IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 AS.No. 665 of 1994() ----------------- OS.462/1993 of SUB COURT, NEYYATTINKARA .............. APPELLANT / PLAINTIFF : -------------------------------------- YOHANNAN NADAR, AGED 47, S/O. CHELLAYYAN NADAR, NANNANKUZHI THEKKEUMKARA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADVS. SRI.G.S.RAGHUNATH SRI. M.RAMASWAMY SRI.MOHAN JACOB GEORGE RESPONDENT / DEFENDANT : ------------------------------------------- LAWRANCE, S/O. JOSE, AGED 45, CHAKKIPPARA KUNNUVILA PUTHEN VEEDU, KONNIYOOR, PERUMKULAM VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. BY ADVS. SRI.PHILIP M.PRASAD SRI. B.V. JOYSANKAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 665 OF 1994 = = = = = = = = = = = = = = = Dated this the 1st day of February , 2011. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Neyyattinkara in O.S.462/93. The suit is one for realisation of the amount due under a promissory note. As per the plaint averments the defendant had executed a promissory note on 28.7.86 and had received a consideration of Rs.20,000/- with a promise to pay on demand and thereafter not repaid the amount in spite of notice hence the suit for realisation of the amount. 2. On the other hand the defendant would contend that the said transaction is not correct, the plaintiff and his wife had transferred some properties in favour of the A.S. 665 OF 1994 -2- defendant and his would be wife for a proper consideration on 26.7.1986 for Rs.60,000/-. The amount was paid then and there. At that time the plaintiff had taken blank signed papers with stamp and had utilized the same to create a document of this nature and therefore the suit is liable to be dismissed. 3. In the trial court PWs.1 to 3 and DW1 were examined and Exts.A1 and A2 and B1 and B2 were marked. On an analysis of the materials the trial court dismissed the suit and it is against that decision the plaintiff has come up in appeal. 4. Heard. The point that arises for determination in the appeal is whether the plaintiff has succeeded in proving the transaction stated in the plaint. It is the definite case of the plaintiff in the plaint A.S. 665 OF 1994 -3- that a promissory note was executed on 28.7.86 and he had advanced a sum of Rs.20,000/- on that day. The defence is of one creating a document in blank signed paper and there was no consideration. The trial court found in favour of the execution but dismissed it on the ground of non supported by consideration. 5. I feel this is a fit case where the matter has to be consolidated and looked together. Ext.B2 is a registered document whereby the plaintiff and his wife had assigned the property in favour of the defendant and his would be wife on 26.7.1986. The date has got significance. The stamp paper was purchased and the document had been written and registered on 26.7.86. Now the alleged promissory note is dated 28.7.86. Unless the plaintiff is able to establish that there was a transaction on A.S. 665 OF 1994 -4- 28.7.86 with passing of consideration the plaintiff will not be entitled to succeed. I had gone through the evidence of PWs.1 to 3. 6. PW1 is the plaintiff. In the chief examination he would depose that the assignment deed in their favour executed by him was on 28.7.86. Thereafter he would submit that the promissory note was written on the same day at 4 p.m. from his house and it was at that time an amount of Rs.20,000/- was paid. So according to the plaintiff the date of Ext.B2 and Ext.A2 are one and the same namely 28.7.86. But a perusal of Ext.B2 would reveal that it is dated 26.7.86. According to the plaintiff it was on the date of Ext.B2 promissory note was executed and the amount was handed over. But Ext.A2 would reveal that it was alleged to be written on 28.7.86 and the consideration was passed on that date. So A.S. 665 OF 1994 -5- further Ext.B2 from the fact of its purchase, date of writing and registration etc. would conclusively show that the document was executed and registered on 26.7.86. When Ext.B2 is accepted which has to be accepted then Ext.A2 cannot be accepted in the light of the evidence of plaintiff that Ext.A2 was written on a date when Ext.B2 was written and registered. 7. Now the learned counsel for the appellant when faced with such difficult situation would contend that the plaintiff thought that the date of execution of Ext.B2 was 28.7.86 and he would further submit that in the promissory note the date 28.7.86 would have been a post dated one. There is no case for the plaintiff anywhere that in fact a promissory note was executed on 26.7.1986 but the date was put as 28.786. The plaintiff has not taken any A.S. 665 OF 1994 -6- steps to amend the plaint nor the notice and did not also explain in the evidence that he has got such a case. So that is the evidence of PW1. 8. PW2 is one of the witnesses to Ext.A2. His evidence also would show that the document was written on the date shown therein. According to them also on the date of the registration of the document there was a demand for the amount and thereafter the amount was paid on that date. So the evidence of PW2 also would relate to a transaction dated 26.7.86 namely the date of registration of the document. But in the cross examination he would say that the date of execution was 28.7.86. But in fact it was 26.7.1986. Therefore the evidence of PW1 and PW2 when analysed would show that the money transaction which they claim under Ext.A2 had taken place on 26.7.86 whereas Ext.A2, A.S. 665 OF 1994 -7- promissory note, the plaint, the lawyer notice etc. would show that the sale has taken place on 26.7.1986 and the promissory note transaction was on 28.7.86. Therefore the case pleaded by the plaintiff in the plaint is not established. Since the suit being one of promissory note and when the plaint transaction which is alleged under the plaint is not proved the plaintiff is not entitled to any relief. Therefore I also cannot grant a decree in his favour. Hence the appeal fails and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 665 OF 1994 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 665 OF 1994 = = = = = = = = = = = J U D G M E N T 1st February, 2011.