IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 AS.No. 85 of 1999(A) -------------------- OS.162/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT(S): PLAINTIFF -------------- SANKARANARAYANAN, S/O. PAROLE JANAKI AMMA, CHUNANGAD AMSOM AND DESOM, OTTAPPALAM TALUK. PALAKKAD DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN SRI.T.V.HARI SRI.C.RAMAN SMT.M.R.MINI RESPONDENT(S): DEFENDANT --------------- CHUMMAR, S/O. MAKKATTUKULANGARA CHERU, NAGALASSERI AMOM, THOZHUKKAD DESOM,. P.O. KOOTTANAD, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.SANTHEEP ANKARATH THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 85 of 1999 -------------------------------------- Dated: AUGUST 14, 2009 JUDGMENT The defendant in O.S.162/1994 on the file of the Sub Court, Ottapalam, in this appeal challenges the decree and judgment of the lower court dated July 31, 1998 dismissing the suit for recovery of the amount allegedly due to him on the promissory Ext.A1 dated January 24, 1992 allegedly executed by the respondent/defendant . 2. The case of the appellant/plaintiff as stated in the plaint and as testified by PW.1 before the lower court was that the respondent/defendant borrowed Rs.25000/- from him for which the respondent/defendant executed a demand promissory note Ext.A1 dated January 24, 1992 agreeing to repay the same with interest at the rate of 18% per annum and that in spite of the lawyer notice Ext.A2 dated December 3, 1993 issued, the respondent/defendant did not repay the amount. 3. The case of the respondent/defendant was of total denial. As DW.1 he would say that when he had taken a loan from one Velayudhan Nair, he had given him some signed blank A.S. 85 of 1999 2 cheques and papers and that the appellant/plaintiff might have misused those blank signed papers and created Ext.A1. 4. The appellant/plaintiff examined PW.1 and the respondent/defendant was examined as DW.1 before the lower court. Exts.A1 to A3 and Exts.B1 to B1(b) were marked before the lower court. The learned Sub Judge after appreciation of evidence found that the appellant/plaintiff has failed to prove the execution of Ext.A1 by the respondent/defendant and dismissed the suit with costs. The plaintiff has now come up in appeal. 5. When the appeal came up for hearing today, counsel for both parties were absent. 6. The main point which arises for consideration is whether Ext.A1 promissory note was executed by the respondent/defendant and, if so, whether the respondent/defendant borrowed any amount from the appellant/plaintiff. 7. To prove the execution of Ext.A1, on the side of the appellant/plaintiff, his father was examined as PW.1 before the lower court. The lower court disbelieved his evidence on the ground that the appellant/plaintiff has no case that Ext.A1 was A.S. 85 of 1999 3 executed in the presence of PW.1. The case of the respondent/defendant is that he does not even know the appellant/plaintiff. Under these circumstances the non- examination of the plaintiff as a witness before the lower court is fatal to the case of the appellant/plaintiff. He has also not taken any steps to get the disputed signature in Ext.A1 examined by a handwriting expert. Further, the appellant/plaintiff has not chosen to examined any witness to prove the execution of the promissory note. Under these circumstances I am of the view that the lower court was perfectly justified in coming to the conclusion that the appellant/plaintiff has failed to prove the execution of Ext.A1 promissory note by the respondent/defendant and that the same is supported by consideration. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed with costs. P.Q. BARKATH ALI, JUDGE mt/-