IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 551 of 2009() --------------------- AS.251/2004 of I ADDL. DISTRICT COURT, PALAKKAD OS.520/2002 of MUNSIFF COURT, CHITTUR .................... (S): APPELLANT/DEFENDANT: ---------------------------------------- SHEIK MUSTHAFA, S/O.SHAHUL HAMEED, AGED 52 YEARS, AGRICULTURIST, ATTAYAMPATHI, MUTHALAMADA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENT(S): PLAINTIFF: ------------------------- VELU SWAMY, S/O.PAZHANI KOUNDER, AGED 70 YEARS, ALAMKADAVU, DIVANSAPUTHUR, POLLACHI TALUK, COIMBATORE DISTRICT, TAMIL NADU. ADV. SRI.SAJAN VARGHEESE K. FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- R.S.A.No.551 of 2009 -------------------------- Dated this the 24th day of June, 2009 JUDGMENT The defendant in O.S.No.520/2002 is the appellant. The appeal is directed against the judgment and decree in A.S.No.251/2004 on the file of the First Additional District Court, Palakkad. The suit was filed for realisation of money due on a promissory note. The trial court decreed the suit and the Appellate Court confirmed the findings. Hence the second appeal. 2. It is the plaintiff's case that the defendant had borrowed a sum of Rs.50,000/- from him on 02/02/2000 agreeing to repay the amount with interest at the rate of 18% per annum. In spite of the repeated demands, the defendant failed to repay the amount. Hence the suit was filed for the aforesaid reliefs. 3. In the written statement filed by the defendant, it is contended that he had neither borrowed a sum of Rs.50,000/-from the plaintiff nor executed a pronote in his R.S.A.No.551 of 2009 2 favour. According to the defendant, the plaintiff was not known to him earlier and on enquiry it was found that he is a co-brother of Nataraja Gounder, who is a creditor of the defendant. The defendant prayed for dismissal of this suit. 4. In support of the case Pws.1 to 3 were examined on the side of the plaintiff and Exts.A1 to A9 were marked. Defendant was examined as Dw.1 and Exts.B1 to B4 were marked on his side. 5. PW1 is the plaintiff. PW2 is the attesting witness. PW3 is a person who had dealing with the defendant and therefore had acquaintance with his signature. The trial court believed PWs.1, 2 and 3 and concluded that the defendant borrowed the plaint amount from the plaintiff. Exts.B1 to B4 are the documents contending the admitted signature of the defendant. The trial court observed that from the mere perusal of all the document it can be seen that the signatures differ from one another. The trial court also examined the signature in Ext.A1 to A4 and observed that the signature in R.S.A.No.551 of 2009 3 Exts.A1 to A4 are different from that of Exts.B1 to B4. To prove the signatures and handwriting of the defendant, the plaintiff examined PW.3 who is a creditor of defendant. There was a suit between PW.3 and defendant as O.S.No.482/2002 for realisation of money due on a pro note in which PW.3 was the plaintiff. The plaintiff produced the plaint and written statement in the said suit which were marked as Exts.A4 and A5. PW.3 identified the signature and handwriting in Ext.A1 pro note. The trial court elaborately considered the oral evidence of PW.3 and observed that he is a fit person to prove the handwriting as well as the signature of the defendant. 6. The trial court rightly held that Ext.A1 pro note was executed by the defendant and that the defendant failed to rebut the statutory presumption. Therefore a decree was passed allowing the plaintiff to realise the plaint amount with interest. The appellate court also considered the evidence on record and reached the same conclusion. The findings recorded by both courts are purely on facts. I find no reasons R.S.A.No.551 of 2009 4 to interfere with the findings of the courts below. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID,JUDGE) skj.