IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 AS.No. 729 of 2000(C) --------------------- OS.1200/1995 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): (DEFENDANT): ----------------------------------------------- B.RAJASEKHARAN NAIR, GOVERNMENT CONTRACTOR, ASWATHY, PUNNAMOODU JUNCTION, PALLICHAL P.O., THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): (PLAINTIFF): ----------------------------------------------- *M.MARTHANDAN, P.P.NO.12/1146, PALLICHAL P.O., THIRUVANANTHAPURAM. ( D I E D) - LR'S IMPLEADED: *R2 TO R4 IMPLEADED: R2. MAHESWARI AMMA, W/O/.LATE MARTHANDAN, AGED 52, RESIDING AT UTHRITATHI, PALLICHAL P.O., THIRUVANANTHAPURAM. R3. M.MURALIKRISHNAN, S/O.MARTHANDAN, AGED 24, RESIDING AT ..DO..DO.... R4. M. MUKILKRISHNAN, S/O. MARTHANDAN, AGAED 22, RESIDING AT ..DO..DO... (*THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 VIDE ORDER DTD. 8/06/10 IN I.A.NO.4607/06) R2 TO R4 BY ADVS. SRI.VADAKARA V.V.N.MENON, SRI.T.N.SUKUMARAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.6643/2000 IN AS.NO.729/2000 DISMISSED 28/06/2000 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 729 OF 2000 = = = = = = = = = = = = = = = Dated this the 28th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the 2nd Addl. Subordinate Judge, Thiruvananthapuram in O.S.1200/95. The suit is one for realisation of the amount due under a promissory note and the plaintiff has been granted a decree for realisation of Rs.74,000/- with interest at 6%. It is against that decree the defendant has come up in appeal. During the pendency of the suit the plaintiff died and legal representatives are impleaded as supplemental respondents 2 to 4. The brief facts necessary for the disposal of the appeal are stated as follows. 2. It is the case of the plaintiff that towards the settlement of the accounts under a A.S. 729 OF 2000 -2- contract it was found that Rs.81,500/- was outstanding as dues from the defendant to the plaintiff and on 6.12.92 it is contended that the defendant had executed three promissory notes for a sum of Rs.50,000/-, Rs.20,000/- and Rs.11,500/- respectively. He had wiped off the transaction in two promissory notes, Rs.20,000/- and Rs.11,500/- and he has not paid any amount due under the promissory note of Rs.50,000/- and therefore interest at the rate of 18% on Rs.50,000/- plus the principal sum is the subject matter of the litigation. 3. On the other hand the defendant would contend that on calculation an amount of Rs.50,000/- was found to be outstanding and he has executed promissory note for Rs.50,000/-. He has not executed promissory notes for A.S. 729 OF 2000 -3- Rs.20,000/- and Rs.11,500/- as contended by the plaintiff and that towards the discharge of that liability under the promissory note for Rs.50,000/- he had paid Rs.20,000/- and Rs.11,500/- and therefore only the plaintiff is entitled to a decree for Rs.16,500/- with interest. The Court on an analysis did not accept the case of the defendant and granted a decree for Rs.74,000/-. 4. Heard the counsel for both the sides. Learned counsel for the appellant would contend that there is nothing on record to how that the defendant has executed two promissory notes of Rs.20,000/- and Rs.11,500/- on 6.12.92 as contended by the plaintiff. It is also argued by him if an amount of Rs.81,500/- was outstanding on 6.12.92 under the ordinary human A.S. 729 OF 2000 -4- course of conduct one promissory note for Rs.81,500/- alone will be taken. According to him he had paid Rs.20,000/- towards the amount due under Ext.A1 on 24.1.93 and Rs.11,500/- on 8.6.95. The learned counsel for the respondent would contend that the contention of the defendant is not true and he had produced documents in the form of Exts.A8 and B7 which would show that he had initiated action against the defendant for realisation of Rs.11,500/- on the dishonoured cheque which was issued towards the discharge of liability of the promissory note for Rs.11,500/-. But the definite case of the defendant is that Rs.11,500/- cheque was given towards Ext.A1 transaction and when that cheque was dishonoured the case was initiated. Learned counsel for the respondents had put a A.S. 729 OF 2000 -5- question why a cheque for Rs.11,500/- should be given. It has to be remembered that the same question is answered by the defendant in his reply notice. When Rs.20,000/- was given he insisted for the interest on the amount and on that date he had given a cheque for the future amount and that is how a cheque for Rs.11,500/- happened to be issued. It has also to be remembered that in the ordinary human course of conduct suppose three promissory notes are executed and amounts are due and when Rs.20,000/- is paid on 