Kerala High Court
Suresh vs Mohanan on 1 July, 2022
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.
...................................................
R.S.A. NO. 466 of 2005
.......................................................
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
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
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
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
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
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
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
