IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 AS.No. 717 of 1995() -------------------- OS.247/1993 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/DEFENDANT:- ------------------------------ VELAYUDHAN ACHARI SURESH KUMAR, V.R. BHAVAN, EDATHARA MURI, ANDOORKONAM VILLAGE. BY ADV. MR. B.KRISHNA MANI RESPONDENT/PLAINTIFF:- ------------------------------ GANGADHARAN ANANDAN, CHARUVILA PUTHEN VEEDU, MANICKAL MURI, KOLIYAKKODU VILLAGE. ADV. MR. S.SOMAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 717/1995 : 2 : ORDER ON C.M.P. NO. 5212/1995 IN A.S. NO. 717/1995 DISMISSED 10.08.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- A.S. Nos. 717 of 1995 ------------------------------------------------------------ Dated this the 10th day of August, 2009. JUDGMENT The defendant in O.S No. 247 of 1993 on the file of the Sub Court, Attingal is the appellant. The said suit instituted by the respondent herein was one for realisation of a sum of Rs.31,650/- with interest at the rate 12% per annum from the date of suit till realisation with costs and charged on the assets of the defendant. 2. The case of the plaintiff can be summarised as follows:- On 20.01.1993, the defendant borrowed a sum of Rs.15,000/- from the plaintiff and executed Ext.A1 promissory note. Subsequently, he borrowed another sum of Rs.15,000/- on 17.11.1993 and executed Ext. A2 promissory note which was registered. After Ext.A2 promissory note, the defendant sold away the properties belonging to his father and was attempting to leave India. Even though the plaintiff demanded repayment of the money with interest, the A.S. No. 717/1995 : 2: defendant did not oblige. The defendant did not pay the amount even after the intervention of mediators. Hence the suit. 3. The suit was resisted by the appellant contending inter alia as follows:- It is true that this defendant borrowed a sum of Rs.15,000/- from the plaintiff on 20.01.1993 and he had given a signed blank paper in which he had written Rs.15,000/- in words and figures and handed over the same to the plaintiff in November, 1993. The plaintiff approached him and asked him to execute and register a promissory note for Rs.15,000/- borrowed by him on 20.01.1993. He obliged to the plaintiff and that was how Ext.A2 registered promissory note came to be executed. Thereafter, the defendant demanded the signed blank paper back. Even though the plaintiff promised him to return the same, he failed to do so. The plaintiff concocted Ext.A2 promissory note and put the date as 17.11.1993 by making use of the signed blank paper. This defendant is liable to pay only a sum of Rs.15,000/- which he is prepared to A.S. No. 717/1995 : 3: pay in instalments of Rs.200/- per month. The plaintiff is not entitled to the suit amount and the suit may be dismissed with costs. 4. The court below framed five issues for trial. On the side of the plaintiff, he examined himself as PW1 and got marked Exts.A1 and A2 promissory notes. On the side of the defendant/appellant, he examined himself as DW1 and two other witnesses as DWs 2 and 3 and got marked Ext.B1 petition. 5. The learned Subordinate Judge, after trial, came to the conclusion that the defence set up by the appellant is not true and accordingly decreed the suit after upholding the plaintiff's contentions. It is the said decree which is assailed in this appeal. 6. The learned counsel appearing for the appellant/defendant reiterated the contentions of the appellant by submitting that the plaintiff who is a money lender, was trapping the defendant by converting the signed blank paper into Ext.A2 registered promissory note and that A.S. No. 717/1995 : 4: the defendant was liable only to the sum of Rs.15,000/- which he had borrowed on 20.01.1993. 7. I am afraid that I cannot agree with the above submissions. Admittedly, the appellant had borrowed a sum of Rs.15,000/- from the plaintiff on 20.01.1993, that is, the date on which Ext.A1 promissory note is executed. According to him, at the time of borrowal, he had given a signed blank paper writing the sum of Rs.15,000/- in words and figures and thereafter when the plaintiff requested him to execute a registered promissory note for the amount, he obliged the plaintiff. The defendant would have it that subsequently when he demanded the signed blank blank paper, the plaintiff who promised to return the same, was cheating him. If as a matter of fact, he had given a signed blank paper after borrowing Rs.15,000/- from the defendant, then he would not have obliged the defendant to execute Ext.A2 promissory note without getting back the signed blank paper which he had allegedly entrusted with the plaintiff. As rightly observed by the trial Judge, as a reasonable and prudent man, he would A.S. No. 717/1995 : 5: not have executed the two documents in relation to a single transaction of borrowal made by him. The trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility, had chosen to disbelieve the witnesses examined by the appellant in preference to the testimony of the plaintiff examined as PW1. This Court sitting in appeal, will be loath to interfere with the said finding based on an appreciation of the oral evidence. (See Madhusudan Das v. Narayani Bai - AIR 1983 SC 114) 8. For the foregoing reasons this appeal which is devoid of any merit is accordingly dismissed. The parties shall bear their respective costs. Dated this the 10th day of August, 2009. V. RAMKUMAR, JUDGE. rv A.S. No. 717/1995 : 6: V. RAMKUMAR, J. ------------------------------------------------- A.S. No. 717 of 1995 -------------------------------------------------- Dated this the 10th day of August, 2009. JUDGMENT A.S. No. 717/1995 : 7: