IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 AS.No. 817 of 1997(E) --------------------- OS.157/1995 of SUB COURT, QUILANDY .................... APPELLANT(S): ------------------------- N.RADHAKRISHNAN, NADUVATH, PANANGAD AMSOM, NIRMALLUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S): ---------------------------- P.K.NARAYANAN NAIR, THIRUVOTH KUNNUMMAL, PANANGAD AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ADV. SRI.P.K.SURESH KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 16/06/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = A.S.No.817 of 1997 = = = = = = = = = = = = = = Dated this the 16th day of June, 2009 JUDGMENT The plaintiff in O.S.No.157 of 1995 on the file of the Subordinate Judge's Court, Koyilandi is the appellant in this appeal. The said suit was one for realization of a sum Rs.30,000/- with interest thereon at a rate of 24% per annum allegedly due under Ext.A1 Promissory Note dated 17.8.1992 said to have been executed by the defendant in favour of the plaintiff. 2. The case of the plaintiff can be summarised as follows:- On 17.08.92, the defendant availed a loan of Rs.30,000/- from the plaintiff in connection with his ration shop business and executed Ext.A1 Promissory Note agreeing to repay the amount with interest of 24% per annum. In spite of repeated request made by the plaintiff, the defendant did not pay the amount. Eventhough Ext.A2 lawyer notice dated 3.8.95 had been issued, the defendant did not pay the amount but instead caused a reply notice raising untenable contentions. Hence the suit. 3. The suit was resisted by the defendant contending inter A.S.No.817 of 1997 2 alia as follows:- The execution of Ext.A1 Promissory Note is denied. The plaintiff is a close relative of Sekhara Marar who is a money lender of the said locality. The said Sekhara Marar is engaged in illegal transactions of money claiming usurious rates of interest. The rate of interest claimed in the suit is indicative of such transaction. Sekhara Marar referred to above is on inimical terms with this defendant since he was claiming excessive interest from this defendant. Ext.A1 Promissory Note is a fabricated one not binding on this defendant. To Ext.A2 lawyer notice, this defendant had caused a reply notice to be sent stating the truth. This defendant had no occasion at all to avail of any loan from the plaintiff. The suit is barred by limitation. Hence the suit may be dismissed with costs. 4. The court below framed four issues for trial. On the side of the plaintiff he examined himself as PW1 and got marked Exts.A1 and A2. On the side of the defendant he examined himself as DW1. The request made from the side of the plaintiff that the plaintiff was desirous of engaging a senior lawyer from Kozhikode, was turned down by the Court below which dismissed the suit relying on the unchallenged testimony of DW1. The A.S.No.817 of 1997 3 judgment and decree dismissing the suit was passed by the court below on 27.02.97. It is the said judgment and decree which is assailed in this appeal. 5. I heard the learned counsel appearing on either side. 6. The court below appears to have been influenced by the fact that one Sekhara Marar who was a process server attached to the court below was placed under suspension on complaints of money lending business carried on by him and the said person had instituted benami suits in the name of his near relatives. The learned Sub Judge assumed that the plaintiff who is a relative of Sekhara Marar could also be treated as a benamidar for the said Sekhara Marar. The inability on the part of the plaintiff to seek expert opinion regarding the signature and handwriting on Ext.A1 Promissory Note also persuaded the court below to hold that Ext.A1 document is a concocted document. The unjustifiable refusal on the part of the Court below to permit the plaintiff to engage a senior advocate for the purpose of cross-examining the defendant examined as DW1 also paved the way for the dismissal of the suit in which the unchallenged testimony of DW1 has greatly influenced the learned Subordinate Judge. No attempt appears to have been made to compare the disputed signatures in A.S.No.817 of 1997 4 Ext.A1 Promissory Note with the admitted signatures of the defendant in his written statement, vakalath, deposition etc which was a course permissible to the court below under Section 73 of the Evidence Act. Under these circumstances, I have no hesitation to conclude that the judgment and decree passed by the court below cannot be sustained. I do not make any observations on the merits of the case, lest it might prejudice one party or the other. The judgment and decree passed by the court below are accordingly set aside and the case is remanded to the court below for disposal afresh after giving the plaintiff an opportunity to cross-examine DW1 and, if necessary, to seek an expert opinion regarding the signature and handwriting on Ext.A1 Promissory Note. It is needless to mention that the court below has also the option to proceed under Section 73 of the Evidence Act by comparing the disputed and admitted signatures. The parties shall appear before the court below on 13.7.09 without any further notice. This appeal is allowed as above. Dated this the 16 th day of June, 2009. V. RAMKUMAR, JUDGE sj