IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 AS.No. 335 of 1997(8) --------------------- OS.38/1995 of SUB COURT, PALA .................... APPELLANT/DEFENDANT: ---------------- ALICE, W/O.KURIAN, KALLAKKATTU (VELLUKUNNEL) HOUSE,\ THIDANADU P.O., KONDOOR VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT/PLINTIFF: ------------------ JOHN @ JOY, AGED 45, S/O.VARKEY, MOOZHIYANKAL HOUSE, LTHIDANADUKARA, KONDOOR VILLAGE (ARUVITHARA P.O.), MEENACHIL. ADV. SRI.C.J.JOY THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14/10/2009, ALONG WITH AS NO. 456 OF 1998, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.22930/97 IN A.S.NO.335/97 --------------------- DISMISSED 14/10/2009 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. TO JUDGE HARUN-UL-RASHID,J. ----------------------------- A.S.NOS.335 OF 1997 & 456 OF 1998 ----------------------------- DATED THIS THE 14TH DAY OF OCTOBER, 2009 JUDGMENT These appeals arise out of the judgment and decree in O.S.Nos.38/95 and 505/94 respectively on the file of the Sub Court, Pala. The parties in both the suits are same. The suits were filed for realisation of money based on Ext.A1 promissory note. The trial court decreed the suit with costs in O.S.No.38/95. The plaintiff was given a decree to realise a sum of Rs.56,755/- with future interest at the rate of 12% per annum on the principal sum of Rs.42,925/- from the date of suit till realisation. A decree for permanent prohibitory injunction was also passed restraining the defendant from felling and removing the standing timber trees in the plaint schedule property till the amount with interest is paid to the plaintiff. O.S.No.505/97 was decreed allowing the plaintiff to realise a sum of Rs.66,466/- with interest at the rate of -2- A.S.Nos.335/97 & 456/98 6% per annum from the date of suit till its realisation of the amount with costs. Aggrieved by the respective decrees and judgments passed in the said suits, the defendant has come up in appeal. The parties hereinafter referred to as plaintiff and defendant as in the suits. 2. O.S.No.38/95 was filed stating that on 30/3/1991 the defendant executed a promissory note for the value received in favour of the plaintiff agreeing to pay on demand a sum of Rs.42,925/- with interest at 12% per annum. According to the plaintiff, in spite of repeated demands, the defendant failed to repay the amount. Hence the suit. Connected suit O.S.No.505/94 was also filed more or less on the same set of facts. The date of execution of the promissory note in that suit is 1/3/1991. 3. Defendant denied the execution of promissory note on the dates alleged by the plaintiff in the respcctive suits and further contended that she did not receive any money from the plaintiff and therefore she is not liable to pay the amount claimed. It is also contended that promissory note is a fabricated -3- A.S.Nos.335/97 & 456/98 document fraudulently created by the plaintiff with the intention of causing harm and injury to the defendant and it is devoid of any consideration. 4. The evidence consists of oral testimonies of the plaintiff and one attesting witness, who were examined as PWs.1 and 2 and Exts.A1 to A4 were marked on the side of the plaintiff. The Defendant was examined as DW1 and attesting witnesses were examined as DWs.2 and 3 and Exts.B1 to B1(a) and B2 were marked on the side of the defendant. In O.S.No.505/94 the plaintiff and defendant examined the very same witness and Exts.A1 and A2 were marked. The trial court framed the very same issues in the light of the contention. 5. According to the plaintiff, Ext.A1 in both the suits is the promissory note executed by the defendant in favour of the plaintiff and that the defendant received considerations stated in the respective promissory notes. Plaintiff tendered evidence as PW-1 testifying that the allegation of the defendant that the promissory note is a fabricated one was put forward to evade -4- A.S.Nos.335/97 & 456/98 payment, since the husband of the defendant, who is the lst witness to the promissory note, is no more. He also testified before the court that Ext.A1 in the respective cases is the pro note executed by the defendant on the respective dates pleaded in the plaint. PW-2 is an attesting witness to Ext.A1. He is the brother of the plaintiff. The other two witnesses to Ext.A1 are Varkey Kurian and one Mathew. Varkey Kurian is the husband of the defendant and Mathew is a person who has got long association with the defendant and her family. It is the plaintiff's case that the amount was paid to the defendant at the instance of his brother, who was examined as PW-2. The plaintiff testified that his brother PW-2 and the husband of the defendant are in good terms and it was at his instance the amount happened to be paid to the defendant. The husband of the defendant had a very active role in the transaction and in fact the amount was received by the husband of the defendant and the defendant executed Ext.A1 pro note. The attesting witness PW-2 testified that Ext.A1 was signed by him at the Office of the Advocate at -5- A.S.Nos.335/97 & 456/98 Erattupetta, that at the time when he signed Ext.A1 pro note PW1, DW2 and the husband of the defendant were also present. At the same time, DW2, who is also an attesting witness, testified before the court below that he has not seen DW1 executing Ext.A1 or receiving any amount on the respective dates. Since the execution of Ext.A1 was denied, the court below analysed the oral evidence tendered by the parties and also compared the admitted signature of DW1 in his deposition, vakalath, written statement and the objection