{"id":128308,"date":"2005-01-12T00:00:00","date_gmt":"2005-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnankutty-vs-velayudhan-on-12-january-2005"},"modified":"2015-12-04T00:28:24","modified_gmt":"2015-12-03T18:58:24","slug":"krishnankutty-vs-velayudhan-on-12-january-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnankutty-vs-velayudhan-on-12-january-2005","title":{"rendered":"Krishnankutty vs Velayudhan on 12 January, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Krishnankutty vs Velayudhan on 12 January, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS No. 126 of 1994(E)\n\n\n1. KRISHNANKUTTY\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. VELAYUDHAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.V.SIVASWAMY\n\n                For Respondent  :SRI.V.GIRI\nCoram\n\n Dated :     12\/01\/2005\n O R D E R\n<\/pre>\n
.PL 58
\n.SP 2
\n          V. RAMKUMAR, J.@@
\n        j\n<\/p>\n
         —————————@@
\n        j
\n         A.S.NO.126 OF 1994 – A@@
\n        j\n<\/p>\n
         —————————@@
\n        j
\n         Dt.JANUARY 12, 2005. @@
\n        j
\n         JUDGMENT@@
\n        jCCCCCCCC
\n((HDR 0
\nAS 126\/94 -A
\n #@@
\nj<\/p>\n
))
\n.HE 1
\n        \tThe plaintiff in OS 262\/91 on the file of the Sub
\n        Court, Palakkad, is the appellant in this  appeal.    The
\n        said  suit  filed  by  the respondents herein was one for
\n        realisation  of  a  sum  of  Rs.30,000\/-  with   interest
\n        thereon.\n<\/p>\n
        \t2.   The  case of the plaintiff can be summarised
\n        as follows:-\n<\/p>\n
        \tAgreeing  to repay with 18% interest per annum on
\n        demand when needed by the plaintiff or his order,  a  sum
\n        of Rs.30,000\/- was received in cash by the defendants for
\n        their   business   and  the  defendants  executed  Ext.A1
\n        promissory note in the handwriting of the  2nd  defendant
\n        on 14.1.1989  in  favour  of  the  plaintiff.  Even after
\n        repeated  demands  for  the  said  amount  together  with
\n        interest  directly  and  through Ext.A2 lawyer notice dt.
\n        23.5.1991, the defendants have failed to  pay  the  same,
\n        but instead caused the lawyer notice sent in Ext.A3 cover
\n        to be returned unserved.   Hence the suit.\n<\/p>\n
        \t3.   Defendants  1  and 2, who are father and son
\n        respectively, resisted  the  suit  by  filing    separate
\n        written statements.    The  1st defendant contended inter
\n        alia as follows:-\n<\/p>\n
        \tThe  1st  defendant  has  not  signed  the   suit
\n        promissory  note,  nor  has he received any consideration
\n        thereunder.  The purported signature of this defendant in
\n        the promissory note is  a  forgery.    Even  if  the  2nd
\n        defendant  has  executed  a  promissory note, it has been
\n        rendered invalid by reason of material alteration and the
\n        suit is liable to be dismissed with costs.  The statement
\n        in the promissory note that the money  was  borrowed  for
\n        the purpose of trade of the defendants is incorrect since
\n        this defendant  has  never  conducted  any  trade.   This
\n        defendant has not received any  lawyer  notice  from  the
\n        plaintiff.   The  alleged return of the notice might have
\n        been stagemanaged by the  plaintiff  so  as  to  avoid  a
\n        denial of  the same by this defendant.  This defendant is
\n        not liable to pay the suit amount and there has  been  no
\n        financial transactions or dealings between this defendant
\n        and the plaintiff.\n<\/p>\n
        \t4.   The  2nd  defendant in his written statement
\n        raised the following contentions:-
\n        \tThe   plaint   allegation   that  the  defendants
