IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 AS.No. 516 of 1998() -------------------- OS.2/1991 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/DEFENDANT: ----------------- V.K.SIVANANDAN, S/O. GOVINDAN, VADAKKEKKANNACHALIL, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.V.SOHAN SRI.B.PREMNATH SRI.K.RAJEEV RESPONDENT/PLAINTIFF: ------------------- K.T. PRASAD, S/O.K.T.GOVINDAN, (CORRECTED) OTHAYAMANGALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK. K.T. PRASAD, S/O.GOPALAN, OTHAYAMANGALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK. THE WORD 'GOVINDAN' APPEARING IN THE ADDRESS OF THE RESPONDENT IN THE CAUSE TITLE STANDS CORRECTED AS 'GOPALAN' AS PER ORDER DATED 4/10/2010 IN IA.NO.3555/10. ADV. SRI.A.SUDHI VASUDEVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.564/99 IN A.S.NO.516 OF 1998 ------------- DISMISSED 10/12/2009 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. -------------------------- A.S.NO.516 OF 1998 -------------------------- DATED THIS THE 10TH DAY OF DECEMBER, 2009 JUDGMENT Defendant in O.S.No.2/91 on th file of the Sub Court, Kozhikode is the appellant. The suit was filed for recovery of Rs.54,280/- with interest at 6% per annum on the principal sum of Rs.46,000/-. The trial court decreed the suit. Aggrieved by the judgment and decree, the defendant has preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The transaction alleged in the plaint was on 3/1/1988. The plaintiff alleged that the defendant borrowed a sum of Rs.46,000/- from the plaintiff agreeing to pay it with interest at 18% per annum and a promissory note was executed by the defendant in his favour. The defendant did not repay the amount. Hence, the suit was filed for realisation of Rs.70,840/-. -2- A.S.No.516/98 The defendant in the written statement admitted the transaction. He denied the execution of promissory note and contended that the promissory note produced by the plaintiff is a fabricated document. The plaintiff misused the blank signed papers obtained from the defendant. It is also contended that there was no stipulation for paying interest on the amount borrowed and that the parties agreed to create a document and the plaintiff, defendant and his father executed a document on 20/4/1988 as per which Rs.20,000/- was returned to the plaintiff on 30/4/1988 and the balance amount of Rs.26,000/- was repaid on 30/5/1988. Plaintiff was examined as PW1 and the defendant and his father was examined as Dws.1 and 2 and Exts.A1 to A3 and B1 and C1 were marked. 3. The plaintiff as PW-1 testified before the court below that Ext.A1 promissory note was executed by the -3- A.S.No.516/98 defendant and an amount of Rs.46,000/- was paid to the defendant. The defendant admitted that he borrowed a sum of Rs.46,000/- from the plaintiff; but contended that there was no stipulation to pay any interest and no promissory note also was executed by him. The defendant admitted his signature in Ext.A1 promissory note. His contention is that the plaintiff misused the blank signed papers obtained from him. It is the case of the defendant that he signed a blank paper affixed with revenue stamp, that the said blank paper was later misused by the plaintiff, that the plaintiff in this case is a money lender by profession and that he is the proprietor of the money lending business by name “Prasad Bankers”. The trial court held that there is no dispute regarding the receipt of Rs.46,000/- on 3/1/1988, that the defendant also admitted that two of his title deeds were handed over as security for the loan and that in such -4- A.S.No.516/98 circumstances, his case that no promissory note was executed for availing the loan is not believable. The trial court observed that naturally and in the ordinary course of human conduct, the plaintiff, who is a money lender by profession and is conscious enough to get title deeds of the property as security, will not advance money without any proper document and concluded that Ext.A1 promissory note was executed by the defendant. The trial court also held that the burden is on the defendant to establish the circumstances in which he signed the blank paper affixed with revenue stamp. The trial court found that there is no independent evidence in this regard. So the execution of the promissory note stands proved by the plaintiff. Though the promissory note contained stipulation to pay interest at the rate of 18% per annum, the trial court held that since it is not a commercial transaction, the plaintiff is entitled to recover only interest at the -5- A.S.No.516/98 rate of 6% per annum. 4. The trial court also considered the question of discharge of the entire liability as pleaded by the defendant. The case of the defendant is based on Ext.B1 agreement. The appellant/plaintiff contended that as per the stipulation in Ext.B1 Rs.20,000/- was paid on 30/4/1988 and the balance amount on 30/5/1988. In order to prove the repayment of Rs.20,000/- on 30/4/1988 the appellant relied on the endorsement on the reverse page of Ext.B1, which according to him, was made by him in the presence of the witnesses. The plaintiff disputes the receipt of the amount and contended that this a fabrication of the defendant. The final payment of Rs.26,000/-, according to the defendant, was paid on 30/5/1988. The explanation for not making any endorsement on the reverse page of Ext.B1, according to the defendant, is that the plaintiff told him that it is not necessary to -6- A.S.No.516/98 make any endorsement and offered to return the documents later. The court below held that the endorsement for receipt of the amount was not duly proved and marked in the case. 6. The trial court held that the endorsement, which according to the defendant, is the receipt for payment of Rs.20,000/- , which is not duly stamped and no stamp duty and penalty was paid. DW1 testified before the court below that he paid Rs.20,000/- in the presence of the witnesses. The endorsement does not show that the same was recorded in the presence of witnesses. Moreover, the defendant did not examine any witness to prove the discharge of liability. The endorsement relied on by the defendant cannot be acted upon for the simple reason that there was no attestation by the witnesses. Another reason is that the plea of discharge cannot be acted upon, even if it is accepted that the amount was paid in the presence of witness -7- A.S.No.516/98 or witnesses for the reason that the defendant did not examine any witness, who according to him, was present at the time of discharging the liability. 7. The trial court sent Ext.B1 document to the Expert for comparison of the signature in Ext.B1 with the endorsement on the first page for payment of Rs.20,000/-. Ext.C1 is the report submitted by the Expert. With regard to the signature, the Expert has not given any opinion, though he stated that the other writings are similar to the admitted writings of the name of the plaintiff. Expert's opinion is not much helpful to the defendant especially when the burden to prove the receipt of payment and the signature of the plaintiff is on the defendant. In this case the Expert has not definitely stated an opinion regarding the entire writings seen on the reverse side of Ext.B1 and therefore it cannot be acted upon without corroboration. For the aforesaid -8- A.S.No.516/98 reasons, this court is unable to accept the contention of the appellant in this appeal. The trial court also examined all the questions in detail and rightly held that the evidence tendered by the appellant with regard to the plea of discharge cannot be acted upon. 8. The court below ordered recovery of the principal sum with interest at the lowest rate of 6% per annum on the principal amount, though the plaintiff claimed 18% interest from the date of execution of the promissory note till the date of suit and the very same rate thereafter. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.