Siraj Ahmad vs Fasila
2022 Latest Caselaw 8493 Ker

              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

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

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