IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 787 of 2000(B) ------------------------------- AS.NO. 78/1993 of PRL.SUB COURT, IRINJALAKUDA OS.NO. 395/1992 of PRL.MUNSIFF COURT, IRINJALAKUDA .................... APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 6: --------------------------------------------------------------------------- 1. DR.VIJAYA, D/O. KAPITHANPARAMBIL LATE VISWAMBHARAN, ALATHUR VILLAGE, MUKUNDAPURAM, THRISSUR DISTRICT. 2. SHAJI, S/O. LATE VISWAMBHARAN, DO- DO- 3. SHIJO, S/O. LATE VISWAMBHARAN, DO- DO- 4. AJITHA, D/O. LATE VISWAMBHARAN DO- DO- 5. JYOTHY, D/O. LATE VISWAMBHARAN DO- DO- BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S)/ RESPONDENTS/ PLAINTIFF AND 1ST DEFENDANT: --------------------------------------------------------------------------------------------------- 1. SREEDHARAN, S/O. MUNNAPLAKKAL ITTIRA, KALLUR VADAKKUMMIRI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. BALAN, S/O.KAIPUZHA VELAYUDHAN, ANNALLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. R1 BY ADV. SRI.DENIZEN KOMATH SRI.V.M.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T There is no representation on either side. The appeal is accordingly dismissed for default. 06/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No.787 of 2000 --------------------------------- Dated this the 3rd day of June, 2011 JUDGMENT Faced with the concurrent findings against them the defendants 2 to 6 in O.S.No.395/1992 before the Munsiff's Court, Irinjalakuda has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid the suit on the basis of a Ext.A1 promissory note said to have been executed by the first defendant, the father of defendants 2 to 6. According to him, the defendants had borrowed a sum of 10,000/- promising to repay the same with interest. That was not done. The plaintiff had demanded the amount due as per the promissory note several times to the defendants. But they have not paid the same. Hence the plaintiff was constrained to issue a lawyer notice to the defendants. Unfortunately, Viswambaran, one of the executant is no more and his legal heirs are impleaded in the party array as defendants 2 to 6. On the basis of these allegations, the suit was laid. S.A.No.787 of 2000 2 3. The first defendant remained exparte. Defendants 2 to 6 chose to contest the suit. It has pointed out that the averments contained in paragraph No.1 of the plaint were utter falsehood. It is incorrect to state that the first defendant and the father of the defendant Nos.2 to 6 had borrowed a sum of Rs.10,000/- from the plaintiff after executing a promissory note. Viswambaran had never executed any promissory note in favour of the plaintiff along with the first defendant. The first defendant and Viswambaran were not on good terms at the time of the alleged execution of the promissory note. Further Viswambaran had deposits in Annamanada Co-operative Society, Kanaka Traders, and Annamanada Enterprises. He had deposited amounts in his name and in the names of defendant Nos. 2 to 6 from the said institutions except the deposit made in the name of the 4th defendant. The 4th defendant had instituted a suit in O.S.2853/1986 on the file of the Munsiff's Court, Irinjalakuda against Annamanada Enterprises and attached the decree obtained by the said enterprises in the suit. Thereafter, the said Enterprises became inimical towards the defendant Nos.2 to 6. According to these defendants for the purpose of depositing and S.A.No.787 of 2000 3 withdrawing the amounts in the Annamanada Enterprises and co- operative society, later Viswambaran might have been handed over blank signed papers. One of such papers might have been used to concoct the promissory note and it is pointed out that the said promissory note is not supported by consideration. They therefore, prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and document marked as Exts.A1 and A2 from the side of the plaintiff. Defendants examined as DWs 1 and 2 and had Ext.B1 marked. Ext.X1 is marked as third party exhibit. 5. On an appreciation of the evidence in the case, the trial court found that the contentions in the written statement are totally untenable and decreed the suit. Defendants 2 to 6 carried the matter in appeal as A.S.78/1993 before the Sub Court, Irinjalakuda. The lower appellate court on an appreciation of the evidence found that no grounds are made out to interfere with the judgment and decree of the trial court and dismissed the appeal. S.A.No.787 of 2000 4 6. Notice is seen issued on the following substantial questions of law: i. Whether on the facts and circumstances of the case the judgment and decree rendered by the learned Munsiff and confirmed by the Subordinate Judge is rendered without evaluating the circumstances and factual aspects of the case. ii. Whether the court below are right in not taking into consideration the denial by the appellants, of the execution of the pronote by their deceased father. iii. Whether the averment that a person had signed in a blank paper, amounts to admission of execution of a promissory note, more so when the suit is brought by the third person. iv. Did not the courts below committed illegality when it held that Ext.A1 promissory note duly executed, even when any independent witness was examined for proving the same. 7. Sri.Ranjith Thamban, the learned counsel appearing for the appellant pointed out that both the courts below have erred in holding that since the execution of the promissory note is admitted consideration will be deemed to have been passed. According to the learned counsel, the courts below have failed to note the plea put forward by the defendants. The definite plea was that Viswambaran was affluent and there was no necessity to borrow any amount from the plaintiff. Further contention was S.A.No.787 of 2000 5 that in connection with the deposit made in Annamanada Co- operative Society and Enterprises and for withdrawing amounts from the said concern. Viswambaran might have been handed over signed blank papers and one of them might have been used to concoct the promissory note. These vital aspects have been omitted to be noticed by the courts below and judgments and decrees are therefore unsustainable in law. 8. Though the arguments may look attractive, they are without any basis whatsoever. Both the courts below have found that Viswambaran was estranged from his family and he was suffering from cancer. The only person who had taken some interest in the case of deceased Viswambaran was the first defendant who is none other than his brother-in-law. Both the courts below have found that on 08.04.1989, when the borrowal was made, Viswambaran might have been in need of money. Further, the courts below have also found that the contesting defendants had not specifically denied the signature of Viswambaran in Ext.A1 and in fact admitted the same. S.A.No.787 of 2000 6 9. It is true that merely because the signature is admitted, it does not lead to the conclusion that the document is supported by consideration. However, PW1 has given convincing evidence in this regard. He has spoken about the circumstances, under which the amount was paid to Viswambaran. He is a school teacher by profession. The case of the contesting defendant was that the plaintiff was in close contact with Neelakandan Namboodiri, who was the managing partner of the Annamanada Enterprises with whom the defendants are in litigation. Further contention was that probably, utilizing one of the signed blank papers given by Viswambaran, Ext.A1 might have been drawn up. There is no evidence regarding their claim. 10. One aspect needs to be noticed. Viswambaran was not an illiterate person. He has occupied the post of the Director of Annamanada co-operative society. It is very difficult to believe that such a person would simply entrust blank signed papers to a chitty concern. Both the courts below have found that the evidence available clearly indicates the document was in fact executed by Viswambaran. S.A.No.787 of 2000 7 11. It has also come out in evidence that a notice was issued to Viswambaran as well as the other defendant. There is nothing to show that any reply has been sent by him. If as a matter of fact the Viswambaran had not executed the document, the contesting defendants would have taken the first opportunity to deny the execution of the promissory note. Whatever that be the courts below on an appreciation of the evidence found that Ext.A1 promissory note was in fact executed by Viswambaran. No substantial question of law arises for consideration in the second appeal. The second appeal is without merits whatsoever and is accordingly dismissed confirming the judgments and decrees of the courts below. P.BHAVADASAN, JUDGE. ln