IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 AS.No. 431 of 1997() ------------------------------ OS.858/1992 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): DEFENDANTS --------------------- A.RAJAMMAL, RESIDING AT T.C 37/1240, VAZHAPPALLY FORT, THIRUVANANTHAPURAM. BY ADV. MR.B.KRISHNA MANI RESPONDENT(S): PLAINTIFF ------------------------ S.SAIFUDEEN, RESIDING AT T.C. 20/1178, THYCAUD, CHENGAZHASSERY, THIRUVANANTHAPURAM BY ADV.R.S.KALKURA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON 25/06/2009 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4037/1995 IN AS. NO.431/1995 DISMISSED 25/06/2009 SD/- K.SURENDRA MOHAN, JUDGE TRUE COPY P.S. TO JUDGE TSS K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.431 of 1997 ------------------------------------------- Dated this the 25th day of June, 2009 JUDGMENT The defendant in a suit for recovery of money is the appellant in this appeal. The respondent/plaintiff filed O.S.No.858 of 1992 before the Court of the IInd Additional Sub Judge, Thiruvananthapuram for the realization of an amount of Rs.50,000/- with interest and costs. According to the respondent/plaintiff, the amount was borrowed by the appellant on 24.3.1990 agreeing to repay the amount on demand with interest at the rate of 12% per annum, after executing a promissory note on the same date stipulating payment of the amount on demand. As additional security, the appellant also entrusted an undated cheque No.932684 of the Syndicate Bank, Fort Branch, drawn in favour of the respondent and signed by her for the same amount of Rs.50,000/-. It is stipulated in the promissory note that on repayment of the amount, the cheque also has to be returned. After availing the loan, the defendant/appellant did not pay back the amount and therefore, demands were made for repayment of the borrowed amount. Finally, an advocate's notice dated 18.6.1992 was issued and shortly A.S.No.431 of 1997 2 thereafter, the suit, O.S.No.858 of 1992 was filed for recovery of the amount due, when he came to know that the appellant was about to dispose of her movable and immovable properties with an intent to defeat her creditors. 2. The suit was contested by the appellant/defendant by filing written statement. It was contended by the appellant that the plaint claim was absolutely without any bonafides, whatsoever. She had not received any amount from the respondent on 24.3.1990 or on any other date, as alleged in the plaint. She denied the execution of the promissory note as well as the cheque. According to her, the promissory note and the cheque produced are fabricated. She denied that there was any transaction between herself and the respondent, as alleged in the plaint and also denied the liability to pay any amount to the respondent/plaintiff. It is further alleged that the suit notice dated 18.6.1992 was issued on 20.6.1992 and the suit was filed and an order of attachment was obtained without giving her sufficient time to issue a proper reply to the same. She alleged that the suit was filed on the instigation of one broker Velayudhan and one Musthafa, who were on inimical terms with the appellant and her husband. Therefore, she prayed for dismissal of the suit. A.S.No.431 of 1997 3 3. The suit was tried by the trial court on the above pleadings, after framing four issues:- 1) Whether the plaint pro-note and cheque were executed by the defendant in favour of plaintiff? 2) Whether the defendant received an amount of Rs.50,000/- from the plaintiff on 24.3.1990 as alleged? 3) Is the plaintiff entitled to get the plaint amount? 4) Reliefs and costs? 4. The evidence in this case consists of the oral testimonies of PWs.1 and 2 and Exts.A1 to A4 documents on the side of the plaintiff and the oral testimony of DW1 and Ext.B1 document on the side of the defendant. The trial court considered the evidence on record and the rival contentions of the parties and found that the execution of the promissory note was proved. Therefore, in the absence of any plea that the amount had been repaid, the plaintiff was held entitled to recover the amount of Rs.50,000/- with interest, as claimed in the plaint. Accordingly, the suit was decreed for an amount of Rs.63,650/- with 6% interest on the principal amount of Rs.50,000/- from the date of suit till realization, with costs. The appellant challenges the judgment and decree of the court below in this appeal. A.S.No.431 of 1997 4 5. I heard the learned counsel appearing for the parties. I have gone through the evidence on record, both oral and documentary. 6. According to the learned counsel for the appellant, the promissory note was not in her hand writing and the signatures in Ext.A1 promissory note and Ext.A2 cheque are not hers. In the nature of the contentions put forward by her, though it was imperative upon the appellant to have sworn to her case, she has not chosen to enter the witness box or to give evidence in support of her case. DW1, who has been examined for the defence, is the husband of the appellant. A reading of his deposition does not inspire confidence. In fact, the court below which had the benefit of seeing him and assessing his demeanour, has chosen to disbelieve him. The court below has taken note of the inconsistencies in his testimony. He has initially stated that the appellant had no account in the Syndicate Bank, Fort Branch on which, Ext.A2 cheque has been issued. Later on, when he was questioned regarding the pendency of a criminal case against the appellant with respect to another cheque issued by her, he had to admit that the defendant had such an account. It is worth noticing that the appellant has also been convicted in such criminal case, which was confirmed in appeal. The court below has noted that he was not willing to give A.S.No.431 of 1997 5 direct answers to the questions put in cross examination. He has even denied his signature in his own affidavit, in his anxiety to deny the signature put by him as an attestor, in Ext.A1. 7. On the other hand, the plaintiff has examined himself as PW1. He has sworn to the case pleaded in the plaint. According to him, the amount of Rs.50,000/- was paid to the appellant on 24.3.1990 and the appellant had executed Ext.A1 promissory note. He explained that the defendant and her husband had brought Ext.A2 cheque for the purpose of handing over the same to him as security. But, when the respondent insisted on the execution of a promissory note, Ext.A1 was executed. There are two attestors to Ext.A1 promissory note. One is PW2 and the other is DW1, husband of the defendant. According to the respondent, PW2 is a person who is conducting business in the adjacent shop room and the amount was advanced on his intervention. PW2 has spoken to the due execution of Ext.A1. He has seen the appellant signing Ext.A1 and has witnessed the execution of the document at the residence of the respondent. The evidence of PWs.1 and 2 clearly prove that Ext.A1 was duly executed by the plaintiff, after receiving an amount of Rs.50,000/- from the respondent. Though the appellant has alleged that the suit itself has been got instituted by one broker Velayudhan A.S.No.431 of 1997 6 and Mustafa, who are on inimical terms with herself and her husband, there is no evidence to substantiate the same. The appellant has no case that she has paid back the amount covered by Ext.A1 or any portion thereof. Therefore, the finding of the trial court that the appellant is liable to repay the amount borrowed by her after executing Ext.A1 is perfectly justified. In view of the above, the judgment and decree of the court below are confirmed and the appeal is dismissed. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.431 of 1997 7 K.S.SURENDRA MOHAN, J. --------------------------------------- A.S.No.431 of 1997 --------------------------------------- JUDGMENT 25.6.2009