S. NAGAPPA Vs. K. SUBRAMANYAM

JUDGEMENT

(1.) This is defendant's Second Appeal. It arises out of the judgment and decree of the if. Additional District Judge Kurnool reversing the judgment of the Subordinate Judge, Adoni. I shall refer to the parties as plaintiff and defendant for the sake of convenience. The respondent plaintiff filed the suit for recovery of a sum of Rs. 8,000.00 with interest at 18% per annum on the foot of a promissory note dt. 1-3-1977, executed by the defendant. In spite of demands the defendant has not paid the amount. According to the plaintiff, the defendant is not a small farmer and he is a Kirana Merchant and as such Act 7 of 1977 is not applicable. As he is not an agriculturist, the rate of interest cannot be scaled down. The defendant-appellant resisted the suit by contending inter alia that it is true that he borrowed a sum of Rs. 8,000.00 and executed a pro-note on 1-3-1977. But, he repaid an amount of Rs. 3,627.00 on 28-1-78 and Rs. 3,050./- on 14-4-1978. Since the plaintiff has not brought the pro-note, no endorsement was made on the same. But he took the signatures of the plaintiff in the account books maintained by him. Along with the written statement, he filed copies of relevant entries in the accounts register. Thus-according to the defendant he paid Rs. 6,667.00 towards the pro-note amount. It is also stated that the plaintiff owes an amount of Rs. 120.00 having borrowed on 10-10-1976 and also a sum of, Rs. 100.00 towards purchase of sundry articles supplied by the defendant and a sum of Rs. 43.00 was lent to the plaintiff's wife and the said amounts should be given credit. The defendant further contended that he is a small farmer with in the meaning of Act 7 of 1977 and entitled to the benefits of the Act and the interest is liable to be scaled down as he is an agriculturist. On these pleadings the trial Court framed as many as five issues:

(2.) The trial court, in support of its findings, that the defendant made the two payments, relied upon the following circumstances; prior to the filing of the suit, the plaintiff issued notice Ex. A-2 to which the defendant gave a reply Ex. B.5. In the said notice itself, it was mentioned that the defendant made the two payments. The signatures of the plaintiff in the account books of the defendant Ex. B-1 and B-2 were filed along with the written statement. There was no rejoinder by the plaintiff, denying the same. The amounts paid by the defendant were entered in the ledger Ex. B-2. Since the plaintiff denied his signatures on Ex. B-1 and B-2 in the account books of the defendant, the defendant sent the signature for examination to a handwriting expert for comparison with the admitted signatures. The hand-writing expert examined as D.W.2 opined that the signatures are that of one and the same person and they tally with the admitted signatures. The plaintiff did not send the documents to any expert for examination and according to the defendant the expert consulted by the plaintiff opined that the signatures are that of the plaintiff and as such the palm tiff did not examine the second expert as he would not have supported his case. The trial court relied upon the fact that there is no specific, denial of the signatures of the plaintiff in Ex. B-f and B-2, coupled with the expert evidence. The trial Court also compared the signatures in Exs. B-1 and B-2 and the admitted signatures and, observed that they appear to be of one and the same person to the naked eye. The contention of the plaintiff that the expert's evidence is only an opinion evidence and cannot be relied upon was considered by the trial' court who said that the expert's evidence is only an additional circumstance along with the other intrinsic evidence available. These are the reasons given by the trial court for holding that the two payments i.e. Rs. 3,627 and Rs. 3,050.00 totalling Rs. 6,677.00 are true.

(3.) The plaintiff preferred an appeal to the 2nd Additional District Judge, Kurnool. The defendant has not preferred any cross-objection with regard to the findings against him and the only question for consideration before the 2nd Additional District Judge was whether these two payments are true. The learned appellate Judge had reversed the decision of the trial Court on the following grounds : that, to the notice Ex. A-2 given by the plaintiff the defendant issued a reply notice Ex. B-5 after two months and this delay is fatal to the case. On the face of it, the two months' time taken for giving the reply cannot be said to be any delay at all. On the other hand, the plaintiff filed the suit on 23-2-1980 i.e., nine months, after the reply notice is given. Therefore, giving of a reply notice by defendant two months after the plaintiff's notice, is absolutely irrelevant for judging the merits of this case. The second reason given by the learned Additional District Judge was that there were no attestors for Ex. B-1 and B-2. I have not come across a case where there are attestors for entries in the account books. The entries are in account books. Hence the reasoning that there are no attestors for Ex. B-1 and B-2 cannot be a valid ground at all for rejecting the said entries. Another reason given by the learned Additional District Judge was that no endorsements were made on the pro-note. It is true that there were endorsements on the pro-note. But, the defendant explained that the plaintiff did not bring the pro-note and precisely for that reason his signature was taken in the account books. The question for consideration is whether those signatures are true. It is not an inflexible rule of law that, in every case of payment, there should be an endorsement on the pro-note itself. Normally it is done. But the non-endorsoment can be explained. If Ex. B-1 and B-2 are true, the question of no endorsement on the pro-note is of no relevance. The criticism of the accounts books by the learned Additional District Judge is wholly unsatisfactory. He says all the other entries are only for Rs. 200.00 500.00 and 100.00and hence these two entries which run into thousands may not be correct. The appellate Judge further says that Ex. B-1 might have been manipulated since there is some blank space at the bottom on some of the pages in the account books. In order to satisfy myself I have examined the account books and entries in Ex. B-I and B-2. There does not appear to be any manipulation at all. Further the trial Court examined Exs. B-1 and B-2 entries and compared them with the admitted signatures and observed that they appear to be the signatures of one and the same person to the naked eye. This is criticised by the learned appellate Judge for no reasons whatsoever.