Kerala High Court
Vasanthakumari vs Sreekumar on 16 January, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
RSA NO. 502 OF 2022
AGAINST THE JUDGMENT DATED IN CMCP NO.64 OF 2022 OF HIGH
COURT OF KERALA ARISING OUT OF THE JUDGMENT DATED 1.6.22 IN AS
NO.22 OF 2017 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, KARUNAGAPPALLY ARISING OUT OF THE JUDGMENT DATED 26.08.2017
IN OS NO.363 OF 2013 OF MUNSIFF COURT, KARUNAGAPPALLY
APPELLANT/APPELLANT/DEFENDANT:
VASANTHAKUMARI
AGED 53 YEARS,
D/O. PADMAKSHI,
RESIDING IN THE ADDRESS PRAVEEN BHAVANAM,
MALITHAGOM, THEKUMBHAGOM VILLAGE,
KARUNAGAPPILY TALUK, KOLLAM DISTRICT 691 319.
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/RESPONDENT/PLAINTIFF:
SREEKUMAR
AGED 49 YEARS
S/O. CHELLAPPAN ACHARI,
RESIDING IN THE ADDRESS SREESADANAM VEEDU,
PADINJATTUKARA, THEVALAKKARA VILLAGE,
KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PINCODE- 691 319.
BY ADVS.
HARIKUMAR T S
P.B.SAHASRANAMAN(K/121/1984)
RSA NO. 502 OF 2022 2
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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 16.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA NO. 502 OF 2022 3
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JUDGMENT
1. The defendant in a suit for recovery of money is the
appellant. The suit was filed by the plaintiff on the
strength of Ext.A1 Promissory Note for Rs. 4 lakhs. The
suit was decreed directing the defendant to pay
Rs.4,25,000/- with interest at the rate of 12% per annum
on the principal amount of Rs. 4,00,000/- from the date
of this suit till the date of judgment and at the rate of 6%
as future interest. Though the defendant filed appeal,
the same was dismissed, confirming the judgment and
decree of the Trial Court. This Regular Second Appeal is
filed, challenging the judgment and decree of the Trial
Court confirming by the First Appellate Court.
2. I have heard Sri. G. Sreekumar Chelur, the learned
counsel for the appellant and Sri.T.S Harikumar, the
learned counsel for the respondent/plaintiff.
3. The learned counsel for the appellant contended that
there are material contradictions in the the evidence of
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PWS 1 to 3 with respect to the borrowal and execution of
Ext.A1. Ext.A1 is not properly proved before the court.
4. On the other hand, the learned counsel for the plaintiff
contended that the execution of Ext.A1 is sufficiently
proved before the Court. Even the evidence of the
witnesses examined by the defendant as DWS 3 to 5
proved the execution of Ext.A1 Promissory Note.
5. It is seen that the plaintiff filed the suit after issuing
Ext.A2 registered Notice to the defendant. The
defendant did not send in a Reply to Ext.A2 lawyer
notice.
6. The case of the defendant is that, she does not have any
transaction with the plaintiff and the plaintiff is the
benami of one Sathyavan Gaikwad at whose instance
the suit is filed. The defendant had borrowed an amount
of Rs.3,50,000/- from the said Sathyavan Gaikwad and
as a security for the borrower, she had given two blank
signed papers with a revenue stamp, signed blank
stamp paper worth Rs.100 and signed blank cheque
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leaves of the plaintiff's son. It is the case of the
defendant that the defendant repaid Rs.2,50,000/- to
Sathyavan Gaikwad and she was ready and willing to
pay the balance amount of Rs.1,00,000/- to Sathyavan
Gaikwad and he refused to accept the balance amount
offered by the plaintiff demanding an extra amount of
Rs.50,000/-. She lodged a complaint before the Kollam
City Police Commissioner in this regard.
7. In order to prove the execution of the Ext. A1, the
plaintiff examined PWS 1 to 3. The defendant was
examined as DW1. She admitted the signature in Ext.
A1. She admitted receipt of Ext.A2 lawyer notice.
Though it is stated in the written statement that, she has
no acquaintance with the plaintiff when she was
examined as DW1, she admitted that she knows the
plaintiff since 2012. Even though DW1 stated that, she
had submitted a complaint not only against Sathyavan
Gaikwad but also against the plaintiff, no such pleading
is there in the plaint and not a scrap of paper is
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produced to prove that she lodged a complaint against
the plaintiff. The scribe of Ext.A1 document was
examined from the side of the defendant as DW4. He
specifically stated that on the request of the defendant,
he prepared Ext.A1 Promissory Note and signed the
document as Scribe. It runs against the case of the
defendant that the Promissory Note was prepared on the
blank papers given by the plaintiff to Sathyavan
Gaikwad. PW2 and PW3 were examined by the plaintiff
as the attestors to Ext.A1. In the light of evidence of
PWS 2,3 and the evidence of DW4, the Trial Court as well
as the First Appellate Court, rightly found that Ext.A1
Promissory Note is proved before the court. Even though
the witnesses DWS 3,4 and 5 deposed against the
defendant, the defendant did not seek to declare them
as hostile for cross-examination. I do not find any error
or illegality in the judgment of the Trial Court, which is
confirmed by the First Appellate Court.
8. The learned counsel for the appellant submitted that
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the appellant has identified a purchaser for her property
and she will be able to sell the property within a period
of six months and she may be given a period of six
months time to liquidate the liability as per the Trial
court decree. Though the said request was opposed by
the learned counsel for the appellant, taking into
account of the fact that the appellant is a lady, I grant a
period of six months from today to the appellant to pay
the liability as per the decree.
9. The Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
vnk/-
