IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 15 of 2008()
1. N. BALAN, AGED 57 YEARS,
... Petitioner
Vs
1. V. NISHA, D/O. BALAN NAIR,
... Respondent
2. BALAN NAIR VALLANCHERRY, AGED 66 YEARS,
For Petitioner :DR.K.B.MUHAMED KUTTY (SR.)
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/10/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.15 of 2008
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Dated this 11th day of October, 2010
ORDER
Admit. This revision is in challenge of judgment of learned
Sub Judge, Koyilandy in A.S.No.26 of 2003 confirming judgment
and decree of learned Munsiff, Koyilandy in O.S.No.275 of 2000.
That is a suit filed by respondent No.1/plaintiff allegedly within
the period of three years of her attaining majority for recovery of
money based on a deposit allegedly made on 01-09-1989.
According to respondent No.1, at a time when she was a minor
her father (respondent No.2/defendant No.2) deposited
Rs.7,043.75/- with petitioner on 01-09-1989 and on 05-09-1989,
petitioner executed Ext.A1, demand promissory note in favour of
respondent No.1 undertaking to pay the said sum to respondent
No.1 with interest @15% per annum. She filed the suit allegedly
within three years of her attaining majority alleging that in spite
of Ext.A2, notice dated 09-11-2000 (served on petitioner as
proved by Exts.A2(a) and A2(b)) petitioner has failed to pay the
amount. Petitioner contended that the suit is barred by limitation
since the deposit was made by respondent No.2. Petitioner also
disputed that demand promissory note was issued in the name of
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respondent No.1. Learned Munsiff found based on Ext.A3, copy
of S.S.L.C book of respondent No.1 that the suit is instituted
within three years of her attaining majority and granted a decree
for payment of money in her favour. That was confirmed by the
learned Sub Judge in A.S.No.26 of 2003. It is contended by
learned counsel for petitioner that the suit based on Ext.A1,
demand promissory note is not maintainable since it cannot be
described as a promissory note. The document does not bear the
required stamp as on 01-09-1989 and it is not properly cancelled.
Learned counsel for respondent No.1 has supported the judgment
of appellate court confirming that of the trial court.
2. I have gone through Ext.A1, promissory note. It
contains an unconditional undertaking to pay the amount
mentioned therein on demand with interest @15% per annum.
Hence it cannot be said that Ext.A1 is not a promissory note. It is
contended that stamp affixed on Ext.A1 is 20paise denomination
which is not sufficient. Learned counsel for petitioner contends
that on 01-09-1989 the stamp liable to affixed was of 25paise
denomination. It is also contended that the stamp is not properly
cancelled and the stamp as could be distinguished from the paper
on which Ext.A1 is written is fresh which indicate that the stamp
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is later affixed. I do not find any such contention raised by
petitioner in his written statement nor has the promissory note
being challenged in the written statement for any reason
whatsoever. I find from the copy of the plaint that the suit is not
based on Ext.A1, promissory note. On the other hand the suit is
based on the original cause of action of deposit on 01-09-1989
which is not disputed by the petitioner. Hence whatever
inadequacy Ext.A1 allegedly has would not affect maintainability
of the suit as it is based on original cause of action.
3. Yet another contention advanced is that suit is barred
by limitation since the deposit was in the name of respondent
No.2 and it is not filed within the time prescribed. Petitioner did
not produce document to show that deposit was in the name of
respondent No.2/defendant No.2. In the light of Ext.A1 that
contention cannot also be accepted since admittedly that
document is in the name of respondent No.1. Hence there is no
reason to disbelieve the case and evidence of respondent No.1
that deposit was also in her name though, made by her father,
respondent No.2 at a time when she was a minor. When the
deposit was in the name of respondent No.1, the only person
connected with that deposit is respondent No.1 and she alone can
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sue for the amount. The challenge to the judgment and decree of
the courts below has to fail.
Revision fails. It is dismissed. No cost.
(THOMAS P JOSEPH, JUDGE)
Sbna/-