\n        borrowed Rs.30,000\/- in cash for  the  purpose  of  their
\n        business on  the  terms  set out therein, is false.  This
\n        defendant had  sought  a  loan  of  Rs.15000\/-  from  the
\n        plaintiff for  a  temporary need.  The plaintiff insisted
\n        that if the said loan was to be paid, both the defendants
\n        will  have  to  execute  a  joint  promissory  note   for
\n        Rs.30,000\/-  and,  as  narrated  by  the  plaintiff, this
\n        defendant wrote down a promissory  note  and  signed  the
\n        same and  handed  over  it  to  the  plaintiff.  When the
\n        plaintiff made it clear that the  loan  amount  would  be
\n        given   only  if  the  1st  defendant  also  affixed  his
\n        signature to the promissory note, this  defendant  agreed
\n        to fetch  the  1st  defendant.  This defendant thereafter
\n        informed the 1st defendant about the stipulation  by  the
\n        plaintiff.   But  the  1st  defendant refused to sign the
\n        document.  On the next day itself this defendant informed
\n        the  plaintiff  about  the  unwillingness  of   the   1st
\n        defendant to  sign  the  promissory  note.  This was what
\n        transpired in the matter.  The 1st  defendant  has  never
\n        gone  to  the plaintiff, nor has he affixed his signature
\n        to the promissory note as alleged.  At the time when this
\n        defendant affixed his signature to the  promissory  note,
\n        no stamps  were  affixed to the same.  This defendant has
\n        not  received  any  amount  by  way  of  loan  from   the
\n        plaintiff.   Neither this defendant nor the 1st defendant
\n        has any trade or business.  Since the promissory note was
\n        an incomplete one in which the 1st defendant had not  put
\n        his  signature  also,  this defendant did not consider it
\n        necessary to get back the document  from  the  plaintiff.
\n        The  promissory  note  relied  on  by  the plaintiff is a
\n        fraudulent one amounting to forgery.  It is also  invalid
\n        due to  material  alteration.    It  is  not supported by
\n        consideration.  Since this defendant has not borrowed any
\n        amount from the plaintiff, this defendant is  not  liable
\n        to pay  any  amount to the plaintiff.  This defendant has
\n        not received any notice, nor has he sent  back  any  such
\n        notice as  alleged.  The plaintiff has no cause of action
\n        against this defendant and  the  suit  is  liable  to  be
\n        dismissed with costs of this defendant.\n<\/p>\n
        \t5.  The court below framed four issues for trial.
\n        On the side of the plaintiff two witnesses were  examined
\n        as  P.Ws.1 and 2 of whom P.W.1 is the plaintiff and P.W.2
\n        is a person who allegedly accompanied the  2nd  defendant
\n        when  the  latter approached the plaintiff for availing a
\n        loan.  Three documents were marked as Exts.A1  to  A3  on
\n        the side  of  the  plaintiff.    Defendants  1 and 2 were
\n        examined as D.Ws.1 and 2 respectively.    Ext.X1  is  the
\n        photocopy  of  the  thumb impression register summoned at
\n        the instance of  the  plaintiff  from  the  Sub  Registry
\n        Office.\n<\/p>\n
        \t6.  The learned Sub Judge, after  trial,  as  per
\n        judgment  and decree dt. 6.12.1993 dismissed the suit for
\n        the reason that Ext.A1 promissory note is incomplete  and
\n        also defective  due  to  material  alteration.  It is the
\n        said decree which is  assailed  in  this  appeal  by  the
\n        plaintiff.\n<\/p>\n
        \t7.   I  heard  Adv.Sri  V.V.Asokan,  the  learned
\n        counsel appearing for the  appellant\/plaintiff  and  Adv.
