IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 AS.No. 521 of 1995() -------------------- OS.331/1993 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): -------------- 1. KURIAN, W/O. THOMMY, AGED 56 YEARS, KANNIKULATH HOUSE, THOMMANKUTTY KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK 2. BENNY, S/O. KURIAN, AGED 26 YEARS, -DO- BY ADV. SRI.P.JACOB VARGHESE RESPONDENT(S): --------------- MARY, W/O. ABRAHAM, AGED 38 YEARS CHITTETHUKUDIYIL, THOMMANKUTHU KARA, VANNAPPPURAM VILLAGE, THODUPUZHA TALUK ADVs. SRI.P.G.K.WARRIAR, MATHEW CHERIAN and V.N.RAJEEV THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO.521 of 1995 * * * * * * * * * * * * * * * * * * Dated: 27th day of May 2009 JUDGMENT The defendants in O.S. No. 331 of 1993 on the file of the Subordinate Judge's Court, Muvattupuzha are the appellants in this appeal. The said suit was one for realisation of a sum of Rs. 32,998/- being the principal amount of Rs. 30,200/- and the interest thereon at the rate of 12 % per annum. 2. The case of the plaintiff's can be summarised as follows:- The first defendant is the father of the 2nd defendant. Both the defendants are neighbours of the plaintiff. They are engaged in the sale of vehicles. The defendants approached the plaintiff with the request for a loan of Rs. 35,000/- stating that they are badly in need of money for conducting the aforesaid business of sale of A.S. No. 521 of 1995 -:2:- vehicles. Since the plaintiff was not having enough money with her she promised to give the money after getting the same from her mother who was residing at Mudavoor. Accordingly, on 2-3- 1993 the plaintiff and the defendants went to Mudavoor . The plaintiff received Rs. 30,200/- from her mother and handed over the same to the defendant. On the same day itself, the defendants jointly executed Ext.A1 promissory note dated 2-3-1993 undertaking to re-pay the amount with 12% interest. Since the amount was not paid, the plaintiff sought the help of her neighbours Daniel and Raju. Even after the intervention of the neighbours, the defendants did not pay the amount. Inquiries revealed that the defendants had landed in financial difficulties and were planning to abscond after selling away their properties. On 15-11-1993, the plaintiff caused Ext.A2 lawyer notice to be sent to the defendants. In Ext.A3 reply notice, the defendants have denied their liability to pay the suit amount. Hence, the suit. 3. In the joint written statement filed by the defendants they contended as follows:- A.S. No. 521 of 1995 -:3:- These defendants had not gone to the house of the plaintiff's mother nor had they received Rs. 30,200/- as alleged. The story of execution of the promissory note at Mudavoor has been invented only to file the suit before the court below. The Sub Court, Moovattupuzha has no territorial jurisdiction to entertain the suit. There was no demand for any amount from the defendants. Daniel and Raju who are close friends of the plaintiff are on inimical terms with the defendants. To Ext. A2 lawyer notice a proper reply was sent. The plaintiff had filed a petition before the Circle Inspector of Police, Thodupuzha with regard to this matter and the grievance voiced in the said complaint was that it was the 2nd defendant who had borrowed the amount and had subsequently refused to repay the amount. In the dispute before the police, the defendants admitted their liability to the extent of Rs. 12,500/-. But since the plaintiff was not willing to settle the matter for Rs. 12,500/-, no settlement of the dispute was achieved. Ext. A1 promissory note is a fabricated document which is not supported by consideration. The plaintiff is known to be doing A.S. No. 521 of 1995 -:4:- money lending business without any valid license. The suit is without any bonafides and is liable to be dismissed with compensatory cost. 4. The court below framed five issues for trial. On the side of the plaintiff, three witnesses were examined as P.Ws 1 to 3 of which P.w.1 is the plaintiff herself. P.W2 is the plaintiff's elder sister's husband residing at Mudavoor. P.W.3 is a neighbour at Mudavoor. Ext.A1 to 3 were marked. On the side of the defendants, four witnesses were examined as Dws 1 to 4 of whom Dws 1 and 3 are the two defendants. Dws 2 and 4 were two other witnesses examined on the side of the defendants. Ext.X1 is the petition submitted by the plaintiff before the C.I. of Police, Thodupuzha on 18-10-1993. 5. The learned Sub Judge, after trial, as per judgment and decree dated 21-12-1994 decreed the suit as prayed for. Hence, this appeal by the defendants. 6. Heard both sides. 