IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 SA.No. 260 of 1997(E) ------------------------------ (AS.NO.27/1994 OF SUB COURT, QUILANDY, OS.NO.159/1991 OF MUNSIFF COURT, QUILANDY) .................... APPELLANT/RESPONDENT/PLAINTIFF: -------------------------------------------------------- RAMAKRISHNAN, KALLATT HOUSE, PUTHOORVATTAM AMSOM, DESOM, QUILANDY TALUK. BY ADV. R.PARTHASARATHY. RESPONDENT/APPELLANT/DEFENDANT: ----------------------------------------------------------- RAJAN ALIAS UNNI, MEETHALA CHERIYALA HOUSE, NIRMALLUR AMSOM, DESOM, QUILANDY TALUK. ADV. SRI.B.V.JOY SANKER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- SA No.260 of 1997-E ------------------------------------- Dated 18th June 2010 Judgment The plaintiff in OS No.159 of 1991 before the Munsiff's Court, Koyilandy, is the appellant herein. 2. According to the plaintiff, the defendant borrowed a sum of Rs.9,000/- from him on execution of Ext.A1 promissory note dated 01.02.1990, promising to repay the same on or before 01.05.1991. Since the amount was not repaid, inspite of repeated demands, the suit was laid. 3. The defendant resisted the suit. He denied the execution of the promissory note and the receipt of the amount from the plaintiff. The defendant admitted that he had borrowed an amount of Rs.6,000/- from the plaintiff on 01.03.1988. But, the said amount was repaid on 14.05.1990. Therefore, he denied liability to pay any amount to the plaintiff and prayed for dismissal of the suit. SA 260/97 2 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant examined DWs 1 and 2. No documents were marked. Ext.X1 was marked as third party exhibit. 5. On an appreciation of the evidence in the case, the Trial Court came to the conclusion that Ext.A1 promissory note, had in fact, been executed and a decree was granted in favour of the plaintiff. 6. The defendant took up the matter in appeal as AS No.27/94 before the Sub Court, Koyilandy. The lower Appellate Court found that Ext.A1 could not be considered as a promissory note since it did not contain the ingredients necessary to constitute a promissory note. Further, the lower Appellate Court was greatly impressed by Ext.X1 document, which was kept in the regular course of official business. The lower Appellate Court also found that at best SA 260/97 3 what could be said is that some amount was due, but for the suspicious circumstances which were brought out in evidence. Accordingly, the appeal was allowed and the suit was dismissed. The said Judgment and decree are assailed in this appeal. 7. The learned counsel for the appellant pointed out that the lower Appellate Court was not justified in holding that Ext.A1 is not a promissory note. According to him, it mentions the amount borrowed on one corner and the date on the other corner and all other ingredients of a promissory note are satisfied. It is also pointed out that the evidence of DW1 would show that the entry made in Ext.X1 is not correct and he has not paid the amount as per that entry. These vital aspects have not been considered by the lower Appellate Court, which has resulted in miscarriage of justice, it is submitted. 8. The learned counsel for the respondent, on the other hand, pointed out that the plaintiff has no consistent case. At one place, he would say that the SA 260/97 4 money was given for getting a job and in another place, he would say that the defendant simply borrowed the money. It is also pointed out that even according to the plaintiff, there were mediators in the transaction, but, none of them was examined by the plaintiff. He asserted that by no stretch of imagination, Ext.A1 can be said to be a promissory note. Accordingly, it is contended that no grounds are made out to interfere with the Judgment and decree of the lower Appellate Court. 9. As rightly pointed out by the learned counsel for the respondent, it is extremely difficult to hold that Ext.A1 constitutes a promissory note. Going by the tenure of the document, as it would appear that debt was incurred as per the document, it is not possible to say that it is a promissory note. On a reading of Ext.A1, it would be extremely doubtful as to what is the nature of the document. 10. True, when the defendant was examined as DW1, he had stated, that the entry in Ext.X1 shows that a SA 260/97 5 sum of Rs.6,000/- was already repaid by him, he admitted that it is not so. However, he sticks on to the stand that he has already repaid the amount. It is significant to notice that he denies the execution of the document and the liability. 11. A perusal of Ext.A1 document would create considerable suspicion in the minds of the court. Apart from the nature of the document, the recitals therein and also the differences in the depositions of the witnesses, signature, date affixed, etc. are all in different inks and it is not drawn up as alleged by the plaintiff. 12. The Trial Court was greatly impressed by the evidence given by the witnesses, which led to the passing of the decree. The plaintiff has a case that the mediators had intervened in the matter. For reasons best known to the plaintiff, he did not choose to examine any of the mediators. The best evidence therefore, was produced especially when the evidence given by the so called witnesses to A1 was found not acceptable. SA 260/97 6 13. The finding of the lower Appellate Court is purely based on appreciation of the evidence on record, which is a finding of fact, with which this court cannot interfere under S.100 CPC. No substantial questions of law arise for consideration in this appeal. The appeal is devoid of merits and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE sta SA 260/97 7