\n        Sri  N.Subramonian,  the  learned  counsel  appearing for
\n        respondents  3   to   8   who   are   the   other   legal
\n        representatives of the 1st defendant and Adv. Sri V.Giri,
\n        the  learned counsel appearing for the 2nd respondent\/2nd
\n        defendant.\n<\/p>\n
        \t8.   Adv.  Sri  V.V.Asokan  made  the   following
\n        submissions before me in support of the appeal:-
\n        \tThis is a case in which Ext.A1 promissory note is
\n        admittedly in the handwriting of the  2nd  defendant  who
\n        has  also  confessed  that  he  has affixed his signature
\n        thereto.  Even though both the defendants have  contended
\n        that  Ext.A1  promissory  note is invalid due to material
\n        alteration for the reason that the signature of  the  1st
\n        defendant  appearing  in  Ext.A1  promissory  note  is  a
\n        forgery, the finding of  the  court  below  is  that  the
\n        forgery  of the 1st defendant’s signature might have been
\n        committed by the 2nd defendant.  Since the 2nd  defendant
\n        is  a  party to the document, he cannot take advantage of
\n        his own wrong to set up the plea that Ext.A1 is  bad  due
\n        to  material  alteration  within the meaning of sec.87 of
\n        the Negotiable Instruments Act, 1881 (vide  Madam  Pillai@@
\n                                             AAAAAAAAAAAAAAAAAAAA
\n        v.  Adhinarayana  Pillai  –  AIR  1925  Madras 929).  The@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        defendants initially filed a joint vakalath.   Thereafter
\n        they  engaged  two  separate  lawyers  to  develop  their
\n        defence.  Even if this court upholds the finding  of  the
\n        lower  court  regarding  material alteration, the forgery
\n        having been committed by  the  2nd  defendant,  a  decree
\n        should  have been given atlest against the 2nd defendant,
\n        who admittedly executed the  promissory  note  which  was
\n        also admittedly prepared in his handwriting.\n<\/p>\n
        \t9.   I  am  afraid  that  I cannot agree with the
\n        above submissions.  This is not a case where  the  plaint
\n        allegations are  admitted in toto.  The 2nd defendant has
\n        narrated in his written statement the circumstances under
\n        which he happened to prepare Ext.A1  promissory  note  in
\n        his  own handwriting as dictated to him by the plaintiff.
\n        According to the  2nd  defendant,  the  amount  which  he
\n        wanted  to borrow from the plaintiff was only Rs.15000\/-,
\n        but the plaintiff insisted on a joint promissory note  by
\n        the father  and  son  and  that too for Rs.30,000\/-.  The
\n        further case of the 2nd defendant is that  the  plaintiff
\n        was  willing  to  part  with  the  money  only if the 1st
\n        defendant also affixed his signature  to  the  promissory
\n        note and he therefore handed over the incomplete document
\n        to  the plaintiff and went to fetch the 1st defendant who
\n        was, however, unwilling to go over to  the  plaintiff  or
\n        affix his  signature  to the document.  The 2nd defendant
\n        also offers an explanation for  not  receiving  back  the
\n        document  from  the  plaintiff  since  the  same  was  an
\n        incomplete one.    When  examined  as  D.W.2,   the   2nd
\n        defendant has  stuck  to  the  above version.  It was not
\n        seriously challenged  in  cross-examination  also.    The
\n        rights  and  liabilities  under  a  negotiable instrument
\n        arise only if what  is  delivered  under  sec.46  of  the
\n        Negotiable  Instruments  Act  is  a  completed negotiable
\n        instrument (see Damji Hirji v.  Mahomedalli Essabhoy  AIR@@
\n                   AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        1939 Bombay  461).    Going by the plea raised by the 2nd@@
\n        AAAAAAAAAAAAAAAAA
\n        defendant and his deposition from the witness  box,  what
\n        was handed over by him to the plaintiff was an incomplete
\n        document.   It  did  not contain the signature of the 1st
\n        defendant.   There  is  no  dispute  that  the   admitted
\n        signature  of  the  2nd  defendant  is not on the revenue
\n        stamps affixed thereto, but  appears  above  the  stamps.
