IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 RSA.No. 230 of 2009 --------------------------------- AS.160/2003 of DISTRICT COURT, PALAKKAD OS.201/2002 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT: VELUCHAMI CHETTIAR, S/O.SUPPUCHITTIAR, KUMARANUR KALAM, KOZHIPATHY VILLAGE, CHITTUR TALUK. BY ADV. SRI.A.R.GANGADAS RESPONDENT/RESPONDENT/RESPONDENT: PONNAPPAKOUNDER @ PAZHAISWAMY KOUNDER, S/O.PAZHANI SWAMY, KOUNDER SUBBAYYA KOUNDER PUDUR, MACHINAIKAMLAYAM, POLLACHI TALUK, TAMIL NADU. ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.230 of 2009 -------------------------- JUDGMENT This Regular Second Appeal has been filed assailing a money decree concurrently passed by the courts below against the appellant/defendant. The respondent/plaintiff instituted O.S.No.201/02 before the Munsiff's Court, Chittur against the appellant/defendant for recovery of money based on two promissory notes, inter alia, on the allegations that on 14.5.2000 the appellant/ defendant borrowed an amount of Rs.35,000/- and executed Exhibit A1 promissory note agreeing to repay the amount with interest at 12% per annum; that thereafter on 17.6.2000, the appellant/ defendant borrowed an additional amount of Rs.35,000/- and executed Exhibit A2 promissory note for the said amount; that the appellant/defendant did not repay any amount either towards principal or towards interest despite demand made in person RSA 230/09 2 and through mediators and that finally on 18.3.2002 the respondent/plaintiff issued Exhibit A3 notice and the appellant/defendant issued Exhibit A4 reply to the said notice setting up untenable contentions and hence the suit. 2. The appellant/defendant filed written statement resisting the suit, inter alia, contending that he did not borrow Rs.70,000/- from the respondent/plaintiff as alleged and did not execute promissory notes as alleged; that he had borrowed only Rs.30,000/- from the respondent/ plaintiff and at that time, on the insistence of the respondent/plaintiff, two promissory notes for Rs.35,000/- each were executed in favour of the respondent/plaintiff; that he is willing to repay Rs.30,000/-, which is the actual amount borrowed by him and that the respondent/plaintiff is not entitled to any relief and the suit has to be dismissed. 3. On the above pleadings, the trial court raised necessary issues for trial and considering RSA 230/09 3 the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DW1 and documentary evidence Exhibits A1 to A7, the trial court decreed the suit with costs. The said decree and judgment was assailed by the appellant/ defendant before the first appellate court filing A.S.No.160/03 and the District Judge, Palakkad vide judgment dated 31.8.2006 dismissed the said appeal confirming the decree passed by the trial court. Hence this Regular Second Appeal against the concurrent verdicts of the courts below. 4. It is vehemently contended before me by the learned counsel for the appellant/defendant that the appellant/defendant was hard pressed for money and it was in that circumstance that he was constrained to execute two promissory notes as demanded by the respondent/plaintiff to avail of a loan of Rs.30,000/- and that the decree of the court below accepting the false case of the respondent/plaintiff deserves to be interfered with by this Court in this Regular Second Appeal. The RSA 230/09 4 appellant/defendant has admitted that he has executed both Exhibits A1 and A2 promissory notes, writing in his own hand writing and duly affixing his signature, though, according to him, he has not received the entire consideration, but has received only Rs.30,000/-. 5. On the contentions of the appellant/ defendant, it cannot be taken that his case is that he executed Exhibit A1 on the date of the transaction and thereafter executed Exhibit A2 after a month. He has also no case that one of the promissory notes was anti dated. When asked as to the dates on which Exhibits A1 and A2 were executed by him, he has answered that he does not remember the dates on which those pro notes were executed. The answer is suggestive of both the pro notes having been executed on different dates, as the answer is not that he executed both the pro notes on the same date. He further asserted that Exhibit A1 was executed on 14.5.2000 and added that Exhibit A2 promissory note was also executed on that day. RSA 230/09 5 As rightly observed by the courts below, no prudent money lendor would get a post dated promissory note executed, as the purpose could very well be defeated by the executant, issuing a notice regarding getting executed from him a promissory note, describing the circumstance under which it so happened to be executed by him. Further, as DW1, the appellant/defendant gave evidence that he did not borrow any amount from the respondent/plaintiff as contended by him in the written statement, but that the amount was being received by him from the wife of the respondent/plaintiff. Probably, the purpose for setting up such a case is to get down the wife of the respondent/plaintiff also as a witness to court. On the whole, the contentions set up by the appellant/defendant in the written statement resisting the suit was found to be inconsistent and was disbelieved by the courts below. 6. Though certain points are raised as substantial questions of law in the memorandum of RSA 230/09 6 appeal, on the facts of the particular case, those points do not arise even as questions of law and much less as substantial questions of law. There is absolutely no merit in this Regular Second Appeal and no substantial question of law arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal. 4th March, 2009 (K.P.Balachandran, Judge) tkv