{"id":74533,"date":"2009-10-14T00:00:00","date_gmt":"2009-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/alice-vs-john-joy-on-14-october-2009"},"modified":"2018-03-10T06:17:17","modified_gmt":"2018-03-10T00:47:17","slug":"alice-vs-john-joy-on-14-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/alice-vs-john-joy-on-14-october-2009","title":{"rendered":"Alice vs John @ Joy on 14 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Alice vs John @ Joy on 14 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 335 of 1997(8)\n\n\n\n1. ALICE\n                      ...  Petitioner\n\n                        Vs\n\n1. JOHN @ JOY\n                       ...       Respondent\n\n                For Petitioner  :SRI.BECHU KURIAN THOMAS\n\n                For Respondent  :SRI.C.J.JOY\n\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :14\/10\/2009\n\n O R D E R\n                       HARUN-UL-RASHID,J.\n               -----------------------------\n                 A.S.NOS.335 OF 1997 & 456 OF 1998\n                -----------------------------\n            DATED THIS THE 14TH DAY OF OCTOBER, 2009\n\n                             JUDGMENT\n<\/pre>\n
           These appeals arise out of the judgment and decree in<\/p>\n
O.S.Nos.38\/95 and 505\/94 respectively on the file of the Sub<\/p>\n
Court, Pala. The parties in both the suits are same. The suits<\/p>\n
were filed for realisation of money based on Ext.A1 promissory<\/p>\n
note. The trial court decreed the suit with costs in O.S.No.38\/95.<\/p>\n
The plaintiff was given a decree to realise a sum of Rs.56,755\/-<\/p>\n
with future interest at the rate of 12% per annum on the principal<\/p>\n
sum of Rs.42,925\/- from the date of suit till realisation. A decree<\/p>\n
for permanent prohibitory injunction was also passed restraining<\/p>\n
the defendant from felling and removing the standing timber<\/p>\n
trees in the plaint schedule property till the amount with interest<\/p>\n
is paid to the plaintiff. O.S.No.505\/97 was decreed allowing the<\/p>\n
plaintiff to realise a sum of Rs.66,466\/- with interest at the rate of<\/p>\n
                               -2-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
6% per annum from the date of suit till its realisation of the<\/p>\n
amount with costs. Aggrieved by the respective decrees and<\/p>\n
judgments passed in the said suits, the defendant has come up in<\/p>\n
appeal.    The parties hereinafter referred to as plaintiff and<\/p>\n
defendant as in the suits.\n<\/p>\n
           2. O.S.No.38\/95 was filed stating that on 30\/3\/1991 the<\/p>\n
defendant executed a promissory note for the value received in<\/p>\n
favour of the plaintiff agreeing to pay on demand a sum of<\/p>\n
Rs.42,925\/- with interest at 12% per annum. According to the<\/p>\n
plaintiff, in spite of repeated demands, the defendant failed to<\/p>\n
repay the amount. Hence the suit. Connected suit O.S.No.505\/94<\/p>\n
was also filed more or less on the same set of facts. The date of<\/p>\n
execution of the promissory note in that suit is 1\/3\/1991.<\/p>\n
           3. Defendant denied the execution of promissory note<\/p>\n
on the dates alleged by the plaintiff in the respcctive suits and<\/p>\n
further contended that she did not receive any money from the<\/p>\n
plaintiff and therefore she is not liable to pay the amount<\/p>\n
claimed. It is also contended that promissory note is a fabricated<\/p>\n
                                -3-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
document fraudulently created by the plaintiff with the intention<\/p>\n
of causing harm and injury to the defendant and it is devoid of<\/p>\n
any consideration.\n<\/p>\n
           4. The evidence consists of oral testimonies of the<\/p>\n
plaintiff and one attesting witness, who were examined as PWs.1<\/p>\n
and 2 and Exts.A1 to A4 were marked on the side of the plaintiff.<\/p>\n
The Defendant was examined as DW1 and attesting witnesses<\/p>\n
were examined as DWs.2 and 3 and Exts.B1 to B1(a) and B2<\/p>\n
were marked on the side of the defendant. In O.S.No.505\/94 the<\/p>\n
plaintiff and defendant examined the very same witness and<\/p>\n
Exts.A1 and A2 were marked. The trial court framed the very<\/p>\n
same issues in the light of the contention.\n<\/p>\n
           5. According to the plaintiff, Ext.A1 in both the suits is<\/p>\n
the promissory note executed by the defendant in favour of the<\/p>\n
plaintiff and that the defendant received considerations stated in<\/p>\n
the respective promissory notes. Plaintiff tendered evidence as<\/p>\n
PW-1 testifying that the allegation of the defendant that the<\/p>\n
promissory note is a fabricated one was put forward to evade<\/p>\n
                              -4-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
