IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRP.No. 587 of 2005() --------------------- AS.381/2001 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.676/1986 of II ADDL.M.C.,THRISSUR .................... REVN. PETITIONER: APPELLANT/DEFENDANT NO.1: -------------------------------------------------------------------------- LONAPPAN, S/O. PANTHALLUKKARAN KUNJUVAREED,KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: RESPONDENT NO.1 & 2/PLAINTIFF/DEFENDANTS 2 & 3: -------------------------------------------------------------------------------------------------------- 1. SARITHA TRADERS (REGD)(MONEY LENDERS), ROOM NO.42, II FLOOR, XXV/158, UNITY BUILDINGS, MANNADIYAR LANE, THRISSUR-1, REPRESENTED BY CHAIRMAN RAPPAI. 2. PAUL, S/O. MANJELI JOSEPH, ANCHERY VILLAGE, DESOM, THRISSUR TALUK. 3. PADMANABHA KAIMAL, S/O. PANIYATH PARUKUTTY EDOLAMMA, AMMADAM DESOM, PARALAM VILLAGE, THRISSUR TALUK. ADDL.4. K.J.RAPPAI (PROP.MAHARANI JEWELLERS) KALLARAKAL HOUSE, CARMEL PARK, NEAR MUNDUPALAM, THRISSUR IS IMPLEADED AS ADDL. 4TH RESPONDENT VIDE ORDER DATED 14.3.2011 IN I.A. 221 OF 2010 IN CRP. 587/05 ADV. SRI.JIJO PAUL FOR ADDL R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2011, ALONG WITH CRP NO. 654 OF 2005. THE COURT ON 14/12/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. Nos.587 & 654 of 2005 ----------------------------------------------- Dated 14th December, 2011. O R D E R C.R.P.587/05 is filed by the first defendant in O.S.676/86 on the file of the II Additional Munsiff Court, Thrissur. C.R.P.654/05 is filed by the first defendant in O.S.678/86 on the file of that court. 2. O.S.676/86 is a suit for money. The plaint averments in that suit is briefly as follows : Defendants 1 to 3 borrowed Rs.50,000/- from the plaintiff firm on 29.10.1983, agreeing to repay the amount with 12% interest as and when demanded. The defendant executed a promissory note in favour of the plaintiff on the same day itself. Rs.40,350/- was paid by the defendant towards the transaction. The balance amount with interest is due from the defendants. When the plaintiff demanded for the amount, the first defendant gave a cheque on 3.1.1985 for Rs.3,000/-. But the cheque was dishonoured. In addition to the above mentioned transaction, defendants 1 and 3 along with one Jose, s/o.Thomas borrowed Rs.10,000/- from the plaintiff firm on 24.1.1984. They also executed a demand promissory note in favour of the plaintiff. C.R.P.587 & 654/05 2 No amount was paid by the defendant towards the said transaction. In spite of repeated demands, the defendant did not repay the amount. The defendants 2 and 3 were set ex parte. The first defendant filed written statement raising the following contentions : The suit is not maintainable. The first defendant had executed a demand promissory note for Rs.50,000/-. He has paid Rs.61,400/- towards the said account. The first defendant did not receive any amount on 24.1.1984 as alleged in the plaint. He was not a signatory to the promissory note mentioned in the plaint. The said pro-note was executed by the defendants 2 and 3 only to ensure the payment of interest on account of the earlier transaction. 3. O.S.678/86 is a suit for money. The plaint averments in the suit is briefly as follows : The defendants 1 to 3 borrowed Rs.10,000/- from the plaintiff firm agreeing to repay the amount as and when demanded. The amount was borrowed on 24.1.1984 and a demand promissory note was executed by them in favour of the plaintiff. Defendants 1 and 3 together with one Paul borrowed Rs.50,000/- and executed a C.R.P.587 & 654/05 3 demand promissory note. In spite of repeated demands, the defendant did not care to clear the liability. The plaintiff is a registered firm and the person who signed the plaint has got the authority to institute the suit. Hence the suit was filed. The defendants 2 and 3 remained ex parte. The first defendant filed written statement raising the following contentions : It is admitted that the first defendant received Rs.50,000/- and he repaid Rs.61,400/- on account of the said transaction. He did not executed any promissory note on 24.1.1984 as alleged in the plaint. He did not receive any amount on that day. 4. Both the above suits were jointly tried and both the suits were decreed on 8.3.1991. The first defendant in both the suits filed A.S.90/99 and 91/99 before the II Additional Sub Court, Thrissur and both the appeals were allowed and both the suits were remanded to the Munsiff Court, Thrissur. 5. In the Munsiff Court, PW1 was examined and Exts.A1 to A14 and Exts.B1 to B3 were marked. The learned Munsiff, on considering the evidence decreed the suit as follows: C.R.P.587 & 654/05 4 “In the result, O.S.676/86 is decreed with costs. I hereby allowed the plaintiff to realise an amount of Rs.14,854.25 with 12% interest on Rs.11,650/- being the principal amount from the date of suit till the date of decree and with 6% interest thereafter on the plaint amount till realization. O.S.678/86 is decreed with costs. I hereby allowed the plaintiff to realise an amount of Rs.12,570/- with 12% interest on Rs.10,000/- from the date of suit till the date of decree and 6% interest on the plaint amount from the date of decree till realization from the defendants and their assets.” Against that judgment and decree, the first defendant in both the suits filed A.S.379/01 and 381/01 before the III Additional District Court (Fast Track Court No.1), Thrissur, which were dismissed by that court. Against the judgment in A.S.381/2001, the appellant filed C.R.P.587/05 and against the judgment in A.S.379/01, the appellant filed C.R.P.654/05. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the contesting respondents. 