IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 RSA.No. 1237 of 2010() ---------------------- AS.48/2008 of PRINCIPAL SUB COURT,ALAPPUZHA OS.294/2006 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------- TITTY HARSHAN, S/O.LATE HARSHAN PILLAI, AGED 52 YEARS, KURISINKAL HOUSE, PATHIRAPPALLY PO, ALAPPUZHA. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------- 1. VIDHYADHARAN . S/O.KESAVAN, AGED ABOUT 52 YEARS, VAISYAMPARAMBIL, WARD NO.14, PATHIRAPPALLY PO, ALAPPUZHA, PIN 688 521. 2. LALITHA, W/O.VIDHYADHARAN, AGED 52 YEARS, PIN 688 521. ADV. SRI.K.V.SADANANDA PRABHU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1237 of 2010 --------------------------------------- Dated this 20th day of December, 2010 JUDGMENT Against concurrent verdict entered by the courts below, plaintiff has come up in second appeal urging by way of substantial questions of law whether it was necessary for the appellant to allege details of original transaction in the plaint itself, admission of signature on the disputed document by the respondents proved execution of the document to a great extent, non examination of attesting witness is crucial in proving execution and whether a demand promissory note signed in blank gives authority to fill up the same. 2. Short facts necessary for consideration of the matter are: Appellant/plaintiff claimed that respondents/defendants borrowed `.37,000/- from petitioner on 22-02-2005 and executed a demand promissory note. Respondents had agreed to repay the said amount with interest @12% per annum. On 11-01-2006 appellant issued Ext.A2, notice to the respondents demanding payment of the amount with interest. Respondents received the notice and send a reply denying claim of the appellant. Hence R.S.A.No.1237 of 2010 : 2 : the suit. Respondents contended that there was no such transaction as pleaded by the appellant and that they had not executed any demand promissory note. On 07-02-2005 respondents had purchased 2.02 Ares of land from appellant and his elder brother, Bonny Harshan. It was argued that appellant and his brother would reclaim the pond in the said property and remove the electric post. For the said purpose `.25,000/-, out of the sale consideration was retained by respondents. At that time, as security for the said amount petitioner obtained signed blank stamped paper from the respondents which has been misused and made into a demand promissory note like Ext.A1. Courts below did not accept case of appellant and found against him. Learned counsel for appellant urging as substantial questions of law the above referred questions contended that when the signature in Ext.A1 is admitted by the respondents, initial burden of proof on the part of appellant is discharged and then the onus of proof is shifted to the respondents to prove their case. It is also the contention of learned counsel that admission of signature in Ext.A1 went a long way in proving due execution of the demand promissory note. Learned counsel has placed reliance on the decision in Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulau Firm and Ors. (AIR 2008 SC 2898). R.S.A.No.1237 of 2010 : 3 : 3. Appellant gave evidence as PW1 and testified to his case. He proved Exts.A1 to A4 of which, Ext.A1 is the disputed promissory note. Contra evidence is given by respondent No.1 as DW1. He proved Ext.B1, the reply to Ext.A2, notice. Trial court found that there is no acceptable evidence for the due execution of Ext.A1, demand promissory note. Trial court observed that though in chief examination appellant as PW1 asserted that request for loan was made by the respondent on 22-02-2005, to be very precise at 4 p.m that day, in cross examination he changed his version and claimed that the request was made on 21-02-2005. Trial court also noticed that entries in Ext.A1 were in different ink and when appellant was cross examined in that regard he came up with an explanation that the demand promissory note was prepared (by the respondents) and brought to him. In cross examination of appellant it also came out that respondent No.2 was not before him at the time of the alleged transaction. Though it is the case of appellant that respondents had agreed to pay interest at the rate of 12% p.a, Ext.A1, the demand promissory note made no mention of that. Trial court from the above circumstances came to the conclusion that in the circumstances, contention of appellant that there was a loan transaction on 22-02-2005 and that respondents executed Ext.A1, R.S.A.No.1237 of 2010 : 4 : demand promissory note in his favour on that day cannot be believed. Trial court also observed that it is difficult to believe that when respondent No.2 was not even before the appellant, he would advance a sum of `.37,000/- on the security of a document said to be signed by respondent No.2 as well. Trial court observed that it is difficult to believe that without making any provision regarding interest in Ext.A1, and under an oral agreement regarding payment of interest, appellant would advance a sum of `.37,000/- to the respondents. In spite of denial of execution of the demand promissory note and the above circumstances appellant did not examine any of the (alleged) witnesses in the said document. It is in these circumstances that trial court decided against due execution of Ext.A1. Appellate court has confirmed that finding. 4. The decision relied on by learned counsel was the case where defendants denied execution of the demand promissory note but the trial court and the appellate court found in favour of its due execution and then, what remained was the question of drawal of presumption under Sec.118 of the Negotiable Instruments Act. That is not the situation in the case on hand. 5. No doubt, admission of signature in the disputed R.S.A.No.1237 of 2010 : 5 : document is a circumstance which would go a long way in proving execution of the document. But, it is the settled position of law that admission of document means admission of its due execution and not merely admission of the signature in the document. There can be no doubt on the facts pleaded by respondents, burden of proving due execution of Ext.A1 was on the appellant. It is relevant to note that none of the (alleged) witnesses in Ext.A1 was examined by the appellant. What then is available is only the evidence of appellant and respondent No.1 on oath as PW1 and DW1. Having regard to the facts and circumstances of the case courts below were not impressed by the evidence given by the appellant as PW1 and non suited him. Concurrent finding is based on evidence and does not call for interference so far as it is shown that the said finding is perverse or it is not supported by evidence. Nor do I find any question of law, much less any substantial question of law involved in this appeal and arising for a decision. Second appeal is dismissed in limine. (THOMAS P JOSEPH, JUDGE) Sbna/-