IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 AS.No. 720 of 2000(A) ------------------------- OS.762/1995 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): (DEFENDANTS 1 AND 2) --------------------- 1. P.MADHAVIKUTTIAMMA, W/O. PRABHAKARAN NAIR, RESIDING AT II/59, GEETHA BHAVAN, PIRAYAR KARA, KIDANGOOR VILLAGE. 2. P.JANAKIAMMA, D/O. PAPPIAMMA, RESIDING AT II/59, GEETHA BHAVAN, PIRAYAR KARA, KIDANGOOR VILLAGE. BY ADV. SRI.R.PADMARAJ SRI.VINOD MADHAVAN RESPONDENT(S): PLAINTIFF -------------------------- K.VIJAYAKUMAR, S/O. VASUDEVAN NAIR, RESIDING AT JAYA VIHAR, COLLECTORATE P.O., MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE , KOTTAYAM DISTRICT. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.6593/2000 IN AS. 720/2000 DISMISSED 12/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 720 OF 2000 = = = = = = = = = = = = = = = Dated this the 12th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottayam in O.S.762/95. The brief facts for the disposal of the case are stated as follows. It is the case of the plaintiff that the defendants had executed a promissory note and borrowed a sum of Rs.25,000/- with a promise to pay interest at the rate of 24% with quarterly rests. The defendants did not pay the amount in spite of a lawyer notice, hence the suit. 2. The defendants on the other hand would contend that they had not borrowed the amount and had never executed a promissory note in A.S. 720 OF 2000 -2- favour of the plaintiff but according to them the father-in-law of the plaintiff had instituted a suit and wherein for the amount due from one Prabhakaran Nair, these persons had handed over signed blank papers and a suit had been instituted as O.S.986/92. The said suit had ended in dismissal and an appeal is pending before this Court. The Court below after considering the materials granted a decree in favour of the plaintiff and it is against that decision the defendants had come up in appeal. 3. Heard the learned counsel for the appellants. The case of the plaintiff is that as per a promissory note dated 24.10.92 the defendants had borrowed a sum of Rs.25,000/- and they had not paid back the amount. On the A.S. 720 OF 2000 -3- contra the defendants would contend that they had no transaction with the plaintiff and they are not liable to pay any amount. 4. Ext.A1 is the promissory note. It is signed by the first defendant in English and 2nd defendant in Hindi and the promissory note is typed in English. Ext.A2 is the notice issued on 10.10.95 for the amount, which has not been replied at all by the defendants. Learned counsel for the appellant would strongly contend before me the conduct of the plaintiff and his father-in-law would reveal that all is not well with the case and therefore the Court below should have dismissed the suit. 5. The evidences available are that of PW1 and DW1. PW1 is the plaintiff. He had deposed A.S. 720 OF 2000 -4- before Court that first defendant is related to him through his wife and they had come to his house and requested for an amount of Rs.25,000/- which he had paid. He would also submit that he prepared the manuscript of the document which was taken out for typing and thereafter the defendants had affixed their signature on the same and received the consideration and so the defendants are liable to pay the amount. The learned counsel would contend that witness namely Venugopalan Nair is shown in Ext.A1. But he had not been examined. 6. On behalf of the defendants first defendant was examined as PW1 and it has come out in evidence that she is a retired headmistress of L.P.School and that there is A.S. 720 OF 2000 -5- some relation between the wife of the plaintiff and her. One cannot expect, especially a school teacher, to put her signature in any document without knowing the contents of the document. But here the defence appears to be quite strange. The defence is to the effect that in the suit filed by the father-in-law of the plaintiff, i.e.O.S.896/92 documents are used wherein the signature is put by the defendants in blank papers. They have no case that they had signed in any blank papers so far as it relates to this case is concerned or in other words they do not contend for the position that Ext.A1 document was created making use of their signature in a blank signed paper. When a notice is received claiming the amount certainly if A.S. 720 OF 2000 -6- there was no connection between the plaintiff and the defendants the defendants would not have kept quite at all. They would have send a reply stating that there was no such transaction. So conduct of the defendants in not sending a reply notice is very crucial in this case that too in the back drop that another suit has been instituted in the year 1992 in which they contend that it is a false case. Therefore the defendants were totally aware of the whole thing and then keeping silence to a lawyer notice amounts to something which the Court has to view with suspicion. Since the other appeal has also come up along with this appeal for hearing I did have the opportunity to see the documents in these cases. I say so for the reason in the A.S. 720 OF 2000 -7- other case in the document the signature is admitted but not the execution of the document. Therefore I just perused the various documents and compared the signatures. I am conscious of the fact that comparison of signature by a Court is a hazardous task for the reason that the Court is not an expert on that science. But at the same time S.73 of the Evidence Act permits and the Hon'ble Supreme Court has held that there is nothing wrong in making a comparison but the result of the comparison alone should not be the criteria for decreeing the suit. The Apex Court stated that it can be used for the purpose of using it as a corroborative piece of evidence. When the first defendant was asked about the signature in Ext.A1 and her other A.S. 720 OF 2000 -8- admitted signatures she raised a suspicion that the letter 'M' has some difference. But when she was asked about her own admitted signature in the written statement she would reply that it looks like her signature. So it has also to be stated that fate of a civil case depends upon preponderance of probabilities as well. The conduct of the defendant in not replying the suit notice plus the similarity in signature and with the evidence of PW1, it appears to be intrinsically reliable and inherently probable and also makes me feel that the plaintiff has got a case and he has succeeded in proving the execution of the promissory note. A.S. 720 OF 2000 -9- 7. When the execution of the promissory note is proved S.118 of the Negotiable Instruments Act comes into play and the presumption regarding passing of consideration also has to be said to be established. Therefore I find that Ext.A1 promissory note is proved and that the defendants borrowed the same. 8. Now the next question is regarding the interest. It is true that the instrument shows the interest at the rate of 24%. The plaintiff would contend that defendants are having bus services so as to make it a commercial transaction. They had denied the same and would submit that the first defendant's husband was running a bus service. So I feel that interest A.S. 720 OF 2000 -10- shown in the promissory note is slightly unconscionable. Therefore it requires some modification. Therefore I find the interest can be at the rate of 12% from the date of execution of the promissory note till the date of decree as held by the Court below and at the rate of 6% from the date of decree till realisation. In the result the appeal is disposed of confirming the finding on promissory note and modifying the interest and therefore a revised decree is passed as follows. The plaintiff is given a decree for realisation of Rs.25,000/- with 12% interest on the said sum from 24th October, 1992 till the date of decree passed by the trial court and at the rate of 6% on Rs.24,000/- from the date of decree till A.S. 720 OF 2000 -11- realisation from the defendants with costs. Parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 720 OF 2000 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 720 OF 2000 = = = = = = = = = = = J U D G M E N T 12th July, 2010.