7. At the time of hearing, learned counsel for the C.R.P.587 & 654/05 5 revision petitioner raised the following contentions : The lower appellate court has failed to see that the plaintiff is unable to explain the circumstances in which Ext.B2 series and Ext.B3 pass book were issued. The lower appellate court ought to have noted that the contention that Ext.B2 series and Ext.B3 pass book are materially altered is not established. The lower appellate court erred in thinking that the non-examination of the defendant is fatal to the defence case. The lower appellate court ought to have relied on Ext.B2 series and Ext.B3 pass book and not on the account books of the plaintiff. The lower appellate court ought to have drawn an adverse inference against the plaintiff for non-production of the counterfoils of Ext.B2 series receipts. The learned counsel for the contesting respondents supported the judgments of the court below. 8. The High Court, in exercise of revisional jurisdiction under Section 115 of the Civil Procedure Code, shall not ordinarily interfere with the concurrent findings of fact recorded by the courts below, unless it appears to it that the courts below patently committed an illegality and took a wrong C.R.P.587 & 654/05 6 view of law, as a result of which they arrived at erroneous findings of fact by the illegal exercise of jurisdiction. 9. The above mentioned two suits were filed by the same plaintiff. The case of the plaintiff in O.S.676/86 is that the defendants 1 and 3 along with one Jose Thomas borrowed Rs.10,000/- on 24.1.1984, by executing Ext.A3 promissory note and defendants 1 to 3 borrowed Rs.50,000/- from the plaintiff, on executing Ext.A1 promissory note dated 29.10.1983. There is no dispute with regard to the execution of Ext.A1 promissory note for Rs.50,000/-. But the first defendant disputes the execution of Ext.A3 promissory note for Rs.10,000/-. PW1, who is the accountant of the plaintiff was examined to prove Exts.A1 and A3 promissory notes. Ext.A12 is the minutes book of the plaintiff for the period from 1.3.1982 to 29.1.1985 which contains the entries with regard to the loans availed by the defendants. The main contention raised by the first defendant is the plea of discharge. The first defendant has not gone to the witness box to prove the discharge based on receipts. For proving discharge, the first defendant produced Ext.B2 series C.R.P.587 & 654/05 7 receipts and Ext.B3 pass book. PW1 disputes the correctness of these documents. With regard to the correctness of Ext.B2 series receipts and Ext.B3 pass book, the lower appellate court dealt with the same as follows : “According to PW1, he had issued Ext.B2(a) and (c) receipts. But even according to the evidence of PW1, there are corrections in these receipts. PW1 has given evidence to the effect that the receipts for Rs.100/- seen corrected into Rs.1000/-. Similarly he would contend that the receipt for Rs.50/- is seen corrected as Rs.750/-. It is true that PW1 has got case that the collection agent namely Lalan was collecting amounts from the customers including the appellant. He has deposed that Ext.B2 series are the types of receipts issued by Lalan. But PW1 has not admitted all these receipts produced by the appellant. He has deposed that on 7.2.1985 a sum of Rs.200/- is seen credited in Ext.A8 and whereas in the receipt it is shown as Rs.2000/-. Similarly on 1.7.1985 there is an entry in Ext.A8 for Rs.250/- whereas in the receipt it is seen shown as Rs.2,150/-. So PW1 has disputed the correctness of the amount in Ext.B2 series. Similarly in Ext.B3 pass book there are entries regarding the payments. According to PW1, the first two entries are made by himself. But he has not admitted the other entries. Exts.A6 to 8 are the day books for the period C.R.P.587 & 654/05 8 1983-85. Exts.A9 to 11 are also day books for the same period. So it has been argued by the learned counsel for the appellant that the account books produced by the first respondent are not true and genuine. In fact, Exts.A6 to A11 were produced by the first respondent only to disprove the contention of the appellant regarding the plea of discharge. These documents were not produced to prove the liability of the appellant. As stated earlier there is sufficient evidence to prove the liability of the appellant and others. The respondents 2 and 3 did not contest both the suits. Even the appellant has not denied the execution of Ext.A1 promissory note. So the dispute was confined to Ext.A1. Ext.A1 has been proved by PW1. x x x x x x x x x x x x In view of the dispute raised by PW1 regarding the correctness of the entires in Ext.B2 series and B3 it was necessary for the appellant to enter the box and prove the payments alleged to have been made by him as borne out by these documents. There is no reason why the appellant has not given evidence to prove the payments as borne out by Exts.B2 series and B3. So I find no reason to disagree with the finding of the court below that the appellant has failed to prove the plea of discharge. Even after raising the counter claim the appellant never thought it fit to prove the plea of C.R.P.587 & 654/05 9 discharge. The mere production of Ext.B2 series and Ext.B3 is insufficient to prove the plea of discharge especially when the correctness of the same is questioned by PW1.” Since the trial court decreed both the suits on properly appreciating the evidence available on record and the lower appellate court confirmed both the judgments and decree of the trial court on appreciating the evidence on record properly, I find no reason to interfere with the judgments and decree of the courts below and therefore, both the above Civil Revision Petitions are liable to be dismissed as they are without any merits. Accordingly, C.R.P.587 and 654 of 2005 are dismissed. There is no order as to costs. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.