24.1.93 nobody would pay the amount to the promissory note for Rs.20,000/- because again interest will be due on that amount whereas one will like to clear the liability due under a lesser amount that is Rs.11,500/- and wipe off that liability and pay A.S. 729 OF 2000 -6- the balance to the other transaction. Now when a receipt is issued regarding Rs.20,000/- the plaintiff does not state anything about the execution of three promissory notes. He just says about a solitary promissory note. Further he would contend that promissory notes for Rs.20,000/- and Rs.11,500/- had been given back to the defendant. Therefore he is not able to produce the same. But even for the anterior transaction prior to the same which is wiped off he is able to produce the photocopies of the demand promissory notes. So when such is the nature of the conduct especially an advocate by profession certainly he would have got photocopies of the promissory note. So non production of even photocopies of these promissory notes especially in the back drop of A.S. 729 OF 2000 -7- producing promissory notes of earlier times would show that all is not well with the case of the plaintiff. 5. Now it was argued on the private complaint filed u/s 138 of the Negotiable Instruments Act. There is a recital in the complaint that three promissory notes were executed and ultimately the plaintiff himself files a statement before the Magistrate Court stating that the amount due under the dishonoured cheque has been received and therefore he may be permitted to withdraw the private complaint. When the parties have already gone to the Court that too in the nature of a criminal proceedings and when they compromised the matter one would clearly expect them to file a statement detailing the A.S. 729 OF 2000 -8- transaction and then entering into a compromise. Therefore it is always possible for a clever plaintiff to file a complaint and withdraw the same stating amount is paid. Therefore the mere production of Ext.A8 complaint and Ext.B7 document by the other side would not reveal that the promissory note for Rs.11,500/- is admitted by the defendant. So the following circumstances are really against the plaintiff. (1) The necessity to execute three promissory notes on the very same date by the very same person in favour of the same person. It is quite an unnatural conduct. (2) When a receipt is issued especially in the back drop if three promissory notes are there it should have been stated for which promissory note the amount is given. The absence of the same also indicates A.S. 729 OF 2000 -9- that there is only one promissory note. (3) Then the settlement of the case u/s 138 of the N.I.Act without making any proper statement would show that all is not well with the case of the plaintiff. Therefore under these circumstances I find that the plaintiff has only succeeded in proving regarding one promissory note, i.e. Rs.50,000/- which is submitted under Ext.A1 and by virtue of the receipt as well as the receipt of consideration, later Rs.31,500/- has been paid, i.e. Rs.20,000/- on 24.1.93 and Rs.11,500/- on 8.6.95. A reasonable rate of interest of 12% has to be given till the date of decree. The promissory note was executed on 6.12.92 and the first payment of Rs.20,000/- was made on 24.1.93, that is almost after 1½ months. At the rate of 12% interest will come to about A.S. 729 OF 2000 -10- Rs.1,000/- which is to be credited towards interest and if it is done the balance amount would come to Rs.31,000/-. For Rs.31,000/- from 24.1.93 to 8.6.95, i.e. 30 months at the rate of 12% interest will come to Rs.9,300/- till 8.6.95. It makes a consolidated sum of Rs.40,300/-. On that date Rs.11,500/- is paid so the balance amount will come to Rs.28,800/-. Of this amount of Rs.11,500/- only Rs.9,300/- is towards interest so Rs.2,200/- has to be adjusted towards the principal. So the principal amount due on 8.6.1995 would be Rs.26,600/-. From 8.6.1995 till the date of decree, i.e. 19.12.98 the defendant has to pay interest at the rate of 12% on the sum of Rs.26,600/- and from the date of decree at the rate of 6% interest only. In the result the A.S. 729 OF 2000 -11- appeal is partly allowed and a revised decree is passed as follows. 6. The legal representatives of the plaintiff are given a decree for realisation of Rs.28,800/- with 12% interest on Rs.26,600/- from 9.6.95 to 19.12.98 and at the rate of 6% from 20.12.98 till realisation from the defendant with proportionate costs in the suit. In the appeal parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 729 OF 2000 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 729 OF 2000 = = = = = = = = = = = J U D G M E N T 28th June, 2010.