IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 AS.No. 501 of 2002() ------------------------- OS.45/1996 of SUB COURT,THODUPUZHA .................... PETITIONER/APPELLANT(S): DEFENDANT: -------------------------------------------------- BABUJI, S/O. K.N. DAMODARAN, AGED 46 YEARS, KOVALAYIL HOUSE, VENGALLOOR KARA, KUMARANMANGALAM VILLAGE, VENGALLOOR P.O., THODUPUZHA TALUK. BY ADVS. SRI.R.DIVAKARAN SRI.BINOI GEORGE (CHERUKARA) SRI.VINUCHAND RESPONDENTS/RESPONDENT(S): PLAINTIFF: ----------------------------------------------------- M.P. GEORGE, S/O. VARKEY PAPPACHAN, AGED 44, MUNDACKAL HOUSE, PERUMBAVOOR, PROPRIETOR, MUNDACKAL ENTERPRISES, PERUMBAVOOR. BY ADVS. SRI.MATHEW SKARIA SRI.JOSE THOMAS (PEEDIKAYIL) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ M.N. KRISHNAN, J. ........................................... A.S.NO.501 OF 2002 ............................................. Dated this the 10th day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thodupuzha in O.S.No.45/1996. The suit is one for realisation of the amount. It is the case of the plaintiff that the defendant had borrowed at the rate of Rs.19,500/= on 21.3.1994, 5.4.1994 and 9.5.1994 with the stipulation to pay interest at the rate of 18% by executing promissory notes. In spite of demand the defendant has not paid the amount, hence the suit. 2. The defendant, on he other hand, would contend that it is not correct to state that the amount is due as claimed by the plaintiff. According to him, the amount which he had borrowed on 21.3.1994 had been repaid on 5.4.1994 and the amount which he had borrowed on 5.4.1994 had been repaid on 9.5.1994 and therefore the only outstanding amount is the amount borrowed on 9.5.1994. It is also submitted that he had not received any notice and therefore the plaintiff is not entitled to the relief as prayed for. : 2 : A.S.NO.501 OF 2002 3. In the trial court, PW1 and DW1 were examined and Exts.A1 to A18 were marked. On an analysis of the materials the trial court had granted a decree with future interest at the rate of 12%. It is against that decree, the defendant has come up in appeal. 4. Heard the learned counsel for the appellant as well as the respondent. It is the case of the plaintiff that on three dates namely 21.3.1994, 5.4.1994 and 9.5.1994, the defendant had executed a promissory note for Rs.19,500/= each and had received consideration and had not paid the amount. The defence on the other hand is that the amount which was borrowed on 21.3.1994 was discharged on 5.4.1994 and the amount that was borrowed on 5.4.1994 was discharged on 9.5.1994 and only the amount borrowed on 9.5.1994 remains to be discharged. When a plea of discharge is pleaded, the burden is squarely upon the defendant to prove it. 5. Now the learned counsel for the appellant had relied upon some of the entries in the ledger maintained by the plaintiff. Ext.A10 is one of such ledger. In page 282 dated 21.3.1994 it is seen that an entry is made on receipt : 3 : A.S.NO.501 OF 2002 Rs.19,500/= as item 13 and another entry is made as advanced Rs.19,500/= as item 14. It also states about the renewal of a demand promissory note. Ext.A11 page 3 would show that there is an entry on 5.4.1994 as item 17 regarding receipt of Rs.18,500/= and advancement of Rs.19,500/= as the next item. In page 27 there is an entry on 9.5.1994 regarding receipt of Rs.18,500/= and then advancement of Rs.19,500/=. So there is receipt and advance. In order to explain these things, the plaintiff had produced documents of the year 1991. Those documents of the year 1991 would reveal that the defendant had borrowed money from the plaintiff. In Ext.A15 it is seen that at page 290 the defendant had received Rs.19,500/=. In Ext.A17 at page 5 it is seen that the defendant had received an amount of Rs.18,500/= on 5.4.1991 and in Ext.A17 page 30 on 8.5.1991 an amount of Rs.18,500/= is received by the defendant. 6. Now the contention of the plaintiff is that the entry regarding repayment relates to these transactions and therefore they are not the transactions as contended by the : 4 : A.S.NO.501 OF 2002 defendant. Even if it is a renewal, it can be seen that none of the amounts are repaid. Therefore the liability of the defendant remains. So the contention of the learned counsel for the plaintiff is that there has been a discharge as contended by the defendant cannot be accepted. The plaintiff has succeeded in establishing regarding the receipt of money and also advancement of the amount by the documents, Exts.A10, A11 and A16 to A18. Therefore in the absence of evidence of discharge, the defendant is liable to pay the amount. 7. I am conscious of the fact that when rate of interest is stipulated in the promissory note, it is a contract and further borrowal is for the purpose of commercial purpose. But I am informed that the defendant has failed in his business to a great extent. So in order to at least mitigate to a smaller extent, I reduce the interest to 12% from the date of promissory note till realisation. In the result, the judgment and decree of the trial court are confirmed with the modification that the respective amounts in the promissory note have to be paid with 12% : 5 : A.S.NO.501 OF 2002 interest on the said sum from the date of the promissory note till realisation. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.501 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.501 OF 2002 ............................................. 10th day of November, 2010. J U D G M E N T