High Court Kerala High Court

Stanley Jose vs Nual And Others on 22 July, 2009

Kerala High Court
Stanley Jose vs Nual And Others on 22 July, 2009
       

  

  

 
 
  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

A.S.No.157 & 169 OF 1996 – B
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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

A.S.No.157 & 169 OF 1996 – B
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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

A.S.No.157 & 169 OF 1996 – B
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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

A.S.No.157 & 169 OF 1996 – B
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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