IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 RSA.No. 1124 of 2009() ---------------------- AS.70/2007 of SUB COURT, PALA OS.117/2005 of MUNSIFF MAGISTRATE COURT, ERATTUPETTA .................... APPELLANT(S): APPELLANT/DEFENDANT --------------------------------------------------------------- DOMINIC THOMAS, S/O.THOMAS, NELLUVELIL HOUSE, COLLEGE JUNCTION, ERATTUPETTA P.O. BY ADV. SRI.V.K.SUNIL SMT.NIMA JACOB RESPONDENT(S):RESPONDENT/PLAINTIFF ---------------------------------------------------------------- M/S.JEWEL FINANCIERS, ERATTUPETTA, REP. BY ITS MANAGING PARTNER MR.SAJI THOMAS, PURAPPANTHANAM, ERATTUPETTA P.O., KOTTAYAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1124 of 2009 -------------------------------------- Dated this the 29th day of October, 2009. JUDGMENT Second Appeal arises from judgment and decree of learned Sub Judge, Pala in A.S.No.70 of 2007 confirming judgment and decree of learned Munsiff, Erattupetta in O.S.No.117 of 2005. Respondent, a registered partnership firm (proved by Exts.A1 and A2) claimed that it had advanced a loan of Rs.50,000/- to the appellant on 25.10.2004 and the latter executed Ext.A3, promissory notice in its favour undertaking to pay the amount on demand with interest. On 10.7.2005 respondent issued Ext.A4, notice demanding payment of the amount due. Appellant sent Ext.A6, reply which according to the respondent contained false contentions. Hence the suit. Appellant contended that he had no such transaction with respondent on 25.10.2004, nor executed any demand promissory note. He claimed that under threat and coercion respondent obtained his signature on a blank, revenue stamp affixed paper which has been fabricated into a demand promissory notice. Learned Munsiff found that the demand promissory note was executed by the appellant and granted decree as prayed for. First appellate court has concurred with the finding and confirmed the decree. Hence this Second Appeal urging the following as substantial questions of law: i. Had not the appellant made out a case for adducing additional RSA No.1124/2009 2 evidence as contemplated under Order XLI Rule 27 of the Code of Civil Procedure and whether lower appellate court has properly appreciated and entertained the same before or at the time of hearing of the first appeal? ii. Whether the first appellate court was justified in dismissing the application submitted by the appellant for adducing additional evidence? iii. Is not the respondent who is a moneylender disentitled to recover any amount from his creditor(s) if he failed to keep the records and books of accounts in the form prescribed under the Kerala Moneylenders Act and the Rules made thereunder? iv. Whether finding of the courts below are the result of the wrong appreciation of law, facts and evidence which is liable to be interfered with under Section 100 of Code of Civil Procedure on the ground that it is inequitable? 2. It is contended by learned counsel for appellant that the case of respondent should have been considered on the pleadings made by the respondent and the evidence adduced by it and that the weakness of the case of the appellant should not have been a ground to grant decree in favour of the appellant. Learned counsel submits that courts below went wrong in placing reliance on Exts.A7 and A8 for inherent improbability in it. Further contention is that appellant had produced relevant documents in the first appellate court under Order 41 Rule 27 of the Code of Civil Procedure but the same were discarded by that court. 3. Ext.A3 is the disputed demand promissory note. Representative of respondent gave evidence as PW1 and testified to the case of respondent RSA No.1124/2009 3 regarding transaction and execution of Ext.A3. Ext. A7 is the day book and Ext.A8, the ledger folio relating to the alleged transaction of the appellant. When the appellant was examined as DW1 he stated that he had demanded a loan of Rs.20,000/- from respondent but he was given only Rs.17,500/-. At that time, his signature was taken on blank revenue stamp affixed paper. Two weeks’ later a demand promissory note was got executed from him. When he repaid the amount demand promissory note was scored off but he failed to take back the blank revenue stamp affixed signed paper. 4. So far as Ext.A3 is concerned, appellant does not dispute his signature on it. It is true that mere admission of signature does not amount to admission or proof of the execution of the document but it goes a long way in proving due execution. Appellant gave evidence as DW1 about his demanding loan of Rs.20,000/-, receiving Rs.17,500/- and at that time his signature being taken on a blank revenue stamp affixed paper and two weeks’ later a demand promissory note being got executed from him in favour of respondent. But these facts do not find a place in his pleadings. It is trite law that no amount of evidence which is not supported by pleadings can be looked into. In fact, in the evidence appellant admitted that he had executed a demand promissory note though according to him, after two weeks from the date of alleged transaction. It is true that the latter portion of Ext.A3 is seen scored off (counsel for appellant produced for my perusal a photocopy of Ext.A3) but that has nothing to do with the demand promissory note since the portion scored off relates to the details of the sureties, etc. which has no relevance in this case. RSA No.1124/2009 4 5. Exts.A7 and A8 are produced by the respondent on the request of the appellant. The improbability attempted to be pointed out from Ext.A8 is that the three entries at the beginning (of the relevant page) have been scored off and below that three entries are made the last one being the one relating to the alleged transaction with the appellant. Among the scored off entries Sl.No.2 is account No.18 of 2004 while Sl.No.3 is account No.17 of 2004. Learned counsel would say that if the ledger was properly maintained that mistake would not have occurred. May be it is due to that mistake that the said entries were scored off and written afresh correctly. Courts below have observed that Exts.A7 and A8 have been inspected by the income tax authorities from time to time. Courts below were inclined to accept the accuracy of Exts.A7 and A8. 6. I shall refer to the documents which the appellant claimed to have produced before the first appellate court. First one is the deposition of PW1 in a case under Section 138 of the Negotiable Instruments Act in respect of a cheque alleged to have been issued on 15.7.2005 for the sum of Rs.50,000/- and allegedly received by the appellant. Learned counsel submits that in connection with that case a notice was issued by the respondent on 10.7.2005 calling upon the appellant to pay the said amount. But, it is not disputed that the said cheque and notice came much after the disputed transaction in this case on 25.10.2004 and Ext.A3 allegedly executed on the same day. Therefore the cheque transaction can have no bearing on the transaction in the case on hand. Another document that learned counsel refers to is an undated chit said to have been issued by the respondent but, without mentioning the name of the recipient. RSA No.1124/2009 5 According to the learned counsel, PW1 admitted that he issued the receipt but not in favour of the appellant. A further document that the appellant is said to have produced in the first appellate court is a notice dated 20.7.2005 issued by the appellant, that also being after the filing of the suit calling upon respondent to return certain documents. Those documents were not produced in the trial court, nor are relevant in deciding the issue involved in this case. 7. Case pleaded by the appellant is that under threat and coercion his signature was obtained on a blank revenue stamp affixed paper. Appellant is an ayurveda physician . There is no acceptable evidence to show that signature of appellant was obtained under coercion as pleaded by him. Courts below have adverted to the contentions of the parties, evidence on record and come to the conclusion that Ext.A3 was executed by the appellant and that he failed to rebut the presumption under Section 118(a) of the Negotiable Instruments Act. Finding of the courts below rests on proper appreciation of evidence and no substantial question of law do arise for a decision. The Second Appeal is dismissed in limine. I.A.No.2565 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks