IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 335 of 1997(8)
1. ALICE
... Petitioner
Vs
1. JOHN @ JOY
... Respondent
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.C.J.JOY
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :14/10/2009
O R D E R
HARUN-UL-RASHID,J.
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A.S.NOS.335 OF 1997 & 456 OF 1998
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DATED THIS THE 14TH DAY OF OCTOBER, 2009
JUDGMENT
These appeals arise out of the judgment and decree in
O.S.Nos.38/95 and 505/94 respectively on the file of the Sub
Court, Pala. The parties in both the suits are same. The suits
were filed for realisation of money based on Ext.A1 promissory
note. The trial court decreed the suit with costs in O.S.No.38/95.
The plaintiff was given a decree to realise a sum of Rs.56,755/-
with future interest at the rate of 12% per annum on the principal
sum of Rs.42,925/- from the date of suit till realisation. A decree
for permanent prohibitory injunction was also passed restraining
the defendant from felling and removing the standing timber
trees in the plaint schedule property till the amount with interest
is paid to the plaintiff. O.S.No.505/97 was decreed allowing the
plaintiff to realise a sum of Rs.66,466/- with interest at the rate of
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6% per annum from the date of suit till its realisation of the
amount with costs. Aggrieved by the respective decrees and
judgments passed in the said suits, the defendant has come up in
appeal. The parties hereinafter referred to as plaintiff and
defendant as in the suits.
2. O.S.No.38/95 was filed stating that on 30/3/1991 the
defendant executed a promissory note for the value received in
favour of the plaintiff agreeing to pay on demand a sum of
Rs.42,925/- with interest at 12% per annum. According to the
plaintiff, in spite of repeated demands, the defendant failed to
repay the amount. Hence the suit. Connected suit O.S.No.505/94
was also filed more or less on the same set of facts. The date of
execution of the promissory note in that suit is 1/3/1991.
3. Defendant denied the execution of promissory note
on the dates alleged by the plaintiff in the respcctive suits and
further contended that she did not receive any money from the
plaintiff and therefore she is not liable to pay the amount
claimed. It is also contended that promissory note is a fabricated
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document fraudulently created by the plaintiff with the intention
of causing harm and injury to the defendant and it is devoid of
any consideration.
4. The evidence consists of oral testimonies of the
plaintiff and one attesting witness, who were examined as PWs.1
and 2 and Exts.A1 to A4 were marked on the side of the plaintiff.
The Defendant was examined as DW1 and attesting witnesses
were examined as DWs.2 and 3 and Exts.B1 to B1(a) and B2
were marked on the side of the defendant. In O.S.No.505/94 the
plaintiff and defendant examined the very same witness and
Exts.A1 and A2 were marked. The trial court framed the very
same issues in the light of the contention.
5. According to the plaintiff, Ext.A1 in both the suits is
the promissory note executed by the defendant in favour of the
plaintiff and that the defendant received considerations stated in
the respective promissory notes. Plaintiff tendered evidence as
PW-1 testifying that the allegation of the defendant that the
promissory note is a fabricated one was put forward to evade
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payment, since the husband of the defendant, who is the lst
witness to the promissory note, is no more. He also testified
before the court that Ext.A1 in the respective cases is the pro
note executed by the defendant on the respective dates pleaded in
the plaint. PW-2 is an attesting witness to Ext.A1. He is the
brother of the plaintiff. The other two witnesses to Ext.A1 are
Varkey Kurian and one Mathew. Varkey Kurian is the husband
of the defendant and Mathew is a person who has got long
association with the defendant and her family. It is the plaintiff’s
case that the amount was paid to the defendant at the instance of
his brother, who was examined as PW-2. The plaintiff testified
that his brother PW-2 and the husband of the defendant are in
good terms and it was at his instance the amount happened to be
paid to the defendant. The husband of the defendant had a very
active role in the transaction and in fact the amount was
received by the husband of the defendant and the defendant
executed Ext.A1 pro note. The attesting witness PW-2 testified
that Ext.A1 was signed by him at the Office of the Advocate at
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A.S.Nos.335/97 & 456/98
Erattupetta, that at the time when he signed Ext.A1 pro note
PW1, DW2 and the husband of the defendant were also present.
At the same time, DW2, who is also an attesting witness, testified
before the court below that he has not seen DW1 executing
Ext.A1 or receiving any amount on the respective dates. Since
the execution of Ext.A1 was denied, the court below analysed the
oral evidence tendered by the parties and also compared the
admitted signature of DW1 in his deposition, vakalath, written
statement and the objection to the attachment application with
that of the signature in Ext.A1. The court below opined that the
signatures of the defendant in Ext.A1 and in the compared
documents are one and the same.
