IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 202 of 2009() --------------------- AS.20/2002 of D.C. & SESSIONS COURT,KOLLAM OS.549/2000 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT IN A.S.NO.20 OF 2002/DEFENDANT IN O.S.549/2000: --------------------------------------- JACOB JOHN, LILLY HOME, ARINNALLOOR (PO), KOVOOR MURI, MYNAGAPPALLY VILLAGE, KUNNATHUR TALUK. BY ADV. SRI.JUBYRAJ.A.P SRI.VARGHESE K.PAUL SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENT/RESPONDENT IN A.S.NO.20/2002/PLAINTIFF IN O.S.549/2000: ------------------------- RAJ MOHAN, S/O.CHANDRASEKHARN PILLAI, MARAYAADIYIL VEETTIL, NADUVILAKKARA MURI, KUNNATHUR TALUK. ADV. SRI.J.OM PRAKASH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.202 of 2009 --------------------------------------- Dated this 22nd day of March, 2010 JUDGMENT This appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.20 of 2002 confirming judgment and decree of learned Munsiff, Karunagappally in O.S.No.549 of 2000 granting decree in favour of respondent for realisation of amount allegedly due from the appellant under Ext.A1, demand promissory note. According to the respondent, appellant borrowed Rs.85,000/- from him on 15-12-1999 and executed Ext.A1. He gave notice to the appellant on 04-02-2000 demanding payment of the amount, notice was served on him and appellant issued Ext.B7, reply denying any transaction with respondent. According to the appellant, he had a vehicle transaction with one Isahac who wanted appellant to pay Rs.38,000/- to one Radhakrishna Pillai and on 28-09-1999 appellant paid Rs.20,000/- to the said Radhakrishna Pillai, balance amount payable to the said Radhakrishna Pillai was Rs.18,000/-. Respondent who is related to the said Radhakrishna Pillai has filed a suit at the instance of the said Radhakrishna Pillai. Respondent gave evidence as PW1 and testified to his case. He proved Ext.A1. PW2 is a witness in Ext.A1 who supported case of respondent. Appellant gave contra evidence as DW1 and denied execution of Ext.A1. DW2 is an Advocate who had R.S.A.No.202 of 2009 2 issued Ext.B3, notice to the appellant on behalf of Radhakrishnan Pillai claiming that appellant had borrowed Rs.60,000/- from the said Radhakrishna Pillai on 20-12-1999 and executed a demand promissory note. Courts below found against the contentions raised by the appellant, held in favour of due execution of Ext.A1 and granted decree as prayed for in favour of the respondent. Hence the second appeal urging by way of substantial question of law whether in view of section 269SS of the Income Tax Act (for short, “the Act”) courts below were justified in granting decree in favour of the respondent. Learned counsel for appellant contends, apart from the above question that finding of the courts below as to due execution of Ext.A1 cannot be sustained. According to learned counsel, Ext.B3 would show that there was no due execution of Ext.A1. Learned counsel for respondent would submit that no substantial question of law as suggested in the memorandum of second appeal or as argued by learned counsel arose. 2. Ext.A1 is the demand promissory note for Rs.85,000/-. According to the respondent, he paid the sum of Rs.85,000/- to the appellant on 15-12-1999. The contention raised is that any payment exceeding Rs.20,000/- should be by way of cheque or demand draft as provided under section 269SS of the Act and if any payment is made in violation of the said provision such amount is not legally recoverable. True, in section 269SS of the Act it is stated that any payment exceeding Rs.20,000/- has to be by cheque or demand draft. But on R.S.A.No.202 of 2009 3 reading that provision I can only understand that if any payment otherwise than as provided therein is made, the person making payment is liable for penal consequence referred to therein but, that does not make the amount paid otherwise than by cheque or demand draft not legally recoverable. This court while considering recovery of amount due under a chitty conducted in violation of the Chitties Act held in Nadarajan Vs. Nadarajan (1999(2) KLT 512) and Employees Kuries Ltd Vs. Claramma (2009(4) KLT 786) that the amount cannot be said to be not recoverable. The same principle should apply to the argument advanced by learned counsel. 3. So far as argument regarding due execution of Ext.A1 is concerned courts below from the evidence of PWs.1 and 2 found in favour of its due execution. In evidence appellant stated as DW1 that respondent may have copied his signature from the promissory note he had executed in favour of Radhakrishna Pillai, a close relative of the respondent. Evidence of DW2 and Exts.B3 and B4 only show that in respect of a transaction appellant allegedly had with Radhakrishna Pillai, DW2 had issued notice to the appellant and that notice was replied. It is not shown that there is any connection between the said transaction and the transaction which culminated in Ext.A1. It is also seen from the judgment of trial court that appellant went to the extent of denying his signature in vakkalath filed on his behalf in the trial court in his attempt to deny the signature in Ext.A1. Courts below R.S.A.No.202 of 2009 4 found that the evidence of DW1 is not reliable. Finding regarding execution of the cheque is on the evidence on record and does not involve any substantial question of law. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/