payment, since the husband of the defendant, who is the lst<\/p>\n
witness to the promissory note, is no more. He also testified<\/p>\n
before the court that Ext.A1 in the respective cases is the pro<\/p>\n
note executed by the defendant on the respective dates pleaded in<\/p>\n
the plaint. PW-2 is an attesting witness to Ext.A1. He is the<\/p>\n
brother of the plaintiff. The other two witnesses to Ext.A1 are<\/p>\n
Varkey Kurian and one Mathew. Varkey Kurian is the husband<\/p>\n
of the defendant and Mathew is a person who has got long<\/p>\n
association with the defendant and her family. It is the plaintiff’s<\/p>\n
case that the amount was paid to the defendant at the instance of<\/p>\n
his brother, who was examined as PW-2. The plaintiff testified<\/p>\n
that his brother PW-2 and the husband of the defendant are in<\/p>\n
good terms and it was at his instance the amount happened to be<\/p>\n
paid to the defendant. The husband of the defendant had a very<\/p>\n
active role in the transaction    and in fact the amount was<\/p>\n
received by the husband of the defendant and the defendant<\/p>\n
executed Ext.A1 pro note. The attesting witness PW-2 testified<\/p>\n
that Ext.A1 was signed by him at the Office of the Advocate at<\/p>\n
                               -5-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
Erattupetta, that at the time when he signed Ext.A1 pro note<\/p>\n
PW1, DW2 and the husband of the defendant were also present.<\/p>\n
At the same time, DW2, who is also an attesting witness, testified<\/p>\n
before the court below that he has not seen DW1 executing<\/p>\n
Ext.A1 or receiving any amount on the respective dates. Since<\/p>\n
the execution of Ext.A1 was denied, the court below analysed the<\/p>\n
oral evidence tendered by the parties and also compared the<\/p>\n
admitted signature of DW1 in his deposition, vakalath, written<\/p>\n
statement and the objection to the attachment application with<\/p>\n
that of the signature in Ext.A1. The court below opined that the<\/p>\n
signatures of the defendant in Ext.A1 and in the compared<\/p>\n
documents are one and the same.\n<\/p>\n
          6. Apart from contending that promissory notes are<\/p>\n
fabricated documents and that the defendant has not received any<\/p>\n
amount, no reasons or circumstances were stated in the written<\/p>\n
statement for the fabrication of two promissory notes by the<\/p>\n
plaintiff in the name of the defendant. I have gone through the<\/p>\n
written statement filed by the defendant.\n<\/p>\n
                                 -6-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
Except stating that the promissory notes are             fabricated<\/p>\n
documents, there is no pleading in the written statement<\/p>\n
explaining any circumstances on the part of the plaintiff for<\/p>\n
fabricating two promissory notes. The specific reason stated by<\/p>\n
the plaintiff is that he insisted for execution of promissory notes<\/p>\n
by the defendant because her husband had so many debts. When<\/p>\n
DW-1 was examined, she was not in a position to testify that her<\/p>\n
husband has no debts to clear and she has given evasive answers<\/p>\n
to the questions put to her.       When examined as DW-1, she<\/p>\n
testified that she has no idea about the extent of the property<\/p>\n
owned by her husband nor she is aware of the extent of the<\/p>\n
property, which her husband had sold and as to whether her<\/p>\n
husband had any financial transactions with PW1. She was not in<\/p>\n
a position to deny the transaction between the plaintiff and her<\/p>\n
husband. The very case set up by the plaintiff is that the amount<\/p>\n
was borrowed for meeting the needs of her husband.<\/p>\n
          7. The learned counsel for the appellant contended that<\/p>\n
PW-2 is the brother of the plaintiff and therefore his evidence<\/p>\n
                                 -7-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
cannot be acted upon being interested testimony. I have already<\/p>\n
stated that the evidence in this case would go to show that PW-2<\/p>\n
and the husband of the defendant are closely known to each<\/p>\n
other, that the husband of the defendant approached the plaintiff<\/p>\n
and in fact he was introduced by his own brother and the<\/p>\n
transaction was entered into between the plaintiff and the<\/p>\n
husband of the defendant in the presence of plaintiff’s brother. He<\/p>\n
is the only witness to Ext.A1 available for examination. The<\/p>\n
other witness is the husband of the defendant who died on<\/p>\n
4\/9\/1991. The 3rd witness Mathew is a person, who is doing his<\/p>\n
business in the property belonging to the defendant’s family and<\/p>\n
