IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 SA.No. 274 of 1996() -------------------- AS.73/1993 of DISTRICT COURT, THRISSUR OS.179/1989 of M.C.,VADAKKANCHERRY .................... APPELLANT(S): -------------- 1. THOMAS, S/O CHOONDAL FRANCIS, CHOONDAL VILLAGE, TALAPPILLY TALUK, THRISSUR. 2. THOMMI, S/O PALATHINKAL THOMAS, VELUR VILLAGE, THALAPPILLY TALUK THRISSUR. BY ADV. SRI.K.PADMANABHAN SRI.P.G.GANAPPAN RESPONDENT(S): --------------- KANIPPAYUR HIRE PURCHASE COMPANY (Pvt) LTD., REP. BY ITS MANAGING DIRECTOR, KANIPPAYUR VILLAGE, TALAPPILLY TALUK, THRISSUR. ADV. SRI.TKM.UNNITHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- S.A.274/1996 -------------------- Dated this the 8th day of January, 2009 JUDGMENT Defendants in a suit for realisation of money are the appellants herein. Plaintiff contended that an amount of Rs.9,500/- was borrowed by the defendants from the plaintiff and an amount of Rs.5,100/- was repaid. But the balance was not paid. The interest payable according to the plaintiff, was 12% per annum. Ext.A1 promissory note was executed in this behalf. When the entire amount due was not paid, Ext.A2 lawyer’s notice was issued. It was not met with any reply, nor was the amount paid. Hence, the suit for an amount of Rs.12,920/- with future interest, after giving credit for the amount already paid by the defendants. 2. Defendants took up the stand that the entire amount due has been paid. They referred to Ext.B1 which was also a promissory note executed by the defendants in favour of the plaintiff Company. They S.A.274/1996 2 contended that Ext.B1 will show that the plaint transaction was closed on payment of an amount of Rs.5,000/-. The trial Court accepted the version of the defendants and dismissed the suit. 3. The lower appellate Court re-appreciated the evidence and found that the plea of discharge raised by the defendants has not been properly prored. The lower appellate Court reversed the judgment and decree of the trial Court and decreed the suit. Hence the Second Appeal. 4. I heard Mr.K.Padmanabhan, learned counsel for the appellants and Mr.T.K.M.Unnithan, learned counsel for the respondent. 5. The case of the defendants is one of discharge. Neither the execution of the promissory note nor the receipt of the amount mentioned therein by way of a loan was disputed. The plea of discharge set up by the defendants with reference to Ext.B1 was disbelieved by S.A.274/1996 3 the lower appellate Court on the basis of Exts.A4 and A5. Ext.A4 is a book containing counterfoils kept by the defendants in the ordinary course of business. It contained a counterfoil bearing No.497, which is the same number borne by Ext.B1. Ext.A5 is the book containing the counterfoil receipts including counterfoil No.649, which is the same number born by Ext.A1. The lower appellate Court appreciated this evidence and came to the conclusion that the promissory notes, Exts.A1 and B1, are related to two different transactions and therefore, closure of account, arising from the transaction evidenced by Ext.B1 will not act in discharge of the liability incurred under Ext.A1. The lower appellate Court took note of the contentions raised by the defendants that there has been a conscious tampering with the date put in Ext.B1 to make it appear that it relates to the same date as the one borne by Ext.A1. 6. I cannot say that the appreciation of evidence of lower appellate Court is perverse nor am I inclined to S.A.274/1996 4 disagree with the findings given in this regard by the lower appellate Court. I also think it is significant that the defendant did not care to issue a reply notice to Ext.A2 lawyer’s notice sent on behalf of the plaintiff. 7. The appreciation of evidence let in by the parties does not give rise to any question of law much less any substantial question of law. Even otherwise I do not find any grounds to interfere with the finding given in this regard by the lower appellate Court. 8. For all these reasons, I find no merit in the Second Appeal. Accordingly, the same is dismissed. Parties shall bear the respective costs. V.GIRI, Judge mrcs