\n        Even  the plaintiff examined as P.W.1 has stated that the
\n        2nd defendant signed the  document  after  preparing  the
\n        same  and  when  the plaintiff asked him as to why he put
\n        his  signature  without  affixing  the  stamps,  the  2nd
\n        defendant told him that he forgot about the same and took
\n        the  stamps  from  his pocket and affixed the same beside
\n        his signature.  But actually the stamps are seen  affixed
\n        below the  signature  of the 2nd defendant.  The evidence
\n        of P.W.2  is  also  to  the  effect  that  when  the  2nd
\n        defendant  put  his signature, Ext.A1 did not contain the
\n        stamps or the signature of the  1st  defendant  on  those
\n        stamps.  No doubt, both P.Ws.1 and 2 would say that after
\n        the  2nd defendant signed the instrument, the stamps were
\n        affixed and the 1st defendant signed on the stamps.  This
\n        part of their evidence is taken strong  exception  to  by
\n        D.Ws.1 and 2.  Thus, what the 2nd defendant signed was an
\n        unstamped  instrument  styled  as a joint promissory note
\n        containing a joint undertaking by the two  defendants  to
\n        return the sum of Rs.30,000\/-.\n<\/p>\n
        \t10.   The  case  of  the  plaintiff regarding the
\n        place and the manner of execution of the promissory  note
\n        is also  materially  discrepant.    Going by the apparent
\n        tenor of Ext.A1, the undertaking is to  repay  the  money
\n        with  interest  to the plaintiff residing at Pattancherry
\n        village in Chittur taluk of Palakkad District.    In  the
\n        plaint  also  what  is alleged in paragraph 6 is that the
\n        cause of action took place at  Pattancherry.    But  what
\n        P.W.1 would categorically say is that both the defendants
\n        came in the company of P.W.2 to his house at Chandranagar
\n        in   Palakkad   town  where  he  was  then  residing  and
\n        Pattancherry is his permanent address.  The  evidence  of
\n        P.W.2  is  also  to  the  effect  that he went along with
\n        defendants 1 and 2 to  the  house  of  the  plaintiff  at
\n        Chandranagar.\n<\/p>\n
        \t11.   The signature of the 1st defendant over the
\n        revenue stamp affixed in Ext.A1 materially  differs  from
\n        his  admitted  signature found in Ext.X1 thump impression
\n        register summoned from the office of the  Sub  Registrar.
\n        In  fact,  there  is  no  serious  challenge  against the
\n        finding that the signature of the 1st defendant appearing
\n        in Ext.A1 promissory note is a forgery.  If P.W.1  is  to
\n        be  believed,  both  the 2nd defendant as well as the 1st
\n        defendant signed in his presence at the time of preparing
\n        the document itself.  This cannot evidently be true since
\n        the signature of the 1st defendant is a forgery.   It  is
\n        not  known  as  to  how  the  trial  court  came  to  the
\n        conclusion that the signature of  the  1st  defendant  in
\n        Ext.A1 might have been forged by the 2nd defendant.  Both
\n        P.Ws.1  and  2  have no case that after the 2nd defendant
\n        put the signature in Ext.A1, the document was handed over
\n        to the 2nd defendant for getting the signature of the 1st
\n        defendant.  On the contrary, the definite case pleaded by
\n        both the 1st and the 2nd defendants is that  it  was  the
\n        plaintiff  who forged the signature of the 1st defendant.
\n        If  so,  the  plaintiff  cannot  take  advantage  of  the
\n        observation  by  the  trial  court  to  contend  for  the
\n        position that in a case where the material alteration  is
\n        not committed by the plaintiff, but by the 2nd defendant,
\n        the   defence   of  material  alteration  should  not  be
\n        permitted to be raised by the defendants.  Similarly, the
\n        plaintiff cannot claim a decree against the 2nd defendant
\n        alone on the basis of the admission by the 2nd  defendant
\n        of  his  signature  in  Ext.A1 promissory note which is a
\n        joint one imposing a joint liability and  which  contains
\n        the forged  signature of the 1st defendant.  The decision
\n        reported in AIR 1925 Madras 929 (supra) was refused to be@@
\n                    AAAAAAAAAAAAAAAAAAA
\n        followed in Santhu Mohideen Pillai v.   Jamaludin  Labbai@@
\n                    AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        AIR  1928  Madras  1092  which  was, in turn, approved in@@
\n        AAAAAAAAAAAAAAAAAAAAAAA
\n        Kumaraswami Desikar v.    Dhiraviam  Pillai  –  AIR  1935@@
\n        AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n        Madras 40 wherein it is held as follows:-@@
\n        AAAAAAAAA
\n         “The  suit  was laid on a promissory note said to@@
\n        i
\n                have  been  executed  by  the   two   defendants.