he told the plaintiff that he is unable to testify before the court as<\/p>\n
his witness. Therefore, the only person, who can speak about the<\/p>\n
transaction is the brother of the plaintiff, who was examined as<\/p>\n
PW-2. I do not think that there is anything wrong in placing<\/p>\n
reliance on the testimony of PW-2. PW-2 has given evidence<\/p>\n
that he knew the husband of DW1 for about 25 years, that the<\/p>\n
husband of DW1 approached him for money for the purpose of<\/p>\n
                                -8-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
avoiding an attachment, that the husband of DW1 told him that it<\/p>\n
would be repaid within one month and that PW1 agreed to pay<\/p>\n
the amount, if a promissory note is executed by DW1. In this<\/p>\n
connection it is relevant to note that the plaintiff as PW1 also<\/p>\n
testified that the husband of DW1 agreed to give a promissory<\/p>\n
note executed by DW1, that the promissory note was obtained<\/p>\n
from DW1, since her husband had other debts and that at the time<\/p>\n
when Ext.A1 was executed, the husband of DW1, PW1 and PW2<\/p>\n
were present. PW2, the brother of the plaintiff, testified that he<\/p>\n
happened to be an attestor to Ext.A1, because it was at his<\/p>\n
instance money was paid by PW1. The trial court believed the<\/p>\n
evidence of PWs.1 and 2. The trial court       observed that since<\/p>\n
PW2 is an attestor to Ext.A1 and he has explained the<\/p>\n
circumstances under which he happened to be an attestor to<\/p>\n
Ext.A1, the evidence of PW2 cannot be discarded solely for the<\/p>\n
reason that he is the brother of PW1.\n<\/p>\n
          8. The trial court also examined the credibility of DW2,<\/p>\n
who is the 3rd attestor to Ext.A1. He testified before the court<\/p>\n
                                  -9-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
below that he signed Ext.A1 as told by PW1 and that he knew<\/p>\n
the payment in relation to a transaction of 1986-87 and that at<\/p>\n
that time PW1 and the husband of DW1 were also present. The<\/p>\n
trial court noted that DW1 has no case that there was payment of<\/p>\n
any money in 1986-87 to her by PW1 and that no document was<\/p>\n
executed during that period attested by DW-2. The trial court<\/p>\n
disbelieved DW2 and held that there is every reason to come to a<\/p>\n
safe conclusion that DW2 is swearing falsehood before the court<\/p>\n
in order to support DW1.\n<\/p>\n
         9. From the evidence tendered by the parties, I find that<\/p>\n
Ext.A1 promissory notes were executed by DW1 in favour of<\/p>\n
PW1 on the respective dates, after receiving the consideration.<\/p>\n
Therefore, the plaintiff is entitled to realise the amount claimed in<\/p>\n
the plaint with interest at the rate of 12% per annum from the<\/p>\n
date of suit till its realistion from the defendant and from her<\/p>\n
assets.\n<\/p>\n
         10. The trial court also examined the evidence on record<\/p>\n
in detail and concluded that Ext.A1 promissory notes were<\/p>\n
                                 -10-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
executed by the defendant after receiving consideration. The trial<\/p>\n
court examined, analysed and discussed the evidence and other<\/p>\n
attendant circumstances in detail and reached the conclusion that<\/p>\n
the plaintiff is entitled to the relief as sought for in both the suits.<\/p>\n
I do not find any reason to interfere with the judgment and decree<\/p>\n
passed by the trial court.\n<\/p>\n
         In the result, the appeals fail and accordingly they are<\/p>\n
dismissed with costs.\n<\/p>\n<\/p>\n
                                                HARUN-UL-RASHID,
\n                                                        Judge.\n<\/p>\n
kcv.\n<\/p>\n
                         -11-<\/span>
\nA.S.Nos.335\/97 & 456\/98<\/p>\n
                            HARUN-UL-RASHID,J.\n<\/p>\n
                         ————————–\n<\/p>\n
                          A.S.NOS.335 of 1997 &
\n                           A.S.NO.456 OF 1998 D\n<\/p>\n
                         ————————–\n<\/p>\n<\/p>\n
                                     JUDGMENT<\/p>\n
                               14th October, 2009<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Alice vs John @ Joy on 14 October, 2009 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 […]<\/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-74533","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAlice vs John @ Joy on 14 October, 2009 - 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\/alice-vs-john-joy-on-14-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Alice vs John @ Joy on 14 October, 2009 - 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