6. Apart from contending that promissory notes are
fabricated documents and that the defendant has not received any
amount, no reasons or circumstances were stated in the written
statement for the fabrication of two promissory notes by the
plaintiff in the name of the defendant. I have gone through the
written statement filed by the defendant.
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A.S.Nos.335/97 & 456/98
Except stating that the promissory notes are fabricated
documents, there is no pleading in the written statement
explaining any circumstances on the part of the plaintiff for
fabricating two promissory notes. The specific reason stated by
the plaintiff is that he insisted for execution of promissory notes
by the defendant because her husband had so many debts. When
DW-1 was examined, she was not in a position to testify that her
husband has no debts to clear and she has given evasive answers
to the questions put to her. When examined as DW-1, she
testified that she has no idea about the extent of the property
owned by her husband nor she is aware of the extent of the
property, which her husband had sold and as to whether her
husband had any financial transactions with PW1. She was not in
a position to deny the transaction between the plaintiff and her
husband. The very case set up by the plaintiff is that the amount
was borrowed for meeting the needs of her husband.
7. The learned counsel for the appellant contended that
PW-2 is the brother of the plaintiff and therefore his evidence
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cannot be acted upon being interested testimony. I have already
stated that the evidence in this case would go to show that PW-2
and the husband of the defendant are closely known to each
other, that the husband of the defendant approached the plaintiff
and in fact he was introduced by his own brother and the
transaction was entered into between the plaintiff and the
husband of the defendant in the presence of plaintiff’s brother. He
is the only witness to Ext.A1 available for examination. The
other witness is the husband of the defendant who died on
4/9/1991. The 3rd witness Mathew is a person, who is doing his
business in the property belonging to the defendant’s family and
he told the plaintiff that he is unable to testify before the court as
his witness. Therefore, the only person, who can speak about the
transaction is the brother of the plaintiff, who was examined as
PW-2. I do not think that there is anything wrong in placing
reliance on the testimony of PW-2. PW-2 has given evidence
that he knew the husband of DW1 for about 25 years, that the
husband of DW1 approached him for money for the purpose of
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A.S.Nos.335/97 & 456/98
avoiding an attachment, that the husband of DW1 told him that it
would be repaid within one month and that PW1 agreed to pay
the amount, if a promissory note is executed by DW1. In this
connection it is relevant to note that the plaintiff as PW1 also
testified that the husband of DW1 agreed to give a promissory
note executed by DW1, that the promissory note was obtained
from DW1, since her husband had other debts and that at the time
when Ext.A1 was executed, the husband of DW1, PW1 and PW2
were present. PW2, the brother of the plaintiff, testified that he
happened to be an attestor to Ext.A1, because it was at his
instance money was paid by PW1. The trial court believed the
evidence of PWs.1 and 2. The trial court observed that since
PW2 is an attestor to Ext.A1 and he has explained the
circumstances under which he happened to be an attestor to
Ext.A1, the evidence of PW2 cannot be discarded solely for the
reason that he is the brother of PW1.
8. The trial court also examined the credibility of DW2,
who is the 3rd attestor to Ext.A1. He testified before the court
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below that he signed Ext.A1 as told by PW1 and that he knew
the payment in relation to a transaction of 1986-87 and that at
that time PW1 and the husband of DW1 were also present. The
trial court noted that DW1 has no case that there was payment of
any money in 1986-87 to her by PW1 and that no document was
executed during that period attested by DW-2. The trial court
disbelieved DW2 and held that there is every reason to come to a
safe conclusion that DW2 is swearing falsehood before the court
in order to support DW1.
9. From the evidence tendered by the parties, I find that
Ext.A1 promissory notes were executed by DW1 in favour of
PW1 on the respective dates, after receiving the consideration.
Therefore, the plaintiff is entitled to realise the amount claimed in
the plaint with interest at the rate of 12% per annum from the
date of suit till its realistion from the defendant and from her
assets.
10. The trial court also examined the evidence on record
in detail and concluded that Ext.A1 promissory notes were
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executed by the defendant after receiving consideration. The trial
court examined, analysed and discussed the evidence and other
attendant circumstances in detail and reached the conclusion that
the plaintiff is entitled to the relief as sought for in both the suits.
I do not find any reason to interfere with the judgment and decree
passed by the trial court.
In the result, the appeals fail and accordingly they are
dismissed with costs.
HARUN-UL-RASHID,
Judge.
kcv.
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A.S.Nos.335/97 & 456/98
HARUN-UL-RASHID,J.
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A.S.NOS.335 of 1997 &
A.S.NO.456 OF 1998 D
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JUDGMENT
14th October, 2009