IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 AS.No. 678 of 1996() -------------------- OS.546/1991 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): PLAINTIFF: ------------------------------------------ SUMA GUNAMANY, KOOVALATHALA BUNGLOW, OBSERVATORY LANE, THIRUVANANTHAPURAM. BY ADVS. MR.PIRAPPANCODE V.S.SUDHEER, MR.K.N.PANDARATHIL. RESPONDENT(S): DEFENDANT: ----------------------------------------------- T.K.VIJAYA KUMAR, PUTHENCHIRA, PUTHENVEEDU, ARUVIKKARA, THIRUVANANTHAPURAM. BY ADV.MR. G.UNNIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON 5/06/2009 DELIVERED THE FOLLOWING: Kss K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.678 of 1996 ------------------------------------------- Dated this the 5th day of June, 2009 JUDGMENT 1. This is an appeal filed by the plaintiff in O.S.No.546 of 1991 of the Ist Additional Sub Court, Thiruvananthapuram challenging the dismissal of the suit. The plaintiff filed the suit for recovery of an amount of Rs.24,120/- from the defendant alleging that the amount was borrowed on 6.4.1998 promising to repay the amount on demand. According to the plaintiff, the defendant, who borrowed the amount, had executed Ext.A1 document and Ext.A2 agreement on the same day. However, since the amount was not paid after the issuance of Ext.A3 notice, the suit was filed. 2. The suit was contested by the defendant alleging that the same was filed without any bonafides. According to him, he does not even know the plaintiff and there was no transaction between the plaintiff as alleged in the plaint. He contended that Exts.A1 and A2 documents were not executed by him. He had not borrowed any amount from the plaintiff and no amount was due from him. According to the defendant, husband of the plaintiff was a car broker. He had made arrangements for the defendant to purchase a tempo van and had also arranged the required finance from a private financier by name "ICDS, Pattom". For the purpose, the husband of A.S.No.678/1996 2 the plaintiff had handed over signed blank papers and signed stamp papers to the defendant. With the help of the plaintiff's husband, the defendant purchased a tempo van bearing Reg.No.KCT 3366 utilizing the finance arranged by her husband. After arranging the transaction as stated above, the plaintiff's husband demanded Rs.24,120/= as commission. The defendant paid an amount of Rs.20,000/- as commission, but did not pay the balance amount demanded. Consequently, the relationship between the plaintiff's husband and the defendant got strained and they became hostile. Subsequently, the plaintiff and her husband created the documents, Exts.A1 and A2, by fabricating the same on the signed blank papers of the defendant and filed the suit, without any bonafides. Therefore, he prayed for dismissal of the suit. 3. The suit was tried by the court below. The trial court framed two issues; i) Is the plaint promissory note dated 6.4.1988 one executed by the defendant, if so, is it supported by consideration? ii) Reliefs and costs? 4. The evidence in this case consists of Exts.A1 to A5 documents and the oral testimonies of PWs.1 and 2 on the side of the plaintiff and Exts.B1, X1 and X2 documents and the oral testimonies of DWs.1 and 2 on the side of the defendant. After an elaborate consideration of the evidence A.S.No.678/1996 3 on record and the various aspects of the case, the court below dismissed the suit finding that Exts.A1 and A2 documents were not executed by the defendant, but were created on the signed blank papers by the plaintiff's husband. Therefore, the suit has been dismissed with costs. The above appeal is against the said judgment and decree of the court below. 5. I have heard the counsel on both sides. 6. The point that arises for consideration is : Whether the finding of the court below that Exts.A1 and A2 documents are not executed by the defendant, but are documents created on the signed blank papers/stamp papers sustainable? 7. Though the document Ext.A1 is described as a promissory note, it is not referred to as a promissory note by the plaintiff. Therefore, the court below has not proceeded to treat Ext.A1 as a Negotiable Instrument. In the written statement, the defendant has denied the execution of the document. According to the defendant, he does not even know the plaintiff. The plaintiff's husband is a car broker and through him the defendant had purchased a vehicle, for which finance was also arranged by him from a private institution by name, "ICDS, Pattom". For the purpose of arranging finance, signed blank papers and signed stamp papers are alleged to have been handed over to him by the defendant. The plaintiff as PW1 admits that her husband is a car broker. She is a house wife. The defendant came A.S.No.678/1996 4 to her house for the first time on 6.4.1988 and had discussions with her husband with regard to the purchase of a motor vehicle and he had purchased a motor vehicle utilizing the finance arranged by her husband through the private bank. She does not have a case that she had any role in the said transaction between her husband and the defendant. Her case is that she had advanced an amount of Rs.24,120/- to the defendant for purchasing the vehicle. As noticed above, the plaintiff is not employed. Therefore, she is not a person who could, in the normal circumstances be possessed of such funds. The fact that she had met the defendant for the first time only on 6.4.1988 but had advanced the amount of Rs.24,120/- to him and had got executed Exts.A1 and A2 from him is highly artificial and unbelievable. Though Exts.A1 and A2 bear the same date, Ext.A1 does not refer to Ext.A2 agreement. Ext.A2 shows that a line has been inserted in page No.3 thereof to the effect that the R.C.Book, Insurance Certificate, sale letter etc. are to be retained by the plaintiff as security for the transaction. But he is not in possession of the said documents. PW1 explains this by saying that the said documents had been handed over to the defendant when the vehicle met with an accident. Even if that is the situation, it is difficult to believe that the said documents would have been returned without even obtaining a receipt, if they had actually been handed over as security for the transaction. The only probability appears to be that A.S.No.678/1996 5 the said recitals were included in Ext.A2 to lend authenticity to the document. The insertion is not initialled and is not explained convincingly. Since it is an admitted case that the husband of the plaintiff was acting as a commission agent, the case of the defendant appears to be more probable. 8. The court below has further noticed that the scribe of Exts.A1 and A2 is a document writer, who alleges to have written the said document at the house of the plaintiffs. This is in spite of the fact that he has an office nearby and is in the habit of preparing all his documents at his office. He does not offer a convincing explanation for writing Exts.A1 and A2 at the plaintiff's residence. The court below has further noticed that PW2 had written on the treasury seal at the bottom of the stamp paper which, document writers do not usually do. Though PW2 has been examined to prove Exts.A1 and A2, the court below which had the benefit of seeing the witness and watching his demeanour, has chosen to disbelieve him. According to the court below, he was over enthusiastic in support of the case of the plaintiff. Exts.X1 and X2 produced by the defendant refers to another transaction that DW2, father of the defendant, was having with the plaintiff's husband. The said documents also show that the plaintiff's husband was a commission agent. The said person has not been examined in this case. Non-examination of the plaintiff's husband is also fatal to the case of the plaintiff. Ext.B1 judgment produced by the A.S.No.678/1996 6 defendant relates to a similar transaction as in the present case. There, a suit filed by the husband of the plaintiff on similar allegations as the present case has been dismissed by the court below. In that case also, the allegation was that, for the purchase of a motor vehicle the defendant therein had borrowed money from the plaintiff's husband. From the totality of the facts and circumstances noticed above, the defendant's case appears to be more probable as held by the court below. The conclusion of the court below that Exts.A1 and A2 are not genuine, but that they are apparently created on signed papers obtained by the husband of the plaintiff from the defendant is justified. Therefore, the court below was right in dismissing the suit. In view of the above, the judgment and decree of the court below are confirmed and the appeal is dismissed. No costs. K.SURENDRAMOHAN Judge css/ A.S.No.678/1996 7 K.SURENDRA MOHAN, J. --------------------------------------- A.S.No.678 of 1996 --------------------------------------- JUDGMENT 5.6.2009