IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 SA.No. 76 of 1996(A) AS.282/1991 OF THE COURT OF THE I ADDL. DISTRICT JUDGE, PALAKKAD OS.NO.145/1991 OF THE MUNSIFF'S COURT, ALATHUR APPELLANT: RESPONDENT: DEFENDANT: VEERANDI ALIAS KUNJUKUTTAN, S/O.CHAMI, CHETHALIMALA, VADAKKETHARA AMSOM, PULLODE, ALATHUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN RESPONDENT: APPELLANT: PLAINTIFF: BALAMEENAKSHI, D/O.KALYANIKUTTY AMMA, KIZHAPATTEVEETIL, VADAKKANTHARA AMSOM, PULLODE, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SMT.SINDHU MANOJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P.NO.302/1996 IN S.A.NO.76/1996 DISMISSED 10.1.2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- S.A. NO. 76 OF 1996 A -------------------------------------------- Dated this the 10th January, 2008 JUDGMENT The defendant in O.S.No.145 of 1991, on the file of the Court of the Munsiff of Alathur, is the appellant in this Second Appeal. The suit was filed by the respondent for realisation of a sum of Rs.11,000/- due from the defendant on the basis of Ext.A1 promissory note. The trial court dismissed the suit. On appeal by the plaintiff, the Lower Appellate Court reversed the judgment and decree of the trial court and decreed the suit as prayed for. 2. The case of the plaintiff is that the defendant borrowed a sum of Rs.11,000/- from her on 25.12.1988 and executed Ext.A1 promissory note. The amount was borrowed for the purpose of the grocery business of the defendant. The case of the plaintiff is that the defendant was working as a cattle boy in the plaintiff's house for quite long time and when he desired to start a business, the amount was given as a loan to the defendant. The defendant denied the execution of Ext.A1 promissory note and also denied the loan transaction. His case is that the plaintiff used to purchase goods from his shop and that a sum of Rs.1,180/- was due from her. When the amount was demanded, the plaintiff did not pay. S.A. NO.76 OF 1996 :: 2 :: There was a quarrel on account of the same. The suit was filed by the plaintiff in such circumstances. 3. Before the trial court, the plaintiff was examined as PW1 and one Ramakrishnan, who is alleged to have witnessed the transaction, was examined as PW2. The defendant was examined as DW1. The trial court dismissed the suit on the ground that Ext.A1 promissory note was not confronted to the defendant when he was cross examined by the plaintiff. It was held therefore, that it is to be taken that there was no cross examination of the defendant regarding execution of the promissory note. The Appellate Court considered the documentary and oral evidence in the case in great detail and held that the defendant has executed Ext.A1 promissory note and a sum of Rs.11,000/- was borrowed by him from the plaintiff. The decision was arrived at by the court below on appreciation of evidence and after analysing the facts and circumstances of the case. 4. The following substantial questions of law are formulated in the Second Appeal: “i) In a suit based on a promissory note, when execution of the promissory note is denied, whether the plaintiff is bound to prove the handwriting and signature found in the document to be that of the defendant before the plaintiff can succeed in the suit. S.A. NO.76 OF 1996 :: 3 :: ii) When the witness examined to prove execution of a document admits that he does not know the contents of that document, whether his evidence can be relied on to prove execution of that document. iii) Whether the uncorroborated testimony of the plaintiff is sufficient to prove execution of a disputed document. iv) Whether the absence of any expert evidence regarding the handwriting and/or signature in a disputed document raises an adverse inference under Section 114(g) of the Evidence Act.” 5. Learned counsel for the appellant submitted that the execution of Ext.A1 is not proved in accordance with law. He submitted that the signature in Ext.A1 is not proved to be that of the defendant. Though PW2 was examined as a witness to the transaction, he has not identified the signature of the defendant in Ext.A1. Learned counsel also submitted that PW2 is an interested witness and he belongs to the same political party in which the plaintiff's husband is a member. It is also submitted that the scribe of Ext.A1 was not examined and the best evidence was not produced before Court. 