IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 AS.No. 338 of 1997(C) ------------------------------ OS.1111/1993 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): ( PLAINTIFF) ----------------------------------------- M/S ULLATTIL AGENCIES, PARTNERSHIP CONCERN, REPRESENTED BY ITS MANAGING PARTNER ISSAC THOMAS, S/O ISSAC, RESIDING AT ULLATTIL, NEAR UNION CLUB ROAD, KOTTAYAM. BY ADV. SRI.R.RAMADAS RESPONDENT(S): ------------------------ C.O.ABDUL SAHIB, S/O KOCHU MOHAMMED, PROPRIETOR, M/S HOTEL JANAKIRAM, RESIDING AT KANNAMKUNNEL HOUSE, KODIMATHA KARA, KOTTAYAM VILLAGE. BY ADV. SRI.P.K.RAMKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.338/1997 ORDER ON I.A. NO. 2147/2005 IN A.S.NO.338/1997 DISMISSED SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE 29/10/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO.JUDGE sts THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.338 of 1997-E ------------------------------------------------------------------------ Dated 29th October 2010 Judgment Thottathil.B.Radhakrishnan, J. The plaintiff in a suit for recovery of money, is the appellant. It is a money lender. According to it, an amount of Rs.50,000/- was borrowed by the defendant from it under Ext.A1 demand promissory note dated 30.03.1984 and further, an amount of Rs.40,000/- was borrowed by the defendant under Ext.A9 demand promissory note on 14.05.1984. The agreed rate of interest was 24% per annum with quarterly rests. According to the plaintiff, the defendant also created a collateral security by mortgaging the plaint schedule properties by deposit of title deeds. The plaintiff pleaded that the amounts were disbursed to the defendant and the amounts were borrowed for the business purposes of the defendant and he made certain repayments, the last among which was on 19.01.1987, however that he failed to repay the remaining AS 338/97 2 outstanding. On these pleadings, the suit was laid. 2. The defendant denied the alleged borrowals and pleaded that he was a subscriber to a chitty conducted by the plaintiff in the name Ullattil Chitty Funds and the chitty amount was Rs.1 lakh, which was prized to the defendant and while paying the amounts due thereunder, the plaintiff had taken a few signed blank printed forms of promissory notes and a few signed blank papers from the defendant. The title deeds of the defendant were also obtained by the plaintiff on the premise that they were for the purpose of verifying whether the defendant had any property. He was assured that the title deeds would be returned, it is pleaded. According to him, the chitty transaction came to an end in 1987 and in August 1988, he had borrowed an amount of Rs.20,000/- from the plaintiff, when also certain signed blank printed forms of promissory notes and signed blank papers were taken from the defendant. According to the defendant, he had discharged the debts due to the plaintiff and when he demanded that AS 338/97 3 the signed blank forms of promissory notes and papers be returned, he was given only one among them on the premise that others were missing or were destroyed and the one returned to him is Ext.B2. According to the defendant, ultimately on 05.10.1987 he went over to the office of the plaintiff demanding the documents and a quarrel took place between him and the managing partner of the plaintiff's firm on that day. The defendant was attempted to be manhandled by the managing partner of the plaintiff's firm. According to the defendant, when he fled under fear of danger to his life, the managing partner of the plaintiff's firm snatched from the defendant the receipt issued to him in connection with the chitty. He says that thereupon he immediately lodged a caveat against Ullattil Chitty Funds, however that the said establishment of the plaintiff did not initiate any litigation. He pleaded that the plaint claim is barred by limitation and that the rate of interest claimed is excessive. AS 338/97 4 3. The managing partner of the plaintiff's firm gave evidence as PW1. PWs 2 and 3 are clerks/accountants in the plaintiff's firm. The contra oral evidence was only the testimony of the defendant as DW1. The documentary evidence consists of Exts.A1 to A16(a), B1 and B2. 4. The court below on came to the conclusion that the defendant having only admitted his signatures in the disputed documents, it could not be treated that he has admitted execution of the promissory notes and therefore, the plaintiff could succeed only by proving the passing of consideration as pleaded by the plaintiff. On an evaluation of the evidence, the court below dismissed the suit. 5. In this appeal, the learned senior counsel for the appellant/plaintiff argued that the appreciation of evidence by the court below is wholly against the settled principles of law and that the weight of the legal evidence on record has been totally brushed aside. It was argued that on the face of the fact that the signatures on the AS 338/97 5 documents are admitted and on the basis of the corroborative testimony of PWs 1 to 3, there was really no room to disbelieve the plaintiff's version and the court below went wrong in holding that there were certain over- writings in the ledger. It was accordingly contended that the weight of evidence should necessarily have resulted in a decree as sought for. 6. Per contra, the learned counsel for the respondent/defendant argued that the totality of the facts and circumstances point only to the conclusions arrived at by the court below and the defendant having not been sued for any amount due under the chitty transaction, it has to be held that even the chitty transaction was satisfied by the defendant, discharging the amounts due thereunder. It was accordingly argued that the materials on record are insufficient to have the decree reversed in first appeal. 