Kerala High Court
Sunny Michale vs Prasanna Kumari on 2 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:47951
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
RFA NO. 308 OF 2016
AGAINST THE JUDGMENT DATED 13.11.2015 IN OS NO.123 OF 2010 OF
ADDITIONAL SUB COURT, KOLLAM
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APPELLANT/PLAINTIFF:
SUNNY MICHALE,
AGED 52 YEARS, S/O P.V. MICHALE, RESIDING AT SHEELU
DALE, ALUMOODU P.O, MUKHATHALA, KOLLAM DISTRICT.
BY ADVS.
SRI.R.NIKHIL
SMT.R.PREETHA
RESPONDENTS/DEFENDANTS:
1 PRASANNA KUMARI, [DIED, LRs IMPLEADED AS ADDL. R8 & R9]*1
AGED ABOUT 62 YEARS,
W/O SASIDHARAN, RESIDING AT SYAM VIHAR, MATHILIL P.O,
MATHILIL CHERRY, THRIKKADAVOOR VILLAGE,
KOLLAM DISTRICT 691 601
2 KANAKAMMA BALAGOPAL, AGE & FATHER'S NAME NOT KNOWN THE
APPELLANT,
RESIDING AT GOPALA VILASOM VEEDU, KOCHALUMMOODU,
KUREEPUZHA, THRIKKADAVOOR VILLAGE,
KOLLAM DISTRICT 691 601.
2025:KER:47951
RFA NO. 308 OF 2016 -2-
3 K. YESODHARAN, [DIED, LRs IMPLEADED AS ADDL. R10 TO R12]*2
AGE & FATHER'S NAME NOT KNOWN THE APPELLANT,
RESIDING AT ARANYA NIVAS, PEZHUMTHURUTHU CHERRY,
MUNROETHURUTHU VILLAGE, KOLLAM DISTRICT 691 502.
4 K. LAMBODHHARAN, AGE & FATHER'S NAME NOT KNOWN THE
APPELLANT,
RESIDING AT KUMARAPURAM HOUSE, PEZHUMTHURUTHU CHERRY,
MUNROETHRURUTHU VILLAGE, KOLLAM DISTRICT 691 502.
5 K. SARNGADHARAN, AGE & FATHER'S NAME NOT KNOWN THE
APPELLANT,
RESIDING AT SHABIN VIHAR, PEZHUMTHHURUTHU CHERRY,
MUNROETHRURUTHU VILLAGE, KOLLAM DISTRICT 691 502.
*1 ADDITIONAL RESPONDENTS R8 & R9
ADDL. R8 SYAM S.,
AGED 48 YEARS, S /O.PRASANNAKUMARI, RESIDING AT SYAM
VIHAR, MATHILIL P.O, KOLLAM DISTRICT- 691 601.
ADDL. R9 HENA S.,
AGED 43 YEARS, RESIDING AT SYAM VIHAR, MATHILIL P.O,
KOLLAM DISTRICT-691 601.
*1 [THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS R8 AND R9 VIDE ORDER DATED 17.03.2025 IN IA
NO.2/2023 IN RFA 308/2016]
*2 ADDITIONAL RESPONDENTS R10 TO R12
ADDL.R10 SAKUNTHALA S., AGE NOT KNOWN TOT HE APPELLANT, W/O.K
YESODHARAN, RESIDING AT DHANYA NIVAS, PERUMON PO,
PERINAD, KOLLAM DISTRICT-691601.
ADDL. R11 DHANYA S., AGE NOT KNOWN TO THE APPELLANT, D/O
K.YESODHARAN, RESIDING AT DHANYA NIVAS, PERUMON PO,
PERINAD, KOLLAM DISTRICT-691601.
ADDL. R12 VIDHYA S., AGE NOT KNOWN TO THE APPELLANT,
D/O K YESODHARAN, RESIDINT AT DHANYA NIVAS, PERUMON PO,
PERINAD, KOLLAM DISTRICT-691601.
2025:KER:47951
RFA NO. 308 OF 2016 -3-
*2 [THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS R10 TO R12 VIDE ORDER DATED 17.03.2025 IN
IA NO.4/2023 IN RFA NO.308/2016]
BY ADVS.
SHRI.I.STEVENSON
SRI.M.R.SASITH
SRI.M.T.SURESHKUMAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
02.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.308 of 2016
= = = = = = = = = = = = = = = = = =
Dated this the 2nd day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for recovery of money under a promissory
note was dismissed by the trial court. The plaintiff is
in appeal.
2. According to the plaintiff, on 20.04.2007 the
defendant borrowed an amount of ₹ 9 lakhs from the
plaintiff and executed Ext.A1 promissory note. Alleging
failure on the part of the defendant to wipe off the
liability, the suit is filed.
3. The defendants denied the alleged borrowal and
also the execution of Ext.A1 promissory note. The
signature thereon was denied. It was contended that
Ext.A1 agreement is a forged document created at the
instance of the money lender viz. one Saseendra Babu.
