to be noticed that no where in the cross-examination of

PW-1, any suggestion was made from the defendant side that the alleged loan transaction was said to be one with K.E.Subbaiah, S/o Erappa, whereas, the defendant contesting the matter is a different person with the name K.V.Subbaiah, S/o Veerappa.

17. One Sri J.B.Manjappa was examined as PW-2 on behalf of the plaintiff. The said witness in his examination-in-chief has stated that he along with one

Sri K.M.Laxmana, were the witnesses to the loan transaction, whereunder, the defendant had borrowed a RSA.No.528/2012

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sum of `30,000/- from the plaintiff on 17.8.1998 by executing on demand promissory note as per Ex.P-1.

This witness also identified the said promissory note at

Ex.P-1 and his signature at Ex.P-1(b) and also that of

K.M.Laxmana, the other witness, at Ex.P-1(c).

In his cross-examination, which appears to have been made to a considerable extent without showing

Ex.P-1 to him, the witness has given the details regarding the handwriting, colour of the ink and number of pens used in writing Ex.P-1. However, he has maintained that the document at Ex.P-1 was the promissory note executed by the defendant Subbaiah in favour of the plaintiff. The witness also has given the details of the revenue stamps affixed to the promissory note, upon which, the defendant is said to have been signed. This witness categorically stated that there was no variation or difference in the signatures at Ex.P-1 RSA.No.528/2012

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with that of the signature in the vakalat of the defendant filed in the suit and also his written statement. Thus,

PW-2 claiming to be the witness to the alleged loan transaction has fully supported the case of the plaintiff.

Interestingly, even in the cross-examination of PW-2 also, the defendant has not taken any defence that he was not K.E.Subbaiah, but a different person with the name K.V.Subbaiah.

18. The defendant got examined as DW-1, who, in his evidence, for the first time, took a contention that he is K.V.Subbaiah, S/o Veerappa, but not K.E.Subbaiah,

S/o Erappa. He has denied that he had availed any loan from the plaintiff, much less, a sum of `30,000/- after executing the promissory note at Ex.P-1 He also stated that, he had received the legal notice sent by the plaintiff to him under Certificate of Posting, however, he denied his alleged liability towards the plaintiff. In his RSA.No.528/2012

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support, he produced and got marked a Cumulative

Record (High School academic record book) and a Bank

Passbook in his support and got them marked as

Exs.D-1 and D-2. Both those documents show that they pertain to one Sri K.V.Subbaiah , S/o Veerappa.

In the cross-examination of DW-1, he stated that the signature found in the Court summons does not belong to him and that summon was forcibly served upon him. However, he admitted that summon was served upon him. He also stated that he does not know who K.E.Subbaiah is. Though he stated that all his signatures would be uniform, and admitted his signature in the vakalat filed in the suit, but disputed his signature in the Court summons. He also admitted the signature in his written statement and stated that all his signatures tally with each other. However, he stated that he has not issued any notice alleging that his RSA.No.528/2012

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signature has been forged. He disowned his signature on the promissory note at Ex.P-1(a) and pleaded his ignorance about his signatures of the witnesses at

Ex.P-1(b) and Ex.P-1(c).

19. From the above evidence and the documents produced by both side, it can be presumed that the original suit was filed by the plaintiff against one Sri

K.E.Subbaiah, S/o Erappa, aged about 37 years, Thakeri

Village & Post, Somawarpet Taluk, Kodagu District.

As has been admitted by the defendant himself in his examination-in-chief, before institution of a suit, the plaintiff had sent a legal notice to him under Certificate of Posting and the same was received by him. The copy of the said legal notice is marked at Ex.P-2 and the

Certificate of Posting is at Ex.P-3. In addition to that, even as admitted by the defendant also in his written statement, the plaintiff had sent him the same notice RSA.No.528/2012

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even through Registered Post Acknowledgement Due.

Copy of the receipt of the said registered post and the returned postal cover and copy of the legal notice are marked at Exs.P-4, P-5 and P-6 respectively. All these documents at Exs.P-2 to P-6 show the name of the recipient of the notice as K.E.Subbaiah, S/o Erappa. It has to be noticed that despite the receipt of said legal notice in the first week of March 2001 itself, the defendant, who claims himself to be K.V.Subbaiah,

S/o Veerappa, has not disputed that he is not

K.E.Subbaiah, S/o Erappa and that the notice has come to a wrong person. He has not even disputed that he resides at the same address as shown in Exs.P-2 to P-6 and in the cause title of the original suit O.S.No.79/2005

(old O.S.No.116/2001). Thus, at the earliest point of time, the defendant could have either returned the notice sent by the plaintiff or could have stated to the plaintiff that he was not the addressee shown therein, RSA.No.528/2012

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but has accepted the notice and even after going through its content, has kept quite, which shows that he had not denied or disputed his identity or the correct name to be spelt at the earliest point of time.

20. After issuance of legal notice and by not getting any response from the defendant, the plaintiff instituted a suit on 16.8.2001, showing the name of the defendant as K.E.Subbaiah, S/o Erappa. The suit summons are served upon the said defendant on

10.9.2001. It is interesting to note that even after receipt of summons standing in the name of

K.E.Subbaiah, S/o Erappa, but not in the name of

K.V.Subbaiah, s/o Veerappa, the defendant neither returned the summons with his objection to the Court nor submitted to the Court that suit summons have been served to a wrong person. On the contrary, he has accepted the summons. However, without even stating RSA.No.528/2012

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in his pleading about his correct name and identity, for the first time, in his cross-examination as DW-1, he has stated that the suit summon was served upon him forcibly. In the same breadth, he has stated that signatures found on the suit summons are not of his.

