IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 CRP.No. 1112 of 2005() ---------------------- AS.128/2001 of SUB COURT, MUVATTUPUZHA OS.89/1997 of MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER:(RESPONDENT IN A.S. AND THE PLAINTIFF IN O.S) ------------------------------------------------------------------------------ SAJU.K.PAUL, S/O.K.P.PAILY, MANAGING PARTNER, AUTOSIB SPARE PARTS, JEWEL JUNCTION, VYAPARA BHAVAN, KOOTHATTUKULAM, RESIDING AT KUTTICHIRAYIL HOUSE, KARIMPANA P.O. BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE RESPONDENT: (APPELLANT IN A.S. AND DEFENDANT IN O.S) ------------------------------------------------------------------ P.G.THAMPI, S/O.GEORGE, PARAPUTHENPURAYIL, KARIMPARA P.O., KOOTHATTUKULAM-686 662. BY ADV. SRI.P.FAZIL FOR R1 SRI.A.C.THOMAS ADHIKARAM FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/06/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No. 1112 of 2005 ------------------------------------------- Dated this the 9th day of June 2008 ORDER The plaintiff is the revision petitioner in O.S. 89/1997 on the file of the Munsiff Court, Muvattupuzha. The suit is filed for realisation of money. The trial court decreed the suit in favour of the plaintiff. The lower appellate court reversed the decree and judgment in appeal and dismissed the suit. Hence this revision petition is filed at the instance of the plaintiff. The parties hereinafter referred as plaintiff and defendant as in the above said suit. 2. The case of the plaintiff is that on 11.2.1994 the defendant borrowed an amount of Rs. 15,000/- from the plaintiff and executed Ext.A1 promissory note. The defendant has promised to repay the amount along with interest at the rate of 18% per annum on demand. In spite of the issuance of lawyer's notice the defendant failed to pay the amount. Hence the suit was filed. 3. The defendant entered appearance and denied the execution of the promissory note. According to him, the amount he received by way of cheque in 1994 from the firm was towards remuneration due to the defendant. 4. Before the trial court , PWs 1 and 2 were examined and Exts A1 to A3 were produced and marked on the plaintiff's side. The C.R.P No. 1112 of 2005 -2- defendant was examined as DW1. The trail court relied on the oral evidence of PW1 and his witness as PW2. Based on the evidence of PWs 1 and 2 the trial court held that the defendant received 5,000/- as cash and Rs.10,000/- by way of cheque and executed Ext.A1 promissory note. The trial court also noticed the fact that the defendant did not care to reply to Ext.A2 lawyer notice. PW2 is a witness to the transaction and he is a signatory to Ext. A1 Promissory note Therefore PW2 was examined to prove the execution of Ext.A1 by Promissory note He also deposed that in terms of the evidence of the plaintiff. 5. The defendant raised all sorts of contentions He had contended that the promissory note is issued to the plaintiff, in his capacity as managing partner of the firm and therefore the firm is a necessary party to the suit. The further contention that defendant was an employee of the previous owner of the shop and according to him, he was helping the plaintiff, for managing the shop and an amount of Rs. 10,000/- was given to him as a cheque towards his remuneration. The trial court examined this contention and came to the conclusion that the contention of the defendant that he was taking the stock of the shop from October to January and for that, the plaintiff paid Rs. 10,000/- as remuneration cannot be believed. All the contentions raised by defendant including the denial of his signature in Ext. A1 of promissory note was considered and the trial court came to the conclusion that since the plaintiff C.R.P No. 1112 of 2005 -3- has proved his case and therefore he is entitled for a decree as prayed for. 6. The defendant filed A.S. 128/2001 before the lower appellate court. The lower appellate court approached the issues in a different angle. The lower appellate court assumed that if Rs.15,000/- was borrowed by the plaintiff from the defendant, the plaintiff could have issued a cheque for the entire amount of Rs.15,000/- instead of that, the plaintiff has given Rs. 10,000 by way of cheque and Rs.5,000/- as cash According to the lower appellate court the case set up by the plaintiff is not true . Again the lower appellate court relied on another circumstance for non-suiting the plaintiff. It is the case of the plaintiff that Rs.10,000/- was given from the funds of the firm by way of cheque of the firm and that the balance amount of Rs.5,000/-given to the defendant also belonged to the firm. He has also clarified that the said amount were taken from the firm has been repaid by him. The lower appellate court finds fault with the plaintiff and entered the finding that the account books of the firm would have been the best evidence for the plaintiff to prove the case of borrowal of money put forward by him. But the plaintiff has not cared to produce the same. The lower appellate court after saying so, held that an adverse inference has to be drawn against the plaintiff in this regard Taking into account the facts and circumstances mentioned above the lower appellate court concluded that there was no borrowal of Rs. 15,000/- by the defendant from the plaintiff. C.R.P No. 1112 of 2005 -4- 7. On a reading of the judgment under revision, I find that the lower appellate court did not go into the question as to whether there is satisfactory proof of execution of Ext A1 Promissory note and receipt of money by the defendant etc. The trial court rightly held that the PW1's evidence supported by PW2's oral evidence and other attendant circumstances and came to a conclusion that defendant borrowed money. Before the trial court, the plaintiff not only had produced the promissory note, the lawyer's notice ,and the postal acknowledgment card etc, but also proved the execution of Ext. A1 Promissory note through PW2. Without analysing or appreciating the evidence on record the lower appellate court rests its decision on two circumstances which are not probable and believable. The defence set up by the defendant that the amount given was towards wages is one of the circumstances that may come against the plaintiff because in the normal circumstances no employer of the firm who had employed as workman, pay the salary and subsequently turn around to file a suit for realising the amount. The defendant has no case that he is an employee of the shop. It was come out in evidence the defendant was an employee of the previous owner of the shop It is only believable from the plaintiff's version that due to acquaintance at the time of opening of the new shop or on request from the defendant, the plaintiff might have helped him by giving the amount by way of loan. 8. The reasons stated by the lower appellate court for reversing C.R.P No. 1112 of 2005 -5- the judgment and decree of the trial court is unsustainable under law. In the circumstances I find that the judgment under appeal is liable to be set aside. 9. The counsel for the respondent submitted that interest at the rate of 18% per annum decreed by the trial court is unconscionable and excessive and therefore he requested this court to reduce the interest rate to a reasonable one. The interest decreed by the court at the rate of 18% is modified and reduced to 12% per annum after hearing both sides. Accordingly, the interest rate awarded at the rate of 18% by the trial court is modified and fixed at 12% on the said amount from the date of filing of the suit till realisation. In the result, this Civil revision petition is partly allowed. The judgment and decree of the lower appellate court is set aside. The judgment and decree passed by the trial court is restored. There will be no order as to costs. HARUN-UL-RASHID, JUDGE es