\n                Defendant  1  admitted execution but pleaded that
\n                he was not liable  on  the  note.    Defendant  2
\n                denied  execution  and the lower Court found that
\n                his signature was forged.    A  decree  has  been
\n                granted  against  defendant  1  and  the  present
\n                revision petition is filed against  that  decree.
\n                The  general  trend of decisions in this Court is
\n                that a decree cannot be given on a document which
\n                is found to be a forgery.  The earliest case here
\n                is is an unreported  ruling  of  Miller,  J.,  in
\n                C.R.P.No.601  of  1912,  where he followed 33 Cal\n<\/p>\n
                812.  This case was followed in 1914 Mad  369  by
\n                Sadasiva  Ayyar, J., and Wallace, J., in 1928 Mad
\n                1092 followed these two rulings  and  refused  to
\n                follow  the  ruling  of Devadoss, J., in 1925 Mad\n<\/p>\n
                929.  There is one other reported  case  of  this
\n                Court  in  favour of the respondent 1915 Mad 425.
\n                Some distinction was attempted  between  some  of
\n                these  cases  and the present by the fact that in
\n                some of these cases execution  by  one  defendant
\n                was  to  be  conditional  on the execution by the
\n                defendant whose signature was  found  a  forgery.
\n                That  does  not  however apply to C.R.P.No.601 of
\n                1912 where there  was  no  such  condition  about
\n                execution.  Also in 1914 Mad 369, Sadasiva Ayyar,
\n                J., decided the question on general principles as
\n                well as  on the particular facts of the case.  As
\n                to  the  argument  founded   on   defendant   1’s
\n                admitting  execution, I am unable to see how from
\n                a legal point of view  there  is  any  difference
\n                between  an  execution  which  is admitted and an
\n                execution  which  is  denied  but  found  on  the
\n                evidence to be true.\n<\/p>\n
         \tThe  English authorities are clear on the@@
\n        i
\n                point 98 ER 1120  and  (1892)  2  QB  724.    The
\n                principle  upon which such suits are dismissed is
\n                not the interest of the party  who  is  found  to
\n                have  executed  the document but the interests of
\n                justice in general.  They rest on  the  principle
\n                “Ex  turpi  causa  non oritur actio.” There is no
\n                reason that I can see why this  principle  should
\n                not be  applied  in India.  If anything, I should
\n                consider it is even  more  needed  here  than  in
\n                England.   The  revision petition must be allowed
\n                and the suit be  dismissed  against  defendant  1
\n                also.”\n<\/p>\n
        Thus,  courts  do  not  aid  or  become  instrumental  in
\n        enforcing transactions ex turpi  causa  (arising  from  a
\n        base cause).    In view of the position stated above, the
\n        dismissal of the suit by the court below is  only  to  be
\n        confirmed.\n<\/p>\n
        \tIn  the  result,  this  appeal is not entitled to
\n        succeed and the same is dismissed, but without costs.\n<\/p>\n
.JN<\/p>\n
                                             (V.  RAMKUMAR)
\n                                                 (JUDGE)
\n         mt\/-\n<\/p>\n
                                             V. RAMKUMAR, J.\n<\/p>\n
                                        ————————\n<\/p>\n
\t\t\t\tA.S.No. 126 of 1994 – A        <\/p>\n
                                              JUDGMENT<\/p>\n
                                          ———————–\n<\/p>\n
\t\t\t\t\t12.1.2005        <\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Krishnankutty vs Velayudhan on 12 January, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 126 of 1994(E) 1. KRISHNANKUTTY … Petitioner Vs 1. VELAYUDHAN … Respondent For Petitioner :SRI.V.SIVASWAMY For Respondent :SRI.V.GIRI Coram Dated : 12\/01\/2005 O R D E R .PL 58 .SP 2 V. RAMKUMAR, J.@@ j […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-128308","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKrishnankutty vs Velayudhan on 12 January, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishnankutty-vs-velayudhan-on-12-january-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishnankutty vs Velayudhan on 12 January, 2005 - 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