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Mahesh Chandra S/O Late Jagdishchandra Agrawal Vs. Kamal Kumar S/O Shantilal Kala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh Indore High Court
Decided On
Case NumberFirst Appeal No.577/2005
Judge
ActsLimitation Act, 1963 - Section 18; Evidence Act - Section 73
AppellantMahesh Chandra S/O Late Jagdishchandra Agrawal
RespondentKamal Kumar S/O Shantilal Kala
Appellant AdvocateShri Vishal Baheti, Adv.
Respondent AdvocateShri V.K. Jain, Adv.
Cases Referred(State (Delhi Administration) v. Pali Ram
Excerpt:
.....to the plaintiff and that the defendant executed a receipt under his own signature on his letterhead about having received rs.50,000/-. plaintiff in paragraph 2 of his statement recorded on oath, has stated that the defendant had received rs.50,000/- as loan from the plaintiff and had executed an acknowledgment vide the receipt dated 05.01.2000. plaintiff himself in paragraph 2 of his statement has described receipt contained in ex.p/1 as an acknowledgment. in the entire case, plaintiff has not disclosed date of advancement of loan of rs.50,000/- to the defendant. .....on oath, has stated that the defendant had received rs.50,000/- as loan from the plaintiff and had executed an acknowledgment vide the receipt dated 05.01.2000. 7. on perusal of ex.p/2, it is found that the defendant, as per this document, has acknowledged to have received rs.50,000/-. the receipt contained in ex.p/1 is dated 05.01.2000 whereas it has been mentioned that the loan would be repaid on the date of receipt i.e. on 05.01.2000. plaintiff himself in paragraph 2 of his statement has described receipt contained in ex.p/1 as an acknowledgment. plaintiff even in his statement on oath has nowhere stated about the date on which the alleged loan was advanced. in the demand notice ex.p/2, it has been clearly stated that rs.50,000/- were already received by the defendant on interest at.....
Judgment:

1. This first appeal has been preferred by the plaintiff against dismissal of his money suit for recovery of Rs.64,000/- by the Court of 15th ADJ, Indore vide judgment and decree dated 16.08.2005 passed in Civil Suit No.13-B/2005.

2. Briefly stated relevant facts are that the plaintiff/appellant instituted a suit for recovery of Rs.64,000/- with allegations that the defendant, on account of his need, received a sum of Rs.50,000/- for his business in the name and style of M/s. Neha Pulses and executed a receipt in his own handwriting and under his own signature on 05.01.2000 on his letterhead. Interest was orally agreed at the rate of 1.50% per month. Defendant did not make the repayment. Consequently, demand notice was issued by the plaintiff to the defendant on 06.07.2001. Service was avoided by the defendant and consequently, notice came back unserved. Thus, the plaintiff instituted suit for Rs.64,000/-, which included interest to the tune of Rs.13,750/- and notice expenses Rs.250/-.

Defendant, after being served with the summons, submitted his written statement refuting thereby averments contained in the plaint. He, inter-alia, stated that he had no acquaintance with the plaintiff and further, he had no need of money. It has been stated specifically that defendant has not obtained money from the plaintiff and did not execute the alleged receipt. Plaintiff has prepared it by forgery.

3. In the evidence, plaintiff examined himself and handwriting expert, namely, Harbans Singh Tuteja. On the other hand, defendant examined himself alone. After appreciating the evidence on record, learned trial Judge dismissed the suit of the plaintiff holding that plaintiff failed to prove that the defendant had obtained a lone of Rs.50,000/- from him. Needless to state that the statement as well as the report of the handwriting expert were also not believed. Aggrieved by the aforesaid judgment and decree dated 16.08.2005, this appeal has been preferred.

4. Shri Vishal Baheti, learned counsel appearing for the appellant and Shri V.K. Jain, learned counsel for the respondent made their respective submissions.

5. It has been contended on behalf of the appellant that plaintiff has proved his case vide his own statement and by handwriting expert. Learned trial Judge has committed an error in disbelieving them. According to the learned counsel for the appellant, findings recorded by the learned trial Judge are contrary to the evidence on record and are liable to be set aside.

Shri V.K. Jain, learned counsel appearing for the defendant/respondent supported the impugned judgment and decree. He drew attention of this Court to various discrepancies in the statement of handwriting expert, which made his report untrustworthy. According to Shri V.K. Jain, learned counsel, the suit has been rightly dismissed and needs no interference.