to the attachment application with that of the signature in Ext.A1. The court below opined that the signatures of the defendant in Ext.A1 and in the compared documents are one and the same. 6. Apart from contending that promissory notes are fabricated documents and that the defendant has not received any amount, no reasons or circumstances were stated in the written statement for the fabrication of two promissory notes by the plaintiff in the name of the defendant. I have gone through the written statement filed by the defendant. -6- A.S.Nos.335/97 & 456/98 Except stating that the promissory notes are fabricated documents, there is no pleading in the written statement explaining any circumstances on the part of the plaintiff for fabricating two promissory notes. The specific reason stated by the plaintiff is that he insisted for execution of promissory notes by the defendant because her husband had so many debts. When DW-1 was examined, she was not in a position to testify that her husband has no debts to clear and she has given evasive answers to the questions put to her. When examined as DW-1, she testified that she has no idea about the extent of the property owned by her husband nor she is aware of the extent of the property, which her husband had sold and as to whether her husband had any financial transactions with PW1. She was not in a position to deny the transaction between the plaintiff and her husband. The very case set up by the plaintiff is that the amount was borrowed for meeting the needs of her husband. 7. The learned counsel for the appellant contended that PW-2 is the brother of the plaintiff and therefore his evidence -7- A.S.Nos.335/97 & 456/98 cannot be acted upon being interested testimony. I have already stated that the evidence in this case would go to show that PW-2 and the husband of the defendant are closely known to each other, that the husband of the defendant approached the plaintiff and in fact he was introduced by his own brother and the transaction was entered into between the plaintiff and the husband of the defendant in the presence of plaintiff's brother. He is the only witness to Ext.A1 available for examination. The other witness is the husband of the defendant who died on 4/9/1991. The 3rd witness Mathew is a person, who is doing his business in the property belonging to the defendant's family and he told the plaintiff that he is unable to testify before the court as his witness. Therefore, the only person, who can speak about the transaction is the brother of the plaintiff, who was examined as PW-2. I do not think that there is anything wrong in placing reliance on the testimony of PW-2. PW-2 has given evidence that he knew the husband of DW1 for about 25 years, that the husband of DW1 approached him for money for the purpose of -8- A.S.Nos.335/97 & 456/98 avoiding an attachment, that the husband of DW1 told him that it would be repaid within one month and that PW1 agreed to pay the amount, if a promissory note is executed by DW1. In this connection it is relevant to note that the plaintiff as PW1 also testified that the husband of DW1 agreed to give a promissory note executed by DW1, that the promissory note was obtained from DW1, since her husband had other debts and that at the time when Ext.A1 was executed, the husband of DW1, PW1 and PW2 were present. PW2, the brother of the plaintiff, testified that he happened to be an attestor to Ext.A1, because it was at his instance money was paid by PW1. The trial court believed the evidence of PWs.1 and 2. The trial court observed that since PW2 is an attestor to Ext.A1 and he has explained the circumstances under which he happened to be an attestor to Ext.A1, the evidence of PW2 cannot be discarded solely for the reason that he is the brother of PW1. 8. The trial court also examined the credibility of DW2, who is the 3rd attestor to Ext.A1. He testified before the court -9- A.S.Nos.335/97 & 456/98 below that he signed Ext.A1 as told by PW1 and that he knew the payment in relation to a transaction of 1986-87 and that at that time PW1 and the husband of DW1 were also present. The trial court noted that DW1 has no case that there was payment of any money in 1986-87 to her by PW1 and that no document was executed during that period attested by DW-2. The trial court disbelieved DW2 and held that there is every reason to come to a safe conclusion that DW2 is swearing falsehood before the court in order to support DW1. 9. From the evidence tendered by the parties, I find that Ext.A1 promissory notes were executed by DW1 in favour of PW1 on the respective dates, after receiving the consideration. Therefore, the plaintiff is entitled to realise the amount claimed in the plaint with interest at the rate of 12% per annum from the date of suit till its realistion from the defendant and from her assets. 10. The trial court also examined the evidence on record in detail and concluded that Ext.A1 promissory notes were -10- A.S.Nos.335/97 & 456/98 executed by the defendant after receiving consideration. The trial court examined, analysed and discussed the evidence and other attendant circumstances in detail and reached the conclusion that the plaintiff is entitled to the relief as sought for in both the suits. I do not find any reason to interfere with the judgment and decree passed by the trial court. In the result, the appeals fail and accordingly they are dismissed with costs. HARUN-UL-RASHID, Judge. kcv. -11- A.S.Nos.335/97 & 456/98 HARUN-UL-RASHID,J. -------------------------- A.S.NOS.335 of 1997 & A.S.NO.456 OF 1998 D -------------------------- JUDGMENT 14th October, 2009