The defendants challenged the financial capacity of the
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plaintiff to advance the amount.
4. The trial court on appreciation of the evidence
held that the plaintiff has failed to prove the
transaction and accordingly dismissed the suit.
5. We have heard learned counsel on either side.
6. The points that arise for determination in this
appeal are :-
(i) Has the plaintiff proved the due execution of Ext.A1
promissory note?
(ii) Does the evidence on record prove the transaction
claimed by the plaintiff?
(iii) Does the decree and judgment of the trial court warrant
any interference ?
7. The defendants have denied the very execution
and signature in Ext.A1 promissory note. Ext.A1 mentions
one Gopakumar as a witness. In spite of the above stand
of the defendants, the said Gopakumar was not examined.
It is curious to note that his non-examination was in
spite of the fact that he was summoned and present
before the court on the date of trial. The scribe of
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Ext.A1 was examined as PW2. Going by his evidence the
said Gopakumar played an active role in the transaction.
It is in spite of the same that the said Gopakumar is
not examined.
8. In spite of the specific denial of the financial
capacity of the plaintiff to advance the amount, the
plaintiff has not produced any document evidencing the
source of the funds. While examined as PW1, he has
admitted that during the relevant time he had
liabilities to Bank of more than ₹ 5 lakhs. It is in
spite of the same that ₹ 9 lakhs is claimed to have been
given as loan to the defendant. Regarding the source,
though the plaintiff attempted to project a case that he
had sold his immovable properties under Ext.A5 to A9
sale deeds and thus had funds with him, noticeably the
sale deeds were during the period from 13.09.1996 to
30.12.2006. It is difficult to accept that he was
retaining the consideration for the said sale
transactions in cash, and was given to the defendants
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under Ext.A1. Further, as noticed by the trial court
even the total sale consideration under the said sale
deeds is only ₹1,42,000/-. Though the plaintiff claimed
that he has seven bank accounts, none of the bank
statements are produced to substantiate the availability
of sufficient funds with the plaintiff to advance such
amounts to the defendants under Ext.A1. The failure on
the part of the plaintiff to produce materials to show
his source coupled with the fact that he was at the
relevant time indebted to the Bank casts cloud on the
genuineness of the claim.
9. The above apart, it has come out in evidence
that at the relevant time there was a criminal case
pending against the defendants initiated at the instance
of the plaintiff alleging that an amount of ₹ 12.5 lakhs
is due to the plaintiff in relation to an agreement for
sale of a property. The claim of the plaintiff that a
further amount of ₹ 9 lakhs was paid when such
proceedings were pending and ₹ 12.5 lakhs was
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outstanding, is very difficult to be accepted. The
plaintiff would contend that the defendants had agreed
that the property would be sold and the entire liability
wiped off. However admittedly there is no document to
evidence such agreement or understanding. The criminal
proceedings were not withdrawn. Therefore, the alleged
understanding/settlement remain unsubstantiated, and is
improbable.
10. Ext.B4 is the copy of the complaint filed by
the second defendant against the plaintiff, Saseendra
Babu (the person claimed to be the financier) and
others, before the Sub Inspector of Police Anjalumoodu.
Ext.B4(a) is the receipt issued from the Police Station
evidencing receipt of the complaint. The complaint was
filed on 01.01.2007 ie. three months before the alleged
transaction. Ext.B4 alleges rivalry of the respondents
therein that stemmed from some business transactions
with the second defendant's husband's brother. It
indicates that there were several issues between the
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parties even much prior to the alleged suit transaction
on 20.04.2007. This further renders the transaction
alleged in the plaint as improbable.
11. In addition to all the above is yet another
circumstance which tells upon the genuineness of the
plaint transaction. Ext.A1 is dated 20.04.2007. In
Ext.A1 the address of the plaintiff is stated as "Sheelu
Dale". It has come out in the evidence of PW1 that the
said residence was purchased by him only in the year
2008. Though he claims that it was preceded by an
agreement for sale entered into earlier, there is no
evidence. At the same time, Ext.B1 is the copy of FIR
and FIS lodged by him on 22.11.2007, much later the date
in Ext.A1 in relation to the sale of a property
involving ₹ 12.5 lakhs mentioned supra. Therein it is
stated that he is residing at his house "Paradise".
Admittedly, "Paradise" was his former residence.
Referring to the evidence of PW2, the scribe, the trial
court has noticed that, going by his deposition he went
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to a house in front of the Cristuraj School near Fathima
College which cannot be "Sheelu Dale, Cheriala,
Thrikkovilvattom village", mentioned in Ext.A1. Thus
there is discrepancy in the place of execution.
12. The trial court, which had the opportunity to
watch the demeanour of the witnesses did not consider
the evidence of PWs 1 and 2 reliable.
On the evidence and circumstances as above, we
concur with the trial court in having held that the
plaintiff has failed to prove the due execution of
Ext.A1 and the transaction as claimed by him. The trial
court was right in having dismissed the said suit. There
is no merit in this appeal. Appeal fails and is
dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy// P.S. To Judge
