IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 AS.No. 603 of 1994() -------------------- OS.353/1992 of ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/DEFENDANT: -------------- P.A.UBAIDULLA, BHEL TOWNSHIP, KAILASAPURAM, THIRUCHIRAPPALLI, TAMILNADU. BY ADV. SRI.M.C.SEN, PARVATHI.A.MENON RESPONDENT/PLAINTIFF --------------- IMBICHI BAVA, S/O.MOHAMMED, NACHUPARAMBIL, FEROKE AMSOM, NALLOR DESOM, POST FEROKE KOZHIKODE TALUK ADV. SRI.P.M.MOHAMMED ALI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.3695/94 IN AS 603/94 DISMISSED 23/3/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO.603 OF 1994 ------------------------------------------ Dated 23rd March 2009 JUDGMENT Defendant in O.S.353/1992 on the file of Sub court, Kozhikode is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.45,000/- borrowed by the appellant with interest and cost contending that on 9/10/1989 appellant came to his house and asked for a loan of Rs.45,000/- promising to repay the same within one month and as they are co-workers in BHEL of Trichi respondent paid the money. When the appellant did not repay the same within one month, respondent approached him. Then appellant promised to repay the same within a period of twenty months and as a security for the same in the presence of two witnesses Ext.A1 agreement was executed on 9/11/1989. When appellant failed to pay the same within the time, Ext.A2 notice was sent demanding the amount for which Ext.A3 reply was sent denying execution of Ext.A1 and contending that only Rs.4,500/- was borrowed and Rs.5,000/- was AS 603/1994 2 repaid. Respondent contended that appellant is liable to pay Rs.45,000/- with interest and sought the decree. Appellant filed written statement contending that he had borrowed only Rs.4,500/- and Rs.5,000/- was repaid and at the time of borrowal appellant had given a signed blank stamp paper and when the amount was repaid appellant asked for return of the stamp paper, but it was not returned and he is not liable to pay any amount. 2. Learned Sub Judge on the evidence of Pws.1 and 2, Exts.A1 to A3 on the side of respondent and DW1 on the side of appellant accepting the evidence of Pws.1 and 2 disbelieving the evidence of DW1, found that appellant borrowed Rs.45,000/- agreeing to repay the same and executed Ext.A1 but did not repay and granted a decree directing appellant to repay Rs.66,750/- with interest at 6% per annum on Rs.45,000/- from the date of the suit. It is challenged in the appeal. Though respondent was originally appeared through Adv. P.M.Mohammed Ali, after his demise no other counsel was appointed or appeared. 3. Learned counsel appearing for AS 603/1994 3 appellant was heard. 4. Learned counsel appearing for appellant argued that learned Sub Judge did not properly appreciate the evidence and admission of PW1 which cuts the very root of his case was not taken into consideration. It was pointed out that as per the plaint allegations and evidence of PW1, appellant borrowed Rs.45,000/- on 9/10/1989 promising to repay the same within one month and on the failure to repay, respondent approached appellant and then Ext.A1 document was executed on 9/11/1989. It was pointed out that case of PW1 from the box was that as the appellant failed to pay the amount as promised, he approached the appellant on the morning of 10/11/1989 and he promised to contact respondent in the evening and on the evening of the same day along with his brother-in- law appellant came to his house and in the presence of witnesses executed Ext.A1. It was pointed out that if that be the case, Ext.A1 document could have been executed only on 10/11/1981 and Ext.A1 purportedly executed on 9/11/1989 should not have been accepted by the trial court. It was also AS 603/1994 4 argued that learned Sub Judge should not have believed PW2 who is none other than the elder brother of the son-in-law of the respondent, especially when his evidence is artificial and could not have been relied on. 5. Learned Sub Judge granted a decree in favour of respondent disbelieving the evidence of appellant as DW1 and accepting the evidence of respondent as PW1 and his witness PW2. Question is whether appreciation of evidence by the trial court was proper or perverse. 