7. Looking at the evidence, we find that the title deeds of the defendant along with the encumbrance certificates stood deposited with the plaintiff. The demand AS 338/97 6 promissory notes Exts.A1 and A9 are printed forms on which necessary revenue stamps are affixed and signatures of the defendant were put on the stamped promissory notes. Though the defendant says that he is illiterate and cannot read and knows only to put his signature, for reasons more than one, we are not prepared to accept the version that those documents were unfilled printed forms. The defendant is a hotelier. He says that he is in business for more than 20 years. The allegations levelled against the plaintiff by the defendant and the quality of the denial of the plaint claim are such that the onus is heavy on the defendant to establish his case. With this in view, we have to first recall that Ext.A13 suit notice was issued on 14.10.1993. The defendant does not deny having received it. However, he did not reply to it. This is inspite of the fact that even according to him, he had lodged a caveat before the court as against Ullattil Chitties, which is stated to be the sister concern of Ullattil Agencies, the plaintiff. His version is that upon receipt of the suit AS 338/97 7 notice, he went to the plaintiff's office and PW1's son had told him that issuance of notice was a usual matter and nothing will be done thereafter. This version does not carry itself with the common course of human conduct in the situation and setting of the facts of the case. The suit is filed only in 1993. The defendant says that there was a quarrel between him and PW1 on 05.10.1987 when the defendant went to the plaintiff's office demanding return of the documents. When a person's title deeds are in deposit with another and when the person with whom those documents lie in deposit is approached for return of documents, if the said situation leads to a quarrel where the managing partner of the plaintiff had allegedly snatched away even the receipt issued to the defendant, we would necessarily have to be surprised as to why the defendant did not choose to make any police complaint or take any action whatsoever from 1987 till the filing of the suit in 1993 for return of the documents. The totality of the facts and circumstances of the case, in the context of the AS 338/97 8 testimony of PWs 1 to 3 and DW1, improbabilises the version of DW1 that the documents were in deposit on account of the chitty transaction and are not relatable to the lendings on the basis of Exts.A1 and A9. We are of the view that the defendant has not given any satisfactory explanation for the mortgage created by him by deposit of title deeds. On a preponderance of probabilities, we find that the plaintiff's case cannot but succeed. Having regard to the totality of the evidence on record, even if we eschew the ledger in which there are certain over-writings, the conclusion to be arrived at would not be different from what we have now reached. Therefore, the plaint claim is entitled to succeed. 8. Now the question that arises is as to what shall be the rate of interest. Is the plaintiff entitled to 24% interest with quarterly rests as contended ? According to the plaintiff, the lending was for the purpose of the business of the defendant. The plea is that it is a commercial transaction. The demand promissory notes, on AS 338/97 9 their face, show that the rate of interest is 24% with quarterly rests, but there is no collateral agreement whereby the parties have shown to have agreed regarding the rate of interest fixed @ 24% with quarterly rests. The plaint claim is Rs.5,39,823/20 and it is determined by the plaintiff as the balance in the account relating to the transaction and the rate of interest applied on lending is @ 24% with quarterly rests. Therefore, we are of the view that 6% future interest from the date of suit will suffice the ends of justice. In the result, the impugned decree and judgment are set aside and the suit is decreed, allowing the plaintiff to recover an amount of Rs.5,39,823.20 with future interest thereon at 6% per annum from the date of suit (26.11.1983) till realisation charged on the plaint schedule AS 338/97 10 properties. However, there will be no order as to costs either before this court or in the court below. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS 338/97 11