IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
RSA NO. 466 OF 2005
AGAINST THE ORDER/JUDGMENT IN AS 93/2002 OF I ADDITIONAL
DISTRICT COURT, PALAKKAD
OS 175/2001 OF MUNSIFF COURT, CHITTUR
APPELLANT/S:
SURESH, S/O. SEKHARAN
CHEMMANAMTHOTTIL, MUTHALAMADA VILLAGE,CHITTUR
TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT/S:
MOHANAN, S/O. SEKHARAN
OLULVAPARA, NALLEPILLY VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT.
BY ADV SRI.H.BADARUDDIN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 24-6-2022, THE COURT ON 1-7-2022 DELIVERED THE
FOLLOWING:
R.S.A. NO. 466 of 2005 -2-
MOHAMMED NIAS.C.P.J.
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R.S.A. NO. 466 of 2005
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Dated this the 1st day of July, 2022
JUDGMENT
The second appeal is filed by the plaintiff in a suit for realization of money, challenging the judgment and decree of the lower appellate court reversing the decree granted by the trial court.
2. Short facts necessary for disposal of the appeal are as follows;
3. Plaintiff filed the suit for money alleging that the respondent/defendant had availed a loan of Rs.60,000/- on 25/3/2000 from the plaintiff after executing a promissory note on condition to repay the same along with 12% interest on demand. Since the amount was not paid despite demand, the suit was instituted. The defendant contended that he neither knows the plaintiff nor had he borrowed any amount from him. It was his further contention that, plaintiff and one Enasu are partners of a chitty company in which the defendant's brother was a chittal and towards payment of dues to the said chitty R.S.A. NO. 466 of 2005 -3- company by the defendant's brother, the defendant's signature was taken and thus Ext.A1 promissory note was created. It is also contended that on receipt of the notice in the suit, defendant had made a complaint to the police.
4. The trial court examined PW1 and PW2 - the plaintiff and the scribe. DW1, the defendant, was also examined. Promissory note was marked as Ext.A1. The trial court found that the case of total denial by the defendant is wrong. During the examination of PW1, he had clearly given details about the defendant. The trial court also found that since Ext.A1 was a Negotiable Instrument and there was a presumption in the Negotiable Instrument Act that the document is executed for consideration shown in the document and that the case of the plaintiff was supported by the evidence of PW1 and PW2. The trial court further held that, the contention of the defendant that the plaintiff was a total stranger to him, cannot be believed. The trial court went on to hold that the defendant has failed to prove the contentions raised by him and that the mode of writing signature in English by the defendant and writing the name in Malayalam has to be taken as the signature of the defendant. The trial court noticed that DW1 admitted before the court that R.S.A. NO. 466 of 2005 -4- there is difference in the signatures in every page of the written statement filed and that he had also in the first instance denied the signature in the Vakalath executed by him. Considering all these aspects, a decree was granted as prayed for.
5. In the appeal filed by the defendant, the lower appellate court held that, the promissory note is executed without a witness to the transaction, and that in the office of the scribe(PW2) there were many persons present, and there is discrepancy in the version given by PW1 and PW2 regarding the number of people present at that time in the scribe's office, and that there are material contradictions between the evidence tendered by PW1 and PW2 in respect of the number of persons present at the time of execution of the promissory note and, accordingly, the evidence on the side of the plaintiff was not believed. It was also held by the appellate court that, there is a delay between the date of the promissory note and the date of institution of the suit, which was more than one year, and the same casts doubt on the case of the plaintiff. It was further observed by the lower appellate court that Enasu was present when PW1 was examined and therefore the contention of the defendant that the plaintiff has no acquaintance with the R.S.A. NO. 466 of 2005 -5- defendant has to be accepted. Ultimately, the lower appellate court found that the plaintiff has failed to establish the due execution of the promissory note and the appeal was allowed and the suit dismissed.
6. At the time of admission of the appeal, the following substantial questions of law were framed. ;
1). Is the lower appellate court legally correct in dismissing the suit alleging that Ext.A1 promissory note was not attested by witnesses as such Ext.A1 promissory note cannot be believed as it was properly executed ?
2). Is the lower appellate court correct in law in holding that Ext.A1 promissory note cannot be given effect to as it had not been attested by witnesses ?
3). Would the finding and conclusions of the lower appellate court amount to legal perversity as it had been made so as a result of misreading the evidence and based on no evidence ?
4). Is the lower appellate court legally correct in holding that the suit was not filed in time though it had been filed on 9/4/2001 on the basis of Ext.A1 promissory note dated 25/3/2000?
7. In this appeal, the learned counsel for the appellant contends that, the entire reasoning given by the lower appellate court for reversing the well considered judgment and decree of the trial court are wrong. It is also submitted that, there is no R.S.A. NO. 466 of 2005 -6- requirement under law that there should be witness to a promissory note and that there is a presumption in his favour under section 118 of the Negotiable Instrument Act. There was no evidence at all on the side of the defendant to dislodge the case of the plaintiff or doubt the due execution of the promissory note. Contradictions found by the lower appellate court regarding the number of persons present in the office of the scribe at the time of execution of the promissory note were hardly relevant in the facts of the case. The case of the defendant that the plaintiff is a total stranger to him was found to be wrong. The defendant had even denied the signature on the vakalath executed when he was confronted the same and he had also admitted the difference in the signatures put on every page of the written statement. According to the learned counsel for the appellant, there was no acceptable material available to reverse the judgment and decree to the trial court and that the decree and the judgment of the trial court be restored.
8. The learned counsel for the respondent reported no instructions.
9. Having heard the learned counsel for the appellant and going through the records, I find that the reasoning given by he R.S.A. NO. 466 of 2005 -7- lower appellate court for reversing the judgment cannot be accepted. The finding that there was no witness to the transaction apart from PW2, the scribe, even when many persons were present in the office of the scribe at the time of executing the promissory note, and that there is no difficulty to get a witness for the transaction etc. cannot be sustained in the facts of the case. It has to be noted that there is no requirement in law to have a witness for the execution of a promissory note. In the instant case, the plaintiff and PW2 had deposed about the due execution of the promissory note. In such a situation, going by the presumption available under section 118 of the Negotiable Instruments Act, which is rebuttable, the defendant ought to have dislodged the same by adducing cogent evidence. The case of the defendant that, on receipt of the notice of the suit, he made a complaint to the police, was not supported by any scrap of paper. It is also relevant to note that the defendant had admitted the difference in the signatures put on each page of the written statement and had even denied the signature in the vakalath executed by him. This conduct of the defendant raises suspicion on the acceptability of his case. Even when the defendant had a case that the plaintiff was a total stranger and R.S.A. NO. 466 of 2005 -8- denied the execution of Ext.A1, the defendant tried to say that the plaintiff had utilized a signed paper of his. No attempt was made on the side of the defendant to send the promissory note for examination by an expert. I have also find considerable force in the argument of the learned counsel for the appellant that even in the case regarding the chitty, there is no evidence to prove the averment made by the defendant.
10. On going through the evidence of PW1 and PW2 and also that of DW1, I have no doubt in accepting the case of the plaintiff, which is more probable.
11. For the reasons mentioned above, answering the substantial questions of law in favour of the appellant, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored.
The second appeal is, accordingly, allowed.
SD/- MOHAMMED NIAS C.P, Judge dpk