When he admits that summons are served upon him, it is not understandable as to how come he has denied his signature on the suit summons. However, the fact remains that suit summon was duly served upon him.

21. After receipt of suit summons on 10.9.2001, the defendant filed his written statement in the case on

22.7.2002. Even in his written statement also, no where he has taken a contention that he is not the defendant in the suit with the name K.E.Subbaiah,

S/o Erappa, but his correct name is K.V.Subbaiah,

S/o Veerappa. As such, without any objection about his RSA.No.528/2012

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correct name and identity, he continued to contest the suit.

22. It also cannot be ignored of the fact that the defendant who had preferred a Writ Petition before this

Court in Writ Petition No.19435/2005, had described himself as K.E.Subbaiah, but not K.V.Subbaiah. Even after taking that he had carried the same name as shown in the impugned document challenged in the writ petition, still had his name really been only

K.V.Subbaiah, but had never been identified as

K.E.Subbaiah also, then, he would have necessarily mentioned in the writ petition that he is not

K.E.Subbaiah, but his only name is K.V.Subbaiah, which he has not done.

23. Plaintiff and his witnesses were examined in the suit between the dates 10.2.2003 and 11.3.2005. RSA.No.528/2012

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Even in the said period of more than two years also, the defendant kept quite and no where whispered about his alleged difference in identity or spelling in his name.

No suggestion was made in that regard, at least, in the cross-examination of PW-1 and PW-2.

24. For the first time, it was only on 4.4.2005, the defendant in his examination-in-chief in the form of affidavit evidence, came up with a contention that he is not K.E.Subbaiah, S/o Erappa, but, he is K.V.Subbaiah,

S/o Veerappa. However, he has not disputed his address shown in the promissory note at Ex.P-1, legal notice and postal documents at Exs.P-2 to P-6 and also in the plaint filed by the plaintiff. Therefore, what is not stated in the pleading and what is not contended or canvassed for several years prior to 4.4.2005 by the defendant, cannot be accepted when it has come in his evidence for the first time. Even though the defendant RSA.No.528/2012

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has produced his Cumulative Record and Bank Passbook at Exs.D-1 and D-2, which shows the name of

K.V.Subbaiah, S/o Veerappa, but, by that itself, it cannot be held that the said person cannot be identified with variance in the spelling of his name wherein “V” is substituted or replaced with “E”.

25. The defendant has denied his signatures on the promissory note at Ex.P-1. PW-1 in his cross- examination has admitted a suggestion as true that there is slight variation in the signature of the Executant in Ex.P-1 with that of the defendant in his written statement. The trial Court magnified the said stray statement of PW-1 and came to a conclusion that both the identity and the signature of defendant varies from the suit documents to the admitted documents.

However, the trial Court ignored the evidence of PW-2 - the witness to the alleged loan transaction and that the RSA.No.528/2012

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defendant had executed the promissory note at Ex.P-1 in his presence only. However, the said witness has clearly stated that the signature of the defendant shown in the promissory note, his vakalat in the suit, written statement, are all uniform and tally with each other. He clearly stated that there is no difference in those signatures. The said aspect, the trial Court ignored.

However, the trial Court had two options, either to refer the disputed signatures to a handwriting expert for his opinion or if it found reasonable in the circumstances of the case, to compare the signature by itself under

Section 73 of the Indian Evidence Act, 1872. The trial

Court without doing any such thing, jumped to a conclusion that identity of the defendant is not established.

26. Even though normally the Courts should not venture into the comparing of disputed handwriting and RSA.No.528/2012

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signature with the admitted handwriting and signature in a case and normally they are required to obtain an expert’s opinion under Section 45 of the Indian Evidence

Act, 1872. Section 73 of the Indian Evidence Act,

1872, gives power upon Court to compare the disputed handwriting and signature with the admitted one by itself. In the instant case, the alleged disputed signature of the defendant at Ex.P-1(a) when compared with the suit summons served upon the defendant in the

Original Suit by the trial Court, his signature in the vakalat filed in all the Courts in this matter, his signature in the written statement filed in the trial Court in his deposition as DW-1, no variation or discrepancy can be found, which is evident from a bare comparison with a naked eye. Added to this, it also cannot be ignored of the fact that the witness to the execution of the promissory note at Ex.P-1, who was examined as

PW-2, also has categorically and clearly stated that it RSA.No.528/2012

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was in his presence, the defendant has executed the promissory note after receiving the loan amount mentioned in the instrument. His unshaken evidence on the said aspect also cannot be ignored.

27. The First Appellate Court after analysing the pleadings and evidence and also materials produced before both the Courts, has come to a conclusion that the defendant who contested the matter claiming himself to be one K.V.Subbaiah, S/o Veerappa, himself is the defendant arrayed in the plaint as K.E.Subbaiah,

S/o Erappa, and that he himself has executed the promissory note at Ex.P-1 by borrowing a loan of

`30,000/- from the plaintiff. In view of my reasoning above, the said finding given by the First Appellate Court cannot be found fault with and the same cannot be considered as a wrong and as not adopting the well RSA.No.528/2012

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established principles of law for appreciation of evidence.

28. Accordingly, I answer the substantial question of law in the negative and proceed to pass the following order :

ORDER

The Regular Second Appeal is dismissed . The judgment and decree dated 15.12.2011, passed by the

Senior Civil Judge, Madikerei, in R.A.No.40/2007, is confirmed.

Sd/- JUDGE

bk/-