IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 76 of 1996(5)
1. VEERANDI @ KUNJUKUTTAN
... Petitioner
Vs
1. BALAMEENAKSHI
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :10/01/2008
O R D E R
K.T.SANKARAN, J.
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S.A. NO. 76 OF 1996 A
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Dated this the 10th January, 2008
JUDGMENT
The defendant in O.S.No.145 of 1991, on the file of the Court of the
Munsiff of Alathur, is the appellant in this Second Appeal. The suit was
filed by the respondent for realisation of a sum of Rs.11,000/- due from
the defendant on the basis of Ext.A1 promissory note. The trial court
dismissed the suit. On appeal by the plaintiff, the Lower Appellate Court
reversed the judgment and decree of the trial court and decreed the suit
as prayed for.
2. The case of the plaintiff is that the defendant borrowed a sum of
Rs.11,000/- from her on 25.12.1988 and executed Ext.A1 promissory
note. The amount was borrowed for the purpose of the grocery business
of the defendant. The case of the plaintiff is that the defendant was
working as a cattle boy in the plaintiff’s house for quite long time and
when he desired to start a business, the amount was given as a loan to
the defendant. The defendant denied the execution of Ext.A1 promissory
note and also denied the loan transaction. His case is that the plaintiff
used to purchase goods from his shop and that a sum of Rs.1,180/- was
due from her. When the amount was demanded, the plaintiff did not pay.
S.A. NO.76 OF 1996
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There was a quarrel on account of the same. The suit was filed by the
plaintiff in such circumstances.
3. Before the trial court, the plaintiff was examined as PW1 and
one Ramakrishnan, who is alleged to have witnessed the transaction, was
examined as PW2. The defendant was examined as DW1. The trial
court dismissed the suit on the ground that Ext.A1 promissory note was
not confronted to the defendant when he was cross examined by the
plaintiff. It was held therefore, that it is to be taken that there was no
cross examination of the defendant regarding execution of the promissory
note. The Appellate Court considered the documentary and oral evidence
in the case in great detail and held that the defendant has executed
Ext.A1 promissory note and a sum of Rs.11,000/- was borrowed by him
from the plaintiff. The decision was arrived at by the court below on
appreciation of evidence and after analysing the facts and circumstances
of the case.
4. The following substantial questions of law are formulated in the
Second Appeal:
“i) In a suit based on a promissory note, when execution
of the promissory note is denied, whether the plaintiff
is bound to prove the handwriting and signature found
in the document to be that of the defendant before
the plaintiff can succeed in the suit.
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ii) When the witness examined to prove execution of a
document admits that he does not know the contents
of that document, whether his evidence can be relied
on to prove execution of that document.
iii) Whether the uncorroborated testimony of the plaintiff
is sufficient to prove execution of a disputed
document.
iv) Whether the absence of any expert evidence
regarding the handwriting and/or signature in a
disputed document raises an adverse inference under
Section 114(g) of the Evidence Act.”
5. Learned counsel for the appellant submitted that the execution
of Ext.A1 is not proved in accordance with law. He submitted that the
signature in Ext.A1 is not proved to be that of the defendant. Though
PW2 was examined as a witness to the transaction, he has not identified
the signature of the defendant in Ext.A1. Learned counsel also submitted
that PW2 is an interested witness and he belongs to the same political
party in which the plaintiff’s husband is a member. It is also submitted
that the scribe of Ext.A1 was not examined and the best evidence was not
produced before Court.
6. Learned counsel for the respondent, on the other hand,
submitted that on a reading of the evidence of PWs.1 and 2, it can be
seen that Ext.A1 was executed by the defendant. The specific case of the
plaintiff is that the defendant was working in the plaintiff’s house as a
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cattle boy for about ten years. When PW1 was cross examined, the
defendant has not disputed the same by putting necessary questions.
When the defendant was examined as DW1, he has not denied the same
in the chief examination. In the cross examination, DW1 stated that he
had not instructed the counsel to put questions to PW1 in cross
examination touching upon this matter. Learned counsel for the
respondent also submitted that the substantial questions of law
formulated in the Second Appeal do not really arise for consideration, in
the facts and circumstances of the case, and the court below was right in
passing a decree in favour of the plaintiff.
7. The question involved in the case is whether the defendant had
borrowed Rs.11,000/- from the plaintiff after executing Ext.A1 promissory
note. According to the plaintiff, the defendant was working as a cattle boy
in her house for about ten years. This is not denied by the defendant.
When PW1 was examined, no question was put to her touching on this
aspect. The defendant has not stated anything in his chief examination
denying this case of the plaintiff. That shows that the defendant was
working as a servant in the house of the plaintiff. It is not denied that the
defendant started business in 1988 or 1989. It is only probable that he
would have asked for a loan from the plaintiff. It is also natural that the
plaintiff would have lent money to the defendant in the peculiar facts and
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circumstances of the case.
8. The plaintiff stated in evidence that the promissory note was
written by Narayanan Kutty, a document writer in the locality, and the
transaction was witnessed by PW2 Ramakrishnan. Ramakrishnan is
admittedly a political activist. It is also proved that the plaintiff’s husband
is a sympathiser of that political party. It is suggested by the defendant
that the defendant joined another political party and because of that
enmity PW2 deposed against the defendant. I have gone through the
evidence of PWs.1 and 2 and DW1. On going through the evidence and
Ext.A1, I concur with the view taken by the court below. It is also relevant
to note that a lawyer notice was sent to the defendant before instituting
the suit. There was no reply to the said notice. The explanation offered
by the defendant for not sending a reply is that no amount was due from
him to the plaintiff and, therefore, he did not send any reply. It is difficult
to accept this explanation. Failure to send a reply to Ext.A2 lawyer notice
is an important circumstance to see whether the case of the defendant is
true and genuine and also in considering whether the case of the plaintiff
that the amount was advanced to the defendant is true or false. The
totality of the facts and circumstances of the case was taken note of by
the court below and it came to the conclusion that the promissory note
was executed by the defendant and amount was borrowed by him. It is
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true that Ext.A1 was not confronted to the defendant while he was cross
examined. It was also not confronted to PW2 and he has not stated that
the signature of the defendant is seen in Ext.A1. But the evidence of
PW2 would indicate that there was a money transaction between the
plaintiff and defendant and that he was present on that occasion. The
evidence of PW2 would also indicate that the promissory note was written
by Narayanan Kutty and that it was signed by the defendant at the
residence of PW1 in the presence of PW2. When the oral evidence is
considered as a whole, it cannot be said that the view taken by the court
below is either perverse or illegal. The substantial questions of law
framed in the Second Appeal do not really arise for consideration in the
Second Appeal as the execution of the document is proved by the
evidence of PWs.1 and 2.
9. For the aforesaid reasons, I do not find any ground to interfere
with the well considered judgment passed by the court below. However,
taking into account the peculiar facts and circumstances of the case, I am
of the view that the interest awarded is excessive. The court below has
awarded interest at the rate of 12% from the date of suit till the date of
decree and at 6% from the date of decree till realisation. I am inclined to
reduce the interest payable from the date of suit to the date of decree
from 12% to 7.5%.
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In the result, the Second Appeal is partly allowed and the judgment
and decree passed by the court below is modified only to the extent of
reducing interest from 12% to 7.5% for the period from the date of
institution of the suit to the date of decree. In all other respects, the
judgment and decree of the court below shall stand confirmed. No order
as to costs.
(K.T.SANKARAN)
Judge
ahz/
K.T.SANKARAN, J.
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S.A..NO. 76 OF 1996 A
JUDGMENT
10th January, 2008
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