6. Without entering much in the controversy, as agitated by the rival parties, it is observed that the case in hand needs to be dealt with from altogether another angle in view of the pleadings and material on record. Although the plaintiff has pleaded that the defendant has received Rs.50,000/- from him, he has nowhere pleaded the exact date of advancement of loan of Rs.50,000/-. He has not specified that loan of Rs.50,000/- was advanced on 05.01.2000 when the receipt was allegedly executed in his favour by the defendant. This is more explicit from the notice of demand contained in Ex.P/2. It is clearly stated in the said notice that the defendant had received Rs.50,000/- on interest at the rate of 1.50% PM for the business of firm M/s. Neha Pulses (sole proprietorship business of the defendant), which was to be repaid on 05.01.2000. It is further stated in Ex.P/2 that interest up to 05.01.2000 was paid by the defendant to the plaintiff and that the defendant executed a receipt under his own signature on his letterhead about having received Rs.50,000/-. Again in paragraph 2 of the notice contained in Ex.P/2, it is clearly mentioned that repayment was to be paid on 05.01.2000 and such repayment was not made despite repeated demands. Plaintiff in paragraph 2 of his statement recorded on oath, has stated that the defendant had received Rs.50,000/- as loan from the plaintiff and had executed an acknowledgment vide the receipt dated 05.01.2000.

7. On perusal of Ex.P/2, it is found that the defendant, as per this document, has acknowledged to have received Rs.50,000/-. The receipt contained in Ex.P/1 is dated 05.01.2000 whereas it has been mentioned that the loan would be repaid on the date of receipt i.e. on 05.01.2000. Plaintiff himself in paragraph 2 of his statement has described receipt contained in Ex.P/1 as an acknowledgment. Plaintiff even in his statement on oath has nowhere stated about the date on which the alleged loan was advanced. In the demand notice Ex.P/2, it has been clearly stated that Rs.50,000/- were already received by the defendant on interest at the rate of 1.50% PM, which was to be repaid on 05.01.2000. Thus, even according to the plaintiff, it was a past liability and its acknowledgment ought to have been made before expiration of the prescribed period of limitation for money suit, as required under Section 18 of the Limitation Act, 1963. Section 18 is reproduced here-in-below for convenience: -

"18. Effect of acknowledgment in writing.-(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Explanation.- For the purposes of this section,-

(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;

(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf; and

(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.”

8. In the entire case, plaintiff has not disclosed date of advancement of loan of Rs.50,000/- to the defendant. Demand notice contained in Ex.P/2 was issued by the plaintiff himself through his lawyer and has been produced in the civil suit by the plaintiff, whose contents are obviously binding on him. It may be seen further that the plaintiff has not proved the original transaction of advancement of loan by him to the defendant. He has not placed on record any ledger (ROKAD & BAHI) to establish that any such kind of loan was advanced by him to the defendant within a period of three years prior to Ex.P/1. Although he has admitted that he is income tax payee, he did not submit his income tax returns pertaining to the relevant period of past three years. He has nowhere pleaded that Ex.P/1 was executed with intent to make a promise to pay. There is no pleadings in the plaint about any kind of promise to make payment having been made by the defendant on 05.01.2000. On the contrary, a receipt is stated in the plaint to have been executed by the defendant on his letterhead under his own handwriting and signature on 05.01.2000. In paragraph 9 of the plaint, cause of action is stated to have been arisen on account of alleged acknowledgment-cumreceipt having been executed and handed over by the defendant to the plaintiff. There is no averment in the paragraphs pertaining to cause of action about any promise to pay having been made by the defendant and further failure on his part in this regard. It is significant to note that no suggestion was put to the defendant in his cross-examination about having made any promise to pay vide Ex.P/1. Although the plaintiff in his statement has stated that the defendant assured him of repayment on 05.01.2000, it is observed that Ex.P/1 is said to have been executed on 05.01.2000 itself. Had there been any assurance by the defendant to make repayment on 05.01.2000, plaintiff, instead of getting executed Ex.P/1, would have realised the money itself. Thus, from the pleadings and evidence on record, it is clear that Ex.P/1, as per the case of the plaintiff and/or material on record itself, it not stated to have been executed with intent to make any promise to pay and is also equally not proved to have been executed by the defendant with intent to make any such promise. This being so, it was obligatory on the part of the plaintiff to prove in a case like the one in hand, that advancement of loan was made within three years prior to Ex.P/1 and that, acknowledgment of past liability was made by the defendant vide Ex.P/1. I may here successfully quote the following observations of the Supreme Court appearing in the decision of the case between Sampuran Singh and others v. Smt. Niranjan Kaur and others reported as AIR 1999 Supreme Court 1047: -

"Thus, the acknowledgment, if any, has to be prior to the expiration of the prescribed period for filing the suit in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgment."

9. Thus, the plaintiff having failed to establish original transaction of loan, and further the acknowledgment of such loan before expiry of the prescribed period of limitation of three years, is found to have been rightly non-suited.

10. It is true that learned trial Judge did not raise any issue on the question of limitation. However, it is observed that the plaintiff in paragraph 6 of the plaint has stated that the suit is within limitation. This having been refuted by the defendant in paragraph 6 of the written statement, it was, in order to obtain a decree, obligatory on the part of the plaintiff to prove that the alleged acknowledgment was executed within three years from the date of original loan transaction, as observed already, plaintiff has failed to discharge his burden. This apart, Section 3 of the Limitation Act cast a duty on a Court of law to dismiss a suit instituted, after the prescribed period of limitation, although limitation has not been set up as defence. In the case in hand, limitation is found to have taken as a plea of defence in paragraph 6 of the written statement. This being so, the suit of the plaintiff, in the facts and circumstances of the case, could not have been legally decreed.

11. Now coming to the merits of the contentions advanced by the rival parties, it may be seen that the alleged transaction of advancement of loan of Rs.50,000/- between plaintiff and defendant and further the acknowledgment about it, has not been established by the plaintiff by independent witnesses. As regards plaintiff's own statement, he has admitted that he is an income tax payee and is not possessed of any record about the loan having been advanced to the defendant. He has neither submitted his income tax returns nor ledgers containing any such entry of loan to the defendant. Although he has examined Shri Harbans Singh Tuteja as handwriting expert, statement of handwriting expert is not found believable, for various reasons mentioned in the impugned judgment. On perusal of Ex.P/1 and specimen contained in Ex.S-1/1 to S-4/1, it is revealed that the letter 'v' appearing in Ex.P/1 is written in one movement without pen lift at four places. It is found to have contained a loop whereas letter 'v' contained in the specimen handwriting marked as Ex.S-1/1 to Ex.S-4/1 appears to have been made by pen lift as well with no loop. Although the handwriting expert has explained the difference on account of change in speed, but the same being the basic habit of writing, is not found to have appeared merely due to change in speed of writing. In paragraph 17 of his cross-examination, handwriting expert has admitted that there is difference in ß:i;s 50][email protected]&Þ Ex. P/ 1 in comparison to Ex.S-1 and S-2, but the same has been explained on account of change in writing speed. Learned trial Judge was not convinced with the reasons assigned by the handwriting expert, for the reasons assigned in the impugned judgment itself. Opinion of the handwriting expert is not conclusive, but may be rebutted by making out different discrepancies/shortcomings in the process pertaining to the examination of disputed document with reference to the specimen/standard handwriting and signatures. Merely because the handwriting expert has given his opinion, powers of the Courts are not curtailed, while examining documents with reference to the pleadings and other material on record.

12. Learned counsel for the appellant contended that the defendant/respondent has not dared to say that letterhead containing signatures Ex.P/1 is not related to his firm. In respect of it, it may be seen that the plaintiff having failed to prove Ex.P/1, is not entitled to a decree for recovery since he has not approached the Court with complete and requisite pleadings.

13. Learned counsel for the appellant, placing reliance on AIR 2003 SC 1796 (Lalit Popli v. Canara Bank and others), contended that the statement of handwriting expert is not totally irrelevant and the same ought to have been accepted. Suffice it to say that the respondent has been able to demonstrate the lacunas in the report (Ex.P/5), which made the report untrustworthy. Although Court did not reach on a conclusion about forgery allegedly committed by the plaintiff, but it is equally true that an unfounded claim of money without proving the original transaction cannot be accepted, on the basis of such a report and scanty evidence. Accordingly, it is held that the learned trial Judge has not committed any mistake or illegality in dismissing the suit of the plaintiff.

14. Learned counsel for the appellant made a request to this Court to examine the documents in exercise of powers under Section 73 of the Indian Evidence Act.

It is suffice to say that in the facts and circumstances, it is not desirable to examine the disputed document by the Court having no expertise in the field. I may successfully refer to decision of this Court in the case of Narayan Prasad v Ambikaprasad (1963 JLJ Short Note 291) wherein it has been observed by this Court that the comparison of signatures by Court in exercise of powers under Section 73 of the Indian Evidence Act is hazardous and it should be left for the experts. I may also successfully refer to the decision of the Apex Court (1) AIR 1997 SC 3255 (Ajit Savant Majagavi v. State of Karnataka) and (2) AIR 1979 SC 14 (State (Delhi Administration) v. Pali Ram) that as a matter of extreme caution and judicial propriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts.

15. In the result, the appeal is found to have no substance and the same is hereby dismissed, however, with no order as to costs.

C. c. as per rules.


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