IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 AS.No. 668 of 2001() ----------------------------- OS.40/1993 of SUB COURT, KOTTARAKKARA .................... APPELLANTS/DEFENDANTS 2 AND 3: ------------------------------------------------------- 1 MARIAMMA, W/O.JOHN, MELOOTU VEEDU, KIZHAKKE THERUVU WARD, KOTTARAKARA TALUK. 2. ALEX, SON OF JOHN, -DO- -DO-. BY ADV. SRI.C.V.VASUDEVAN RESPONDENTS/PLAINTIFF: ---------------------------------------- 1. M/S.JAYABHARATHAM FINANCIERS (REGD.), PUNALUR, A FIRM REPRESENTED BY ITS MANAGING PARTNER P.T. SUBHASH BABU, S/O. LATE P.O. THOMAS VAIDYAN, RESIDING AT JAYABHARATHAM BUNGLOW, PUNALUR, KOLLAM. 2. P.T. PRAKASH BABU, S/O.LATE P.O. THOMAS VAIDYAN, JAYABHARATHAM BUNGLOW, PUNALUR, KOLLAM. R1 & R2 BY ADV. SRI.S.SREEKUMAR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 668 of 2001 ORDER ON C.M.P. NO.4931/2001 IN A.S. NO.668/2001 DISMISSED 15/06/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.668 OF 2001 ............................................. Dated this the 15th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kottarakkara in O.S.No.40/1993. It is the case of the plaintiffs that the defendant had borrowed a sum of Rs.40,000/= with a stipulation to pay 18.5% interest per annum. The defendant in spite of notice had not paid back the amount, hence the suit. The defendant on the other hand denied execution of the promissory note as well as receipt of the amount. After an elaborate trial, the court below granted a decree in favour of the plaintiffs with 18.5% interest. It is against that decision, the defendant has come up in appeal. 2. Perused the records. Heard the learned counsel for the respondents. The suit is based on a promissory note alleged to be executed by the defendant on 20.2.1990 for a sum of Rs.40,000/=. The promissory note is witnessed by PWs 2 and 3. When the defendant disputed the signature, the plaintiffs had sent it for comparison and on account of lack of particulars, the expert was not in a position to furnish a : 2 : A.S.NO.668 OF 2001 proper report. The court below has heavily commended upon the non performance of the expert. It is a settled principle of law that handwriting expert's report is only an opinion like any other evidence and court can always rely upon direct evidence tendered by the parties in order to evaluate and appreciate the matter. 3. I had carefully perused the promissory note as well as evidence of PWs 2 and 3. PWs 2 and 3 were the employees of the plaintiffs' partnership firm. They were working as clerk as well as clerk cum cashier. Both of them had deposed before the court that the defendant had come to their office, borrowed amount in their presence and that the defendant had put his signature in the promissory note and the witnesses had also signed the same. 4. PW2, one Balakrishnan Nair had clearly deposed before the court that he was in the firm and it was in his handwriting the promissory note was filled and that he had signed as well as PW3 and the defendant had also signed the promissory note. The only suggestion put to him is that since he is an employee of the firm, he is giving false : 3 : A.S.NO.668 OF 2001 evidence. This has been denied by him. 5. PW3 is the other witness to the promissory note. He had deposed before the court that the promissory note is in the handwriting of PW2 and he had seen the defendant putting his signature in the promissory note. In the cross examination the suggestion is that since he is an employee, he is giving false evidence. It has been denied by him. 6. It is a well settled proposition of law that interestedness of a witness is not the sole reason for rejecting his evidence. It has been held that it is the intrinsic reliability and inherent probability of the evidence that has to be weighed in appreciating the matter. Evidence of PWs 2 and 3 does not suffer from any infirmity or contradiction and therefore, they are acceptable to prove execution of Ext.P1 promissory note by the defendant. The court below has considered various documents wherein signature of the defendant was available and had arrived at a decision that it looks like the signature of the defendant. It is true that the Hon'ble Supreme Court has cautioned that comparison of the handwriting by the court is : 4 : A.S.NO.668 OF 2001 not advisable for the reason that it is a hazardous task and the court lacks specialization in that branch. But the Supreme Court also made it clear that in the light of the provisions under Section 73 of the Evidence Act, the court is empowered to compare the handwriting and signature. The only caution is that finding of acceptability of execution of the document shall not be on the basis of mere comparison of the signature. It has been held that it can be used as a corroborative piece of material for the purpose of evaluating the evidence available in the case. So the evidence of PWs 2 and 3 which remains unshattered coupled with comparison of signature even with naked eyes would show that the defendant had executed promissory note as alleged in the plaint. It has also to be stated that though a lawyer notice was issued on 28.1.1993 the defendant had not chosen to send any reply. Further the defendant and plaintiffs were partners in the plaintiffs' firm, they are relatives and therefore acquaintance also cannot be questioned. 7. So from these materials, I hold that the defendant : 5 : A.S.NO.668 OF 2001 has executed the promissory note and had borrowed a sum of Rs.40,000/= and had not repaid it and so the plaintiffs are entitled to relief. The court below has granted 18.5% interest from the date of suit till realisation. I feel that it is excessive and therefore I restrict the rate of interest of 18.5% from the date of suit till the date of decree and thereafter reduce it to 6% till realisation. 8. In the result finding of the court below on execution of the promissory note and entitlement for a decree is confirmed with the only modification that the rate of interest shall be at 6% from the date of decree till realisation and by retaining the interest at 18.5% till the date of decree. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.668 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.668 OF 2001 ............................................. 15th day of June, 2010. 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