6. Learned counsel for the respondent, on the other hand, submitted that on a reading of the evidence of PWs.1 and 2, it can be seen that Ext.A1 was executed by the defendant. The specific case of the plaintiff is that the defendant was working in the plaintiff's house as a S.A. NO.76 OF 1996 :: 4 :: cattle boy for about ten years. When PW1 was cross examined, the defendant has not disputed the same by putting necessary questions. When the defendant was examined as DW1, he has not denied the same in the chief examination. In the cross examination, DW1 stated that he had not instructed the counsel to put questions to PW1 in cross examination touching upon this matter. Learned counsel for the respondent also submitted that the substantial questions of law formulated in the Second Appeal do not really arise for consideration, in the facts and circumstances of the case, and the court below was right in passing a decree in favour of the plaintiff. 7. The question involved in the case is whether the defendant had borrowed Rs.11,000/- from the plaintiff after executing Ext.A1 promissory note. According to the plaintiff, the defendant was working as a cattle boy in her house for about ten years. This is not denied by the defendant. When PW1 was examined, no question was put to her touching on this aspect. The defendant has not stated anything in his chief examination denying this case of the plaintiff. That shows that the defendant was working as a servant in the house of the plaintiff. It is not denied that the defendant started business in 1988 or 1989. It is only probable that he would have asked for a loan from the plaintiff. It is also natural that the plaintiff would have lent money to the defendant in the peculiar facts and S.A. NO.76 OF 1996 :: 5 :: circumstances of the case. 8. The plaintiff stated in evidence that the promissory note was written by Narayanan Kutty, a document writer in the locality, and the transaction was witnessed by PW2 Ramakrishnan. Ramakrishnan is admittedly a political activist. It is also proved that the plaintiff's husband is a sympathiser of that political party. It is suggested by the defendant that the defendant joined another political party and because of that enmity PW2 deposed against the defendant. I have gone through the evidence of PWs.1 and 2 and DW1. On going through the evidence and Ext.A1, I concur with the view taken by the court below. It is also relevant to note that a lawyer notice was sent to the defendant before instituting the suit. There was no reply to the said notice. The explanation offered by the defendant for not sending a reply is that no amount was due from him to the plaintiff and, therefore, he did not send any reply. It is difficult to accept this explanation. Failure to send a reply to Ext.A2 lawyer notice is an important circumstance to see whether the case of the defendant is true and genuine and also in considering whether the case of the plaintiff that the amount was advanced to the defendant is true or false. The totality of the facts and circumstances of the case was taken note of by the court below and it came to the conclusion that the promissory note was executed by the defendant and amount was borrowed by him. It is S.A. NO.76 OF 1996 :: 6 :: true that Ext.A1 was not confronted to the defendant while he was cross examined. It was also not confronted to PW2 and he has not stated that the signature of the defendant is seen in Ext.A1. But the evidence of PW2 would indicate that there was a money transaction between the plaintiff and defendant and that he was present on that occasion. The evidence of PW2 would also indicate that the promissory note was written by Narayanan Kutty and that it was signed by the defendant at the residence of PW1 in the presence of PW2. When the oral evidence is considered as a whole, it cannot be said that the view taken by the court below is either perverse or illegal. The substantial questions of law framed in the Second Appeal do not really arise for consideration in the Second Appeal as the execution of the document is proved by the evidence of PWs.1 and 2. 9. For the aforesaid reasons, I do not find any ground to interfere with the well considered judgment passed by the court below. However, taking into account the peculiar facts and circumstances of the case, I am of the view that the interest awarded is excessive. The court below has awarded interest at the rate of 12% from the date of suit till the date of decree and at 6% from the date of decree till realisation. I am inclined to reduce the interest payable from the date of suit to the date of decree from 12% to 7.5%. S.A. NO.76 OF 1996 :: 7 :: In the result, the Second Appeal is partly allowed and the judgment and decree passed by the court below is modified only to the extent of reducing interest from 12% to 7.5% for the period from the date of institution of the suit to the date of decree. In all other respects, the judgment and decree of the court below shall stand confirmed. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A..NO. 76 OF 1996 A JUDGMENT 10th January, 2008 -------------------------------------------