IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 276 of 2000(A)
1. ANTO
... Petitioner
Vs
1. LAKSHMIKUTTY
... Respondent
For Petitioner :SRI.JIJO PAUL
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/10/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 276 OF 2000
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Dated this the 19th day of October, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the Subordinate
Judge, Thrissur in O.S.1433/94. The suit is
one for realisation of the amount due under a
promissory note. It is the case of the
plaintiff that the first defendant had borrowed
a sum of Rs.45,000/- and had executed a
promissory note and in spite of demand the
amount has not been given, hence the suit. The
sole defendant died and his legal
representatives are impleaded as supplemental D2
to D6. The contention of the contesting
defendants are to the effect that the first
defendant has not borrowed any amount. The
plaintiff has brought two ladies for the purpose
A.S. 276 OF 2000
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of accommodation and the first defendant granted
them accommodation. They wanted an amount of
Rs.5,000/- and the plaintiff had given to them
at the instance of the defendant and at that
time the plaintiff had taken blank signed papers
and it is making use of the same the suit has
been filed.
2. In the trial court PW1 and DWs.1 to 3
were examined and Exts.A1 to A4, B1 and X1 to X4
were marked. On an analysis of the materials
the trial court dismissed the suit. The trial
court felt that the promissory note is not
properly proved. The Court also found that the
signature overlaps partly on the revenue stamp.
It is the opinion of the trial court that “So at
the first blush, it would appear that the person
who signed the instrument has not written the
body of the promissory note.” When there is a
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specific denial of the execution of the
promissory note it was imperative on the part of
the plaintiff to adduce satisfactory evidence
before the trial court. The Court also found
that the two ladies namely Omana and Nalini who
were alleged to be the persons had not been
examined at all. The Court further held that it
is the case of the plaintiff that he had
withdrawn the amount from the savings bank
account and from the Bank it can be seen that
the plaintiff had savings bank account No.1258
with South Indian Bank, Viyyur Branch. The pass
book shows that he had only a balance of
Rs.163/- on 10.3.93 and on 1.7.93 also the same
amount. But it was argued that the plaintiff
had taken a loan from the Bank on 18.6.93 and
therefore the source is proved. The trial court
has held that he had borrowed a sum of
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Rs.50,000/- for a specific purpose with a
stipulation to pay interest at the rate of 18.5%
to the Bank. Under ordinary circumstances a
person who had borrowed an amount at the rate of
18.5.% interest is not expected to disburse that
amount to another person at the rate of 10%. It
cannot be so especially when the plaintiff is a
money lender. The Court below also looked into
the account of the Viyyur Service Co-operative
Bank ltd where also the balance amount on his
account was Rs.3,795/-. So the S.B.Account, the
loan account and the co-operative society
account all would reveal that the plaintiff did
not have a bank balance of Rs.45,000/- to
advance the amount. It becomes important for
the reason that it is the specific case of the
plaintiff that he had withdrawn the amount from
the Bank and advanced it as loan. So in the
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absence of any evidence to prove the execution
of Ext.A1 and the surrounding circumstances such
as absence of amount in the S.B. account etc.
would lead to only one conclusion that the
plaintiff has not succeeded in proving that the
first defendant had executed a promissory note
and borrowed a sum of Rs.45,000/-. I do not find
any ground to entertain this appeal. Therefore
the appeal is dismissed but without costs.
M.N. KRISHNAN, JUDGE.
ul/-
A.S. 276 OF 2000
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M.N. KRISHNAN, J.
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A.S. No.276 OF 2000
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J U D G M E N T
19th October, 2010.