IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 SA.No. 454 of 1998(D) ------------------ OS.1363/1988 OF MUNSIFF COURT, THRISSUR AS.189/1993 of DISTRICT COURT, THRISSUR ................. PLAINTIFF / RESPONDENT NO. 1 / APPELLANT : -------------------------------------------------------------------- ROYAL HIRE PURCHASE (P) LTD., VIJAYA TRUST BUILDINGS, NEW CHURCH ROAD, TRICHUR VILLAGE, REPRESENTED BY CHAIRMAN T.O. MATHEW. BY ADVS. SRI. N. SUBRAMANIAM SRI. M.S. NARAYANAN DEFENDANTS 1 & 3 / APPELLANTS 1 & 2 / RESPONDENTS 1 & 2 / DEFENDANT NO. 2 / ------------------------------------------------------------------------------------------------------------------------ RESPONDENT NO. 2 : --------------- --------------- 1. P.A. JOSE, S/O. PULIKKOTTIL PULLUKKARAN ANTONY, ST. JOSEPH STREET, KURIACHIRA, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT. 2. A.V. MATHEW, S/O. VAREETH, AMBAKKEDAN HOUSE, CHEYYARAM VILLAGE, TRICHUR TALUK AND DISTRICT. 3. P.A. VARGHESE, S/O. ANTONY, PULIKKOTTIL PULLUKKARAN ANTHONY, ST. JOSEPH STREET, KURIACHIRA, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT. R1 TO R3 BY ADV. SRI. K. PADMANABHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 454 of 1998(D) -2- ORDER ON C.M.P. NO. 1268/1998 IN SA. NO. 454/1998 DISMISSED 07/02/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P.BHAVADASAN, J. ------------------------------------- SA No.454 of 1998-D ------------------------------------- Dated this the 7th day of January 2011 Judgment A suit filed on the basis of Ext.A1 promissory note was decreed by the trial court. In appeal by defendants 1 and 3, the lower appellate court allowed the appeal and dismissed the suit. Therefore, the plaintiff has come up in second appeal. 2. According to the plaintiff, on execution of Ext.A1, the defendants received a sum of Rs.6,720/-, but they failed to repay the same. The notice issued to them had no response. Therefore, the suit was laid. 3. The second defendant chose to remain ex parte and defendants 1 and 3 contested the suit. They denied the execution of Ext.A1 promissory note. They also contended that blank papers were obtained by the plaintiff from them in connection with a previous transaction and the documents referred to in the plaint are concocted, SA No.454/98 2 using those blank papers. On the above grounds, they prayed for dismissal of the suit. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B5 marked. 5. On an evaluation of the materials before it, the trial court decreed the suit as prayed for. In appeal, the lower appellate court was of the view that the plaintiff should have produced documents to show that Exts.B1 and B2 related to some other transactions and also that he should have produced his accounts in this case. It was also observed that there were no witnesses to Ext.A1 promissory note. On these grounds, the appeal was allowed and the suit was dismissed. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : SA No.454/98 3 1.When a court draws a presumption under S.114(g) of Evidence Act, will it automatically negative the drawing of presumption under Section 118(a) of the Negotiable Instruments Act ? 2.Whether the court below has erred in not finding out from the facts and circumstances of the case, whether the presumption to be drawn under S.118(a) of Negotiable Instruments Act is rebutted or not ? 3.Whether the judgment and decree passed by the lower appellate court ignoring the admissions in the written statement and evidence sustainable ? 4.Whether the court below is justified in drawing adverse inference against the plaintiff for non-production of documents ordered to be produced and whether such an adverse inference to be drawn is obligatory and is it not optional, depending on facts and circumstances of the case ? 5.Whether there is any compulsive element in Section 114 (g) of Evidence Act to draw an adverse inference against SA No.454/98 4 a party whenever or wherever he fails to produce documents ? 6.Whether the non-marking of any document produced in the case (in the case in hand stamp duty and penalty has been also paid in document produced) will belittle the evidentiary value of such document, more so when these documents produced along with plaint forms part of pleading and when penalty has been levied when the said document is sought to b e marked in evidence ? 7.Whether the office copy of the lawyer notice is not secondary evidence to be relied on under Section 66 of the Evidence Act, more so the receipt of which is not denied by defendants ? 7. In fact, the sole question is if the plea of discharge is proved. Being a plea of discharge, the entire burden was on the defendants to show that they had paid the amount due to the plaintiff. DW1 has admitted his signature on Ext.A1. He believes that the accounts maintained by the plaintiff are true and correct. The plaintiff SA No.454/98 5 in his evidence has stated that DW1 has signed in his presence. It was also contended that there were other transactions also between the parties and all the payments for which receipts have been produced by the defendants, relate to the transaction in question. It was after adjusting those amounts, that the plaint claim was made. This specific averment in the plaint is not seen denied. Being a plea of discharge, the entire burden was on the defendants to show that they had paid the amount due to the plaintiff. Apart from that there is no merit in the contention that the promissory note is not supported by consideration in view of Section 118 of the Negotiable Instruments Act. One must remember that only the first defendant has gone into the box to be examined as DW1 and has admitted his signature in the document. He has also deposed that amounts were paid. It follows that Ext.A1 was supported by consideration. It is not necessary that a promissory note should be attested by witnesses. The trial court was fully justified in holding that the plea of discharge has not been SA No.454/98 6 proved by the defendants. There is no justification for the lower appellate court to reverse the findings of the trial court. The dismissal of the suit by the lower appellate court is clearly unsustainable in law. In the result, this appeal is allowed. The impugned judgment of the lower appellate court is set aside and the judgment and decree of the trial court are restored. P.Bhavadasan, Judge sta SA No.454/98 7