IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
RFA NO. 853 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 31.01.2015 IN OS 1125/2011
OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANT/DEFENDANT:
SIRAJ AHMAD, AGED 39 YEARS,
S/O. PAREETH AHAMED NIZAM, RESIDING AT T.C 29/75/7,
MGRA-34, RUDRAVEENA, PALKULANGARA, PETTAH,
THIRUVANANTHAPRUAM DISTRICT.
BY ADVS.
SRI.R.S.KALKURA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH
RESPONDENT/PLAINTIFF:
FASILA, AGED 42 YEARS,
D/O. BEEMA KANNU, RESIDING AT T.C.9/776, HOUSE NO. C1,
JAWAHAR NAGAR, VELLAYAMBALAM, SASTHAMANGALAM P.O.,
THIRUVANANTHAPURAM.
BY ADV SRI.SASTHAMANGALAM S. AJITHKUMAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA NO. 853 OF 2015
2
JUDGMENT
The defendant came up in appeal against the decree for recovery of an amount of Rs.8,00,000/- with interest covered by Ext.A1 promissory note. The defendant in turn contested the suit alleging that what was borrowed comes to only Rs.1,50,000/- and a stamped signed paper entrusted with the plaintiff by way of security as insisted by him was used for fabricating a promissory note for Rs.8,00,000/-. The plaintiff gave oral evidence as PW1 in proof of execution of Ext.A1 promissory note. It is a case wherein the signature affixed as that of the defendant over the revenue stamp affixed in the promissory note was admitted by the defendant. Normally, mere admission of signature would not prove the due execution of a document. But in the instant case, it is not a mere admission of signature, but admitted that the signature was affixed over the revenue stamp affixed in the document. When signature affixed over the revenue stamp in the document is RFA NO. 853 OF 2015 3 admitted, it will carry an admission regarding its legal consequences which is a requirement for getting a promissory note executed, especially when it is admitted that it was entrusted with the plaintiff by way of security in a loan transaction and it will discharge the initial burden on the plaintiff to prove the due execution. Then it is upon the defendant to establish the defence set up and also that it is not covered by the consideration as stated in the document, especially when it is admitted that it was given by way of security to a loan transaction stating that the loan amount comes to a lesser amount of Rs.1,50,000/- than what is stated in the document, for which, no satisfactory evidence was adduced, except the oral evidence of DW1, the defendant. The FIR registered - Ext.B1, Ext.B2 application and Ext.B3 report by itself will not constitute sufficient evidence to rebut the presumption available under Section 118 of the Negotiable Instruments Act or to establish the defence set up by the defendant. Further, when discharge is pleaded, RFA NO. 853 OF 2015 4 it is upon the defendant to prove the same with cogent evidence. As discussed earlier, except his self serving interested testimony as DW1, no other oral or documentary evidence was adduced in that behalf. Hence, the decree and judgment of the trial court deserves no interference. The appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN JUDGE msp