7. The learned counsel appearing for the appellants made A.S. No. 521 of 1995 -:5:- the following submissions before me in support of the appeal:- The execution of Ext. A1 promissory note has been specifically denied. Even the court below found that the signatures in Ext.A1 are not similar to the admitted signatures of the defendants. In Ext.X1 complaint dated 18-10-1993 before the C.I. of Police, Thodupuzha with regard to the very same transaction, her specific allegation was that it was the second defendant who had borrowed the amount. But the present suit has been filed on the assumption that the amount was borrowed by both the defendants who are father and son. Ext.A1 promissory note was not executed at Mudavoor which is within the local limits of the Sub Court, Moovattupuzha. The plaintiff's allegation that the cause of action occurred at Mudavoor has been made only with the sole purpose of bringing the case before the Sub Court, Moovattupuzha. Since the want of territorial jurisdiction was raised in the written statement, the court below was not right in holding that that court had jurisdiction to entertain and try the suit. 8. I am afraid that I cannot agree with the above A.S. No. 521 of 1995 -:6:- submissions. The specific case of the plaintiff examined as P.W1 is that both the father and son came along with her to Mudavoor when her mother was residing along with P.W.2 for receiving the sum of Rs. 30,2000/-. It is true that the mother of P.W.1 has not been examined. But then the case of the plaintiff is not that the amounts were borrowed from her mother. On the contrary, her case is that she had taken the defendants to her mother at Mudavoor where her mother was staying along with her elder sister whose husband is P.W.2. Ext.A1 promissory note contains the signatures of both the defendants on the revenue stamps. Pws 2 and 3 are the witnesses to Ext.A1 promissory note. P.W.2 is also the scribe of the said document. Both these witnesses have credibly corroborated the testimony of P.W.1. It may be true that the signatures of the defendants on Ext.A1 do not bear exact resemblance with their admitted signatures. It is common knowledge that no two signatures of a person can be identical. If the defendants were serious in their contention that Ext.A1 was not executed by them, they could have made a request to send the A.S. No. 521 of 1995 -:7:- promissory note to a handwriting expert for comparison and expert opinion. No such gesture was made by the appellants. It must be remembered that in Ext.A3 reply their case was one of total denial. But they subsequently came out with a case that they had borrowed Rs. 12,5000/- from the plaintiff. They have no case that even the admitted amount of Rs. 12,500/- was discharged towards the said loan transaction. Hence, merely from the variation in signatures in Ext.A1 promissory note it cannot be concluded that Ext.A1 was not executed by the defendants. The trial judge who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to accept the testimony of P.Ws 1 to 3. The learned Judge has disbelieved the testimony of the defendants particularly P.W.4, the Panchayath member examined in support of the different loan transaction set up by the defendants. This Court sitting in appeal does not have the advantage of seeing the witnesses or assessing their credibility. Hence, this court will be loathe to interfere with the finding recorded by the trial court after a careful evaluation of the oral A.S. No. 521 of 1995 -:8:- evidence of the parties and their witnesses. 9. It is true that in Ext.X1 complaint filed by the plaintiff on 18-10-1993 before the C.I. of Police, Thodupuzha, the claim was made only against the 2nd defendant. It is relevant to note that the purpose of lodging Ext.X1 complaint was to see that the matter was settled through the intervention of the police. But since the said gesture did not bear fruit the plaintiff was constrained to institute the present suit. Moreover, it is significant to note that Ext.X1 complaint before the police was not founded on Ext.A1 promissory note jointly executed by both the defendants. Hence it is futile for the appellants to contend that Ext.A1 promissory note was not executed by them. 10. Now coming to the plea regarding want of territorial jurisdiction of the trial court, the court below has accepted the plaintiff's case that Ext.A1 was executed at Mudavoor from where the borrowal was made. In this connection, the trial judge has also accepted the testimony of P.Ws 2 and 3 both of whom are hailing from Mudavoor. There is no dispute that Mudavoor is a place A.S. No. 521 of 1995 -:9:- falling within the local limits of the Sub Court, Moovattupuzha. If so, the contention based on lack of jurisdiction of the court below is also without any basis. The result of the foregoing discussion is that this appeal is devoid of any merit and is accordingly dismissed. However, in the circumstances of the case, parties shall bear their respective costs. Dated this the 27th day of May, 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO.521 of 1995 * * * * * * * * * * * * * * * * * * Dated: 27th day of May 2009 JUDGMENT