6. In Ext.A2 notice as well as in the plaint, it is the specific case of the respondent that appellant borrowed Rs.45,000/- on 9/10/1989 agreeing to repay the same within one month on 9/10/1989 and on the failure of the appellant to repay the amount respondent approached appellant and thereafter as security Ext.A1 agreement was executed. Though Ext.A1 is termed as a promissory note by PW1, there is no promise in Ext.A1 to repay the same on demand and so it cannot be promissory note. As per Ext.A1 that document was executed on 9/11/1989. AS 603/1994 5 7. Ext.A1 is an agreement whereunder the executent has agreed to repay Rs.45,000/- borrowed from respondent within a period of twenty months from 9/11/1989. Ext.A1 does not show when that amount was paid. As per the recitals payment already made could be either on the same day or any day prior to 9/11/1989. But the promise was to repay that amount within twenty months from 9/11/1989, the date of the document. If Ext.A1 is a document executed in the ordinary course, it could have been executed only on 9/11/1989. It is seen executed in the presence of two witnesses. PW2 was the first attesting witness. One was second witness. But Ext.A1 does not contain the details which ordinarily seen in a document including the address of the attesting witnesses. As rightly pointed out by the learned counsel appearing for appellant admission in the written statement about the signature in Ext.A1 does not tantamount to the admission of execution of the document. Execution is to be proved by the respondent, as execution was denied by the appellant. 8. If we are to believe the evidence of AS 603/1994 6 PW1, as appellant failed to repay the amount within one month from the date of its borrowal as agreed respondent approached appellant on the morning of 10/11/1989. Thereafter Ext.A1 was executed on the evening of the same day. If that be so, it could have been executed only on 10/11/1989 and could not have been executed on 9/11/1989 as seen in Ext.A1. This evidence of PW1 definitely cut the very root of the case of the respondent with regard to execution of Ext.A1. Not even an attempt was made at the tune of re-examination to clarify the date of execution of Ext.A1 if the evidence of PW1 with regard to the execution on 10/11/1989 was a mistake. Therefore, as the evidence stands Ext.A1 was executed on 10/11/1989 and not on 9/11/1989. Unfortunately, this crucial aspect was omitted to be taken note of by the learned Sub Judge and evidence of PW1 was accepted. 9. Though evidence of PW2 was accepted by court below, the very fact that he was none other than the elder brother of the son-in-law of respondent was not properly considered by the trial court. If the evidence of PW2 is to be believed, AS 603/1994 7 PW2 was aware that appellant would borrow Rs.10,000/- from respondent on 9/10/1989. It is to enable PW1 to pay, PW2 went to PW1 to return Rs.10,000/- allegedly borrowed earlier. According to PW2 respondent paid Rs.45,000/- inclusive of Rs.10,000/- paid by him. That is the evidence of PW1 also. But PW1 has no such case in the plaint. On the other hand, his case was that the amount borrowed by the appellant was with him and it was kept by him towards the marriage expenses of his daughter. Evidently case of borrowal of Rs.10,000/- was created to justify the presence of DW1 at the time of alleged payment of Rs.45,000/- clearly an after thought. If we are to believe the evidence of PW2, again when the amount was to be returned by the appellant, he approached PW1 and that too for borrowing Rs.10,000/- so that he could witness the transaction. This is the most artificial which should not have been believed by the learned Sub Judge. When appreciating the evidence in the proper perspective it can only be found that evidence of Pws.1 and 2 cannot be believed to hold that appellant borrowed Rs.45,000/- from the respondent AS 603/1994 8 or executed Ext.A1 agreeing to repay same. 10. Fact that appellant did not send a notice demanding return of signed blank paper when he allegedly repaid the amount or fact that he admitted his signature in Ext.A1 or further fact that he admitted borrowal of Rs.45,000/- are not sufficient grounds to find that appellant borrowed Rs.45,000/- from the respondent. When the evidence tendered by Pws.1 and 2 are found to be unbelievable respondent is not entitled to the decree. Appeal is allowed. Judgment of Sub court, Kozhikode in O.S.353/1992 is set aside. Suit stands dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. AS 603/1994 9 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S. 603/1994 23rd February 2009 ============================