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Achuthan Pillai Vs. Marikar (Motors) Ltd., Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 107 of 1977
Judge
Reported inAIR1983Ker81
ActsEvidence Act, 1872 - Sections 3, 61, 62 and 101 to 104
AppellantAchuthan Pillai
RespondentMarikar (Motors) Ltd., Trivandrum and ors.
Appellant Advocate C.K. Sivasankara Panicker, Adv.
Respondent Advocate V. Vyasan Poti and; N. Sugathan, Advs.
DispositionAppeal dismissed
Cases Referred and Ramji Dayawala and Sons (P.) Ltd. v. Invest Import
Excerpt:
- - under section 61 of the evidence act, the contents of documents are to be proved either by primary or by secondary evidence and under section 62 'primary evidence means the document itself produced for the inspection of the court' even on such proof the court is not bound to accept the contents, unless it is satisfied about the tenth of the matter stated. on the evidence adduced in the case, we are also satisfied about the truth of the contents of ext. the court below was therefore perfectly right in decreeing the suit against all the defendants......the only contention raised by the learned counsel for the appellant is that ext. a-6 is not a document executed by the 2nd defendant and he cannot be made liable for the amount due to the plaintiff from defendants 1, 3 and 4 as per the terms of exhibit a-4. his liability under ext. a-1 does not survive. ext. a-4, as per the terms of which the vehicle was entrusted to the 3rd defendant. as to whether the 2nd defendant is liable for the suit-claim will depend on the answer to the question whether or not he has executed ext. a-6 undertaking to the plaintiff whereby his liability continues even after the entrustment of the vehicle to the 3rd defendant, in his written statement the 2nd defendant has raised the contention that even though ext. a-6 contains his signature, it is not a.....
Judgment:

Balakrishna Menon, J.

1. The 2nd defendant is the appellant. The suit is for recovery of Rs. 25,090.05 said to be due to the plaintiff from the defendants under a hire purchase agreement in respect of a Bedford diesel lorry KLO 6676. Ext. A-1 dated 15-9-1969 is the hire purchase agreement, as per the terms of which the plaintiff advanced a sum of Rs. 57,761.00 for the purchase o* the vehicle to be repaid in monthly instalments as provided for in the document. As per Ext. A-l agreement, the plaintiff is the owner of the vehicle, the 1st defendant is its hirer and the 2nd defendant is the guarantor for due payment of the instalments by the 1st defendant. After sometime the 1st defendant defaulted payment, whereupon the plaintiff took possession of the vehicle in August, 1970. Ext. A-4 dated 21-8-1970 evidences a subsequent arrangement to which the plaintiff and defendants 1, 3 and 4 are parties. In Ext. A-4 letter addressed by the 1st defendant to the plaintiff, it is stated that the 1st defendant is not in a position to pay the dues, that, a sum of Rs. 19,938.00 is in arrears besides overdue interest and. othercharges and that the future life charges to be paid come to Rs. 26,000.00. With a view to see that the arrears are paid without delay and that the account is brought to a close expeditiously, the Vehicle is entrusted to the 3rd defendant who is recurred to remit a sum of Rs. 3,500/- immediately besides a further sum of Rs. 1,750/- as. The first remittance under the new arrangement. It is also stated that the 3rd defendant will be making regular payments of all instalments from September, 1970 onwards until the entire balance due under the agreement is fully discharged. It is specifically stated in Ext. A-4 that the arrangement thereunder is without prejudice to the rights of the plaintiff to enforce Ext. A-l agreement and the 1st defendant continues to be liable to the plaintiff thereunder. This letter Ext. A-4 contains an endorsement by the 3rd defendant undertaking liability for payment of all dues to the plaintiff as stated in Ext A-4 until the entire amount due under the hire purchase account is fully paid of. The 4th defendant' has signed Ext. A-4 as an additional guarantor. Subsequent to Est. A-4 there is an undertaking on a stamp- paper of the value of Rs. 3/- signed by the 2nd defendant ratifying the arrangement under Exhibit A-4 and further stating :

'I farther confirm that my guarantee under the said account will continue so long as the entire balance due is paid to you in full together with interest and other charges'. This document is marked as Ext. A-6 in the case. The 2nd defendant is sought to be made liable for the entire balance amount due under Ext A-1, on the basis of his undertaking contained in Ext. A-6.

1. The suit was contested by defendants 1 and 2. According to the 1st defendant his liability under Ext. A-1 came to an end when the vehicle was taken possession by the plaintiff in August 1970 and he happened to sign Ext. A-4 on the suggestion of the plaintiff that he will be exonerated from all liability under Ext. A-1. The 2nd defendant denied execution of Ext. A-6 and contended that it is a document created on a blank stamp paper got signed by him at the time of execution of Ext. A-1. According to the 2nd defendant his liability came to an end when the vehicle was seized by the plaintiff in August 1976, and was entrusted to the 3rd defendant under a different arrangement contained in Ext. A-4.

3. The Court below found that Ext. A-6 is an undertaking duly executed by the 2nd defendant as per the terms of which his liability under Ext. A-1 continued even afterthe vehicle was entrusted to the 3rd defendant. The 1st defendant was found liable for the suit-claim as per his undertaking in Ext. A-4. On these findings the suit was decreed as prayed for against all the defendants. It is against this that the 2nd defendant has conic up in appeal.

