IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RSA.No. 1170 of 2008() ---------------------- A.S. NO.1/2006 OF SUB COURT, PALA, DATED 02.11.2007 OS.47/2004 OF MUNSIFF COURT, PALA, DATED 31.08.2005 .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- SAJAN T.AUGUSTINE, AGED 37, S/O.AUGUSTINE, THOMACHERIL HOUSE, ALANDU KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADVS. SRI.BABY THOMAS SRI.LATHEESH SEBASTIAN RESPONDENT/RESPONDENT/PLAINTIFF -------------------------------------------------------- PALA T.J.FINANCE, REPRESENTED BY ITS PROPRIETOR, THOMAS, AGED 60, S/O.THOMAS, THULUVANICKAL HOUSE, PAYAPPAR KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ THOMAS P. JOSEPH, J - - - - - - - - - - - - - - - - - - - - - - - R.S.A.No. 1170 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2009 J U D G M E N T The substantial questions of law urged in the Memorandum of Second Appeal are: 1. Whether mere statement that “I find no reason to interfere with the finding of the learned Munsiff in this regard” is sufficient for a lower appellate court to dismiss an appeal without perusing the evidence and pleading? 2. Can a court of law discard the evidence of the defence witness as merely interested witness without perusing the same properly? 2. The Second Appeal arises from judgment and decree of learned Sub Judge, Pala in A.S. No.1 of 2006 confirming a decree for realisation of money passed by the court of learned Munsiff, Pala in O.S. No.47 of 2004. Respondent claimed that appellant borrowed Rs.40,000/- from his financing institution on 23.11.2002 and executed Exhibit A1, demand promissory note on the same day agreeing to pay the said amount on demand with interest at the rate of 18% per annum. Respondent demanded payment of the amount as per R.S.A.No. 1170 of 2008 -2- Exhibit A2, notice dated 22.11.2003. Service of notice on appellant is proved by Exhibits A3 and A4. Appellant did not respond. Respondent instituted suit for recovery of the amount with interest. According to the appellant, he had not borrowed any amount from the respondent on 23.11.2002 or executed any demand promissory note. Instead, he had borrowed Rs.25,000/- from respondent in October, 1997 and was regularly paying the interest payable thereon at the rate of 1,250/- per month till June, 1998. But on account of financial difficulties he could not pay the interest due from June, 1998 to October, 1998. While so, respondent sent Exhibit B1, letter dated 28.10.1998 to him and as desired in that letter he met the respondent. On 31.12.1998 appellant paid Rs.33,750/- including principal amount and interest and Rs.50 by way of notice charges. Thus the liability was cleared. At the time he borrowed Rs.25,000/- in October,1997 respondent had obtained his signature on a stamped, printed, blank promissory note. Respondent gave evidence as PW1. PW2 is the scribe who claimed to have filled up Exhibit A1. He stated that appellant signed Exhibit P2 in his presence. PW 3 is also a witness to the transaction who supported the respondent. Appellant gave contra evidence as DW1 and stated to his case. 3. Learned Munsiff found that there is no evidence of R.S.A.No. 1170 of 2008 -3- appellant borrowing Rs.25,000/- in October, 1997 and gave signed, stamped, blank printed form of demand promissory note. It was found that plea of discharge raised by the appellant is not proved. The two circumstances which the appellant pointed out to find against the case of respondent are that in Exhibit A1, the demand promissory note telephone number of respondent is given in four digits which was not the situation in the year, 2003 and, Exhibit B1 itself. Respondent as PW1 has explained that Ext. B1 related to the sum of Rs.1,000/- he had given to the appellant on the recommendation of PW3. That explanation was accepted by the courts below. So far as the four digit telephone number in Ext.A1 is concerned, courts below observed that since the respondent is a financier running a financing institution he could have prepared printed demand promissory notes earlier and that was in use when appellant borrowed the amount. Appellant was not able to prove the plea of discharge. He does not dispute that Ext.A1, demand promissory note contained his signature. He has also not replied to Ext.A2, notice demanding payment based on Exhibit A1. No satisfactory explanation is given for not replying to Ext.A2. Courts below considered these circumstances and found in favour of respondent. On going through the judgments under challenge and hearing learned counsel I am not satisfied that any question of law, R.S.A.No. 1170 of 2008 -4- and much less substantial question of law is involved. Findings entered by the courts below rest on proper appreciation of the evidence which does not give rise to any substantial question of law. Resultantly, the Second Appeal is dismissed. THOMAS P. JOSEPH, JUDGE shg/