IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 157 of 1996()
1. STANLEY JOSE
... Petitioner
Vs
1. NUAL AND OTHERS
... Respondent
For Petitioner :.
For Respondent :SRI.M.P.ASHOK KUMAR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :22/07/2009
O R D E R
A.K.BASHEER & P.S.GOPINATHAN, JJ.
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A.S.No.157 & 169 OF 1996 - B
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Dated this the 22nd day of July, 2009
JUDGMENT
Basheer, J:
These two appeals are at the instance of the two defendants in a suit
for realisation of money on the strength of a promissory note.
2. The court below accepted the case of the plaintiff and decreed
the suit as prayed for, directing the defendants (father and son) to pay a
sum of Rs.2,27,942/- with 6% interest thereon from the date of suit till
realisation. The said decree and judgment are under challenge in these
two appeals.
3. The case of the respondent/ plaintiff in brief was that the
defendants had borrowed a total sum of Rs.2,05,000/- on several
occasions in connection with “the business of prawn fishing”. Defendants
executed Ext.A1, promissory note dated, December 19, 1989 for the
outstanding sum of Rs.2,05,000/- undertaking to pay the same with 6%
interest on demand. But since the defendants did not discharge the above
liability as promised, the plaintiff issued Ext.A2 lawyer notice in
September, 1991. Defendants did not choose to send any reply to the
same; nor did they discharge the liability. Hence the suit.
4. Defendants filed separate written statements. In his written
statement, defendant No.1 contended that he had not executed any
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promissory note as alleged in the plaint. It was further contended by him
that he had had no business transaction with the plaintiff. He was laid up
with rheumatism for the last several years. His son, defendant No.2, had
been looking after his affairs. His son had obtained several signed papers
from him for certain purposes. It was further contended by defendant No.1
that if the plaintiff and defendant No.2 had fabricated any document using
the signed blank papers, such a document would not be binding on him.
5. Defendant No.2 in his written statement admitted execution of the
promissory note. It was further admitted by him that he had had business
transaction with the plaintiff. According to defendant No.2, he had
obtained the right of fishing from Chellanam Neendakara padasekharam
during the relevant period and he used to supply fish to the plaintiff in the
course of their business transactions. But according to him, he was liable
to pay only Rs.5,000/- to the plaintiff when the accounts were settled.
While conceding that Ext.A1 promissory note was executed by him in
favour of the plaintiff, it was contended that the plaintiff had not paid
Rs.2,00,000/- at the time of execution of the promissory note. Defendant
contended that he was liable to pay only Rs.5,000/- and therefore prayed
for dismissal of the suit.
6. Before the trial court, the plaintiff got himself examined as PW1.
PW2 who was stated to be a witness to Ext.A1 promissory note was also
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examined on his side. Exts.A2 to A3 were also produced by the plaintiff in
the case apart from Ext.A1. The defendants were examined as DWs1 and
2. However, there was no documentary evidence on the side of the
defendants.
7. The court below, while considering the issue as to whether the
promissory note was supported by consideration, noticed that the
defendants did not have a case that they had had no business transaction
with the plaintiffs as claimed in the plaint. More importantly in his chief
examination itself defendant No.2 who was examined as DW1 in the case,
candidly admitted that he had executed the promissory note in favour of
the plaintiff. It was further conceded by him that the said promissory note
was for a sum of Rs.2,05,000/-. It was also admitted by him that the said
sum included Rs.5,000/- which he owed to the plaintiff earlier. But
according to DW1, the plaintiff did not pay him Rs.2,00,000/- though the
promissory note was executed by him. In short, defendant No.2 not only
conceded the business transaction between him and plaintiff but also
explicitly and candidly admitted execution of the promissory note. There
was also no dispute with regard to the amount indicated in Ext.A1
promissory note.
8. One contention raised by defendant No.2 before the court below
was that the plaintiff had not produced the accounts in relation to the
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business transaction between the two. But the plaintiff had explained that
after settling the accounts between him and the defendants he had not
bothered to keep the accounts with him. The above explanation was found
to be plausible and reasonable by the court below. It was further noticed
by the court below that the defendants had not taken any steps against the
plaintiff to get the promissory note revoked or cancelled, if in fact they
hade not received the amount covered under the said promissory note as
alleged by them.
9. The promissory note was admittedly executed in the year 1989.
The suit was instituted in the year 1991. Before the institution of the suit,
plaintiff had issued Ext.A2 lawyer notice to which defendants did not
choose to send any reply. Even assuming that the defendants could not
take any steps to get the promissory note revoked in the course of two
years, they could have atleast sent a reply denying the liability to pay the
amount covered under the promissory note. All these circumstances
persuaded the court below, in our view rightly to hold that the contention
raised by the defendants cannot be sustained.
10. We have carefully perused the promissory note and considered
the pleadings of the parties in the case. In our view, the court below was
justified in granting a decree in favour of the plaintiff. It is true that
defendant No.1 had raised a contention that he had not executed the
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promissory note. But PW2 the witness to Ext.A1 promissory note had
corroborated the case of the plaintiff. Moreover, as could be seen from the
evidence on record, defendant No.1 and 2, father and son, had been living
under the same roof. Though defendant No.1 had contended that he had
handed over several blank papers to his son for certain purposes, it was not
explained by him as to what those “purposes” were. There was also not
even a suggestion that his son had fabricated the document in order to
cause loss to him. His only contention was that he was bed ridden with
rheumatism and therefore his affairs were being looked after by his son.
Having considered the entire facts and circumstances of the case and
having perused the evidence available on record, we do not find any
illegality in the impugned decree and judgment. There is no merit in any of
the contentions raised by the appellants. Appeals fail and they are
accordingly dismissed with costs.
(A.K.BASHEER, JUDGE)
(P.S.GOPINATHAN, JUDGE)
jes
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A.K.BASHEER & P.S.GOPINATHAN, JJ.
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A.S.No.157 & 169 OF 1996 – B
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JUDGMENT
Dated 22nd July, 2009