4. The only contention raised by the learned counsel for the appellant is that Ext. A-6 is not a document executed by the 2nd defendant and he cannot be made liable for the amount due to the plaintiff from defendants 1, 3 and 4 as per the terms of Exhibit A-4. His liability under Ext. A-1 does not survive. Ext. A-4, as per the terms of which the vehicle was entrusted to the 3rd defendant. As to whether the 2nd defendant is liable for the suit-claim will depend on the answer to the question whether or not he has executed Ext. A-6 undertaking to the plaintiff whereby his liability continues even after the entrustment of the vehicle to the 3rd defendant, in his written statement the 2nd defendant has raised the contention that even though Ext. A-6 contains his signature, it is not a document executed by him, but fabricated by the plaintiff on a blank stamp paper got signed by him at the time of execution of Ext. A-1. Thus, the 2nd defendant admits his signature in Ext. A-6; but denies that it is a document executed by him.

5. Learned counsel for the appellant has cited the decisions in Ebadut Ali v. Muhammed Farced (AIR 1916 Pat 206), Joseph Prasad Singh v. Ramchandar Prasad Singh (AIR 1950 Pat 370), Gitabai Srinivas v. Dayaram Shanker (AIR 1970 Bom 160), Ch. Birbal Singh v. Harphool Khan (AIR 1976 All 23) and Ramji Dayawala and Sons (P.) Ltd. v. Invest Import (AIR 1981 SC 2085), in support of his argument that the signature of the 2nd defendant in Ext. A-6 does not prove that it is an undertaking duly executed by him. We do not consider it necessary to discuss all the decisions cited in vtew of the decision of the Supreme Court in Ramji Dayawala and Sons (P.) Ltd.'s case (AIR 1981 SC 2085). There a sub-contract between the appellant and the respondent therein contained a clause for arbitration. The appellant sent a letter and a cable to the respondent to delete the clause for arbitration from the contract between the parties. There was no reply by the respondent who allowed the appellant to proceed with the implementation and execution of the sub-contract without controverting what the appellant has asked for in his letter and cable. One of the questions before the Supreme Court was whetherthe appellant had proved the contents of the letter and cable despatched by him to the respondent, and it was in that context the Supreme Court observed at page 2092 as follows :

'Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue'.

The above passage would only show that proof of execution of a document is not proof of the truth of the contents of the document. The truth of the facts stated in the document if denied is to be proved by admissible evidence. Under Section 61 of the Evidence Act, the contents of documents are to be proved either by primary or by secondary evidence and under Section 62 'primary evidence means the document itself produced for the inspection of the Court' Even on such proof the Court is not bound to accept the contents, unless it is satisfied about the tenth of the matter stated.

6. In the decision in Jogesh Prasad Singh's case (AIR 1950 Pat 370), cited by the learned counsel for the appellant, it is stated at page 371 :--

'It is true that in a case of this sort the initial onus is on the person who alleges that the document was executed by the persons whose names appear thereon as the executants. But where these persons admit their endorsements and allege that they made those endorsements on blank paper the onus is very easily shifted.'

7. In paragraph 7 of his written statement the 2nd defendant admits his signature in Ext. A-6. His only case is that the document is fabricated on a blank stamp paper got signed by him at the time of execution of Ext. A-1. The 2nd defendant has not gone to the witness-box to prove his case in the mitten statement that Ext. A-6 is a fabrication on blank stamp paper signed by him. His brother is examined as D.W. 1. He is not in a position to delay the due execution of Ext. A-6 by the 2nd defendant. The 2nd defendant on 9-12-1975 filed a schedule of witnesses to be examined to the lowerCourt. The schedule does not contain his name as one of the witnesses to be examined on his behalf. He filed a petition on the same day for permission to examine his brother as a witness, on his behalf for the reason that he was suffering from Ashthma. The affidavit in support of the petition is signed and attested at Trivandrum in the Office of the Advocate, who attested the affidavit. Under these circumstances, the Court below was right in not accepting the 2nd defendant's explanation for his non-examination as a witness in Court. P. W. 1 is a Senior Assistant of the plaintiff-Company. He has deposed that defendants 1, 3 and 4 signed Ext. A-4 and assured the plaintiff that the 2nd defendant would come and sign the document the next day. Since he did not turn up a letter was despatched requiring him to come to the plaintiffs office on 28-8-1970 and sign the undertaking Ext. A-6. Ext. A-5 dated 22-8-1970 is the copy of the letter sent by the plaintiff to the 2nd defendant requesting him to come on 28-8-1970 to sign the undertaking. Ext. A-6 is dated 28-8-1970. That refers to Ext. A-4. Even though the date of Ext. A-4 mentioned in Ext. A-6 is different, P. W. 1 has explained that it is only due to a mistake that the date of Exhibit A-4 is shown as 28-8-1970 instead of 21-8-1970. Under these circumstances, we have no hesitation to hold that Ext. A-6 is a document duly executed by the 2nd defendant. On the evidence adduced in the case, we are also satisfied about the truth of the contents of Ext. A-6, proved by the production of the document itself. The document is proved by P. W. 1. We do not see any valid reason to discredit his testimony. The Court below was therefore perfectly right in decreeing the suit against all the defendants.

The appeal fails and is dismissed with costs.


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