Joe P.John vs Elizebath
2023 Latest Caselaw 11406 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                   THE HONOURABLE MR. JUSTICE SATHISH NINAN
      WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945
                                RFA NO. 739 OF 2011
     AGAINST THE JUDGMENT IN OS 296/2007 OF I ADDITIONAL SUB COURT,
                                THIRUVANANTHAPURAM
                                         -----
APPELLANT/DEFENDANT:

              JOE P.JOHN, AGED 42 YEARS,
              S/O.C.P.JOHN,CHIRAYAN HOUSE,
              MISSION QUARTERS,CHEMBAKAVU,THRISSUR.

              BY ADV SRI.P.RAHUL



RESPONDENT:

              SMT.ELIZEBATH, AGED 59 YEARS,
              W/O.VINCENT, VIJI BHAVAN,POONTHURA,
              MUTTATHARA PO,THIRUVANANTHAPURAM 695 001.

              BY ADVS.
              SRI.K.BABU THOMAS
              SMT.MARYKUTTY BABU




     THIS     REGULAR   FIRST   APPEAL    HAVING   COME   UP   FOR   ADMISSION   ON
08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
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                     RFA No.739 of 2011
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           Dated this the 8th day of November, 2023

                           J U D G M E N T

The decree for money is under challenge by the

defendant in the suit.

2. The suit has been instituted on Ext.A1

promissory note dated 30.08.2004. According to the

plaintiff, on 30.08.2004 the defendant borrowed an

amount of ` 2,30,000/- and executed Ext.A1 promissory

note in her favour agreeing to repay it with interest.

Consequent on the failure on the part of the defendant

to repay the amount, the suit has been filed.

3. The defendant denied the execution of Ext.A1 and

also the signature and hand writing therein. According

to the defendant, he did not have any transaction with

the plaintiff. It was contended that Ext.A1 is a

fabricated document.

4. Before the trial court, the plaintiff got

herself examined as PW1. One of the witnesses to Ext.A1 RFA No.739 of 2011

promissory note was examined as PW2. No evidence was

adduced by the defendant. The trial court on

appreciating the evidence upheld Ext.A1 and accordingly

granted a decree in favour of the plaintiff.

5. Heard learned counsel on either side.

6. The following points arises for determination :-

(i) Is the finding of the trial court with regard to

execution of Ext.A1 promissory note sustainable on the

evidence on record ?

(ii) Does the decree and judgment of the trial court

warrant any interference?

7. The defendant has denied Ext.A1 and the alleged

transaction thereunder. Though according to the

plaintiff, her husband and the defendant were friends,

the same is denied by the defendant. However, the

defendant would admit that there were some sort of

business transactions between them. To prove the

execution of Ext.A1 promissory note, one of the RFA No.739 of 2011

witnesses in Ext.A1 was examined as PW2. He has vouched

to the due execution of Ext.A1 by the defendant. He has

also deposed that he has witnessed the passing of the

consideration. While the defendant would not deny that

there is striking resemblance of the signature in Ext.A1

with his signature, it is the contention that his

signature is very simple that anyone can imitate/forge

the same.

8. Ext.A2 is the notice dated 27.11.2006 issued by

the plaintiff prior to the institution of the suit,

calling upon the defendant to pay the amount under

Ext.A1. The notice was not replied by the defendant. The

receipt of Ext.A1 is not disputed by the defendant.

However it is his case that, on receipt of notice he met

the plaintiff in person and he was informed that it was

issued only to pressurise the defendant to arrive at a

settlement of the dispute between them in respect of

their business transaction, and hence the notice was not RFA No.739 of 2011

replied. The explanation offered by the defendant is far

from satisfactory. If, the defendant had not borrowed

any amount from the plaintiff nor had executed Ext.A1

promissory note, definitely the defendant would have

replied to the same and taken appropriate steps. There

is no evidence that there were disputes in connection

with their business or that after issuance of Ext.A2

notice the dispute was settled. Therefore, the said

explanation offered is only to be rejected.

9. The learned counsel for the appellant would

argue that, while PW1 would depose that the defendant

had approached her two weeks prior to the grant of loan,

PW2 would depose that the request for grant of loan was

made only at the time of the transaction. Such

contradiction would disprove the case of the plaintiff,

it is contended. However, on a reading of the entire

oral evidence, I do not think that the evidence is to be

understood in the manner as contended by the defendant. RFA No.739 of 2011

PW1 has categorically deposed that the defendant had

made the request for grant of loan about two weeks prior

to the transaction. One of the witnesses in Ext.A1

promissory note is one Noble, the son-in-law of the

plaintiff. Noble had come to the house of the plaintiff

at the time of execution of Ext.A1 promissory note, to

be a witness in Ext.A1. It has been so deposed to by

PW1. In the cross examination, PW2 has stated that,

while he was present at the plaintiff's residence, the

defendant came and requested for money which the

plaintiff gave on execution of the promissory note which

was brought by the defendant. If as contended by the

defendant, the request for grant of loan was made for

the first time in the presence of PW2, then the

defendant would not have brought the promissory note

with him. It could only be understood that it was in

tune with the earlier understanding that the defendant

came to the plaintiff's residence on the date of RFA No.739 of 2011

execution of Ext.A1 for receiving the amount and for

executing the promissory note. I do not find any

inconsistency between the evidence of PWs.1 and 2 in the

said regard.

10. The trial court has considered the evidence in

its entirety and has granted a decree in favour of the

plaintiff. The conclusions arrived at by the trial court

is sustainable on the evidence. The trial court has

allowed the plaintiff to realise interest at the rate of

9% per annum from the date of suit till date of decree

and 6% thereafter, which is only reasonable.

The decree and judgment of the trial court warrants

no interference. The points are answered accordingly.

The appeal fails and is dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge