TMI Blog2023 (8) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ending forgery. They have also taken out an application to compare the signatures, which was opposed by the plaintiffs and it was dismissed with an observation that it was for the plaintiffs to take steps to prove the signatures. The law and the point are very well settled that when there is a categorical and clear denial of the signature and allegation of forgery, it was for the plaintiffs to prove the signature by sending the suit promissory note for analysis of an expert by comparing it with admitted signatures. When the plaintiffs have not discharged their onus, then the claim based on Ex.A-2/promissory note is bound to fail. On the other hand, the plaintiff in the cross-examination evades and ducks by saying that the defendants had brought the letters after being typed and signed from outside. Therefore, Ex.A-3 to A-5 /Letters were also not proved by the plaintiffs. The only document in which the signature is obtained is Ex.A-6(series)/the memorandum of title deeds. Even though the said memorandum of title deeds can be taken as correct, especially, in the absence of any criminal complaint regarding the abduction of the first defendant, when the borrowal itself is not prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased T.K.Kuppusamy , and executed a promissory note dated 21.09.2003, agreeing to repay the same with interest at the rate of 18% per annum. The third defendant is the father of the first defendant. The fourth defendant is the brother of the third defendant. The fifth defendant is the mother of the first defendant and the wife of the third defendant. Defendants 3 to 5 guaranteed the payment of the above loan by executing guarantee letters dated 05.07.2003, 01.09.2003 and 23.07.2003 respectively. 2.1 By the guarantee letter of the third defendant, he stood as a surety for the liability of his wife Geetha , his son Kirubakaran, his daughter-inlaw, Aruna , and his daughter Vijaya . The guarantee letter executed by the fourth defendant is for his brother Kulasekaran , Geetha , Kirubakaran , Aruna Vijaya . The guarantee letter by the fifth defendant is surety for others. This apart, the third defendant deposited the document of title to his property with an intention to create an equitable mortgage by way of security for the amount due on 02.09.2003. To confirm the deposit, he executed a memorandum of deposit of title deeds on 23.09.2003. The sixth defendant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a forged document. The fourth defendant did not have any transaction with T.K.Kuppusamy and he did not agree to be a guarantor and never signed the guarantee letter dated 01.09.2003 and the said signature is not his signature. 3.4 The fifth defendant also filed a separate written statement specifically denying the signature in the guarantee letter dated 23.07.2003 and contending that it is a forged one. D. The Issues : 4. On the strength of the said pleadings, the Trial Court framed the following issues:- 1) Whether the case of the 1st defendant that the 1st defendant had borrowed money on the basis of daily, weekly Kandu from P.S.K. Finance Ltd., Salem belong to the family of T.K.Kuppusamy in 2002, 2003 and signed in blank papers, and blank promissory notes and they are used in this case for filling this case? 2) Whether the case of the defendants 1 and 3 that the signature of the defendants 1 and 3 were obtained by threat and coercion through rowdy elements and the letters for creating equitable mortgage by depositing of title deeds was created? 3) Whether the case of the defendants 3, 4, 5 that the guarantee letters dated 5-7-2003, 23-7- 2003 were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 3 to 5. There were conspicuous, deletions, erasions, and interlineations in the account book submitted by the plaintiffs. Though the Income Tax Accounts were produced, the relevant Returns which are filed, were not produced and the auditors who prepared these accounts were not examined. Thus, the Trial Court came to the conclusion that there is serious doubt in the case of the plaintiffs regarding the borrowing. 5.2 On the whole, the Trial Court found that when the previous transaction such as subscribing to the chit run by T.K.Kuppusamy are being admitted by P.W.1 himself. Even though the defendants did not give any criminal complaint, still the transaction is not proved by the plaintiff and dismissed the suit. Aggrieved by the same, the present Appeal Suit is filed before this Court. F. The Submissions : 6. Heard, Mr. K.Sivasubramanian , learned Counsel for the appellants, and Ms. R.Sasi , learned Counsel appearing on behalf of respondents Nos.1 to 3, 5 6 and Mr. M.Guruprasad , learned Counsel appearing for respondent No.4. 6.1 Mr. K.Sivasubramanian , learned Counsel appearing on behalf of the appellants would submit that firstly the first defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the Judgments in Criminal Appeals relating to the cases arising out of private complaints under Section 138 of Negotiable Instrument Act, 1881 for dishonor of cheques, would submit that against the same defendants, repeatedly and assortedly , without any reconciliation, claims have been made about borrowals and issuance of cheques, which would go to show that these were blank documents obtained by the deceased T.K.Kuppusamy , in the course of his chit transactions. Sporadically, one or two signatures obtained during the said period, is being belatedly misused and the story is woven by the plaintiff by including all the family members of the defendants so as to bind them, threaten them and extract some money from them which legally they did not owe. 6.5 The learned counsel would submit that when the second defendant had denied the signature, and even if the promissory note is partly forged in respect of the second defendant, the whole borrowal and the document would become questionable, thereby creating no liability over the same. Similarly, when the guarantee letters contain signatures and even the left thumb impression are present in two guarantee letters, in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records of the case. Upon perusal, the point which arises for consideration in this case is : Whether the plaintiffs have proved that the defendants have borrowed a sum of Rs. 10,00,000/- and executed the suit promissory note/Ex.A-2 and Ex.A-6/memorandum of deposit of title deeds creating equitable mortgage? 7.1 As far as Ex.A-2 /promissory note is concerned, the second defendant had denied his signature in the same, specifically contending forgery. They have also taken out an application to compare the signatures, which was opposed by the plaintiffs and it was dismissed with an observation that it was for the plaintiffs to take steps to prove the signatures. The law and the point are very well settled that when there is a categorical and clear denial of the signature and allegation of forgery, it was for the plaintiffs to prove the signature by sending the suit promissory note for analysis of an expert by comparing it with admitted signatures. When the plaintiffs have not discharged their onus, then the claim based on Ex.A-2 /promissory note is bound to fail. Similarly, by comparing the guarantee letters with the admitted signatures, the Trial Court has come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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