IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 AS.No. 560 of 2000(E) ------------------------------ OS.1356/1995 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): DEFENDANTS -------------------------------------------- *1. MOHANAN, AGED 37 YEARS, S/O. SUBRAMANIAN, VADAKKEKKAD VILLAGE & DESOM, CHAVAKKAD THALUK.(DIED) 2. SADHU, AGED 32 YEARS, S/O. SUBRAMANIAN, VADAKKEKKAD VILLAGE, & DESOM, CHAVAKKAD THALUK. 3. AMMINI, AGED 57 YEARS, W/O. EDAKKAD SUBRAMANIAN, VADAKKEKKAD VILLAGE & DESOM, CHAVAKKAD THALUK. 4. JAYAN, AGED 25 YEARS, S/O. EDAKKAD SUBRAMANIAN, VADAKKEKKAD VILLAGE & DESOM, CHAVAKKAD THALUK. *ADDL.APPELLANTS 5 TO 7 IMPLEADED. 5. SANTHA, W/O. LATE MOHANAN, AGED 40 YEARS, RESIDING AT EDAKKAD HOUSE, VADAKKEKAD VILLAGE AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 6. MINU DAS, AGED 15 YEARS, D/O. LATE MOHANAN, RESIDING AT EDAKKAD HOUSE, VADAKKEKAD VILLAGE AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. AS. NO.560/2000 7. MITHUN DAS, AGED 12 YEARS, S/O. LATE MOHANAN, RESIDING AT EDAKKAD HOUSE, VADAKKEKAD VILLAGE AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT (APPELLANTS 6 & 7 REP.BY GUARDIAN & MOTHER 5TH APPELLANT SANTHA). *ADDL. APPELLANTS 5 TO 7 ARE IMPLEADED AS PER ORDER DTD.09/07/2010 ON IA. NO.2375/2010. BY ADV. SRI.RAJIT RESPONDENT(S): PLAINTIFF ----------------------------------------- *RAGHAVAN, AGED 57 YEARS, S/O. PERINGODE APPU, VADAKKEKKAD VILLAGE & DESOM, CHAVAKKAD THALUK.(DIED) *ADDL. RESPONDENTS 2 TO 5 IMPLEADED 2. SHANTHA, AGED 55 YEARS, W/O. LATE RAGHAVAN, RESIDING AT VADAKKEKKAD VILLAGE & DESOM, CHAVAKKAD TALUK. 3. SHAJI, AGED 28 YEARS, S/O. LATE RAGHAVAN, DO. DO. 4. VIJAYA, AGED 38 YEARS, D/O. LATE RAGHAVAN, DO. DO. 5. BINDU, AGED 35 YEARS, D/O. LATE RAGHAVAN DO. DO. ADDL. RESPONDENTS 2 TO 5 ARE IMPLEADED AS THE LR'S OF THE DECEASED SOLE RESPONDENT VIDE ORDER DTD. 30.11.2007 ON IA. 3246/2007. SRI.ELIZABETH VARKEY ADDL. R2 TO R5 BY SRI.K.J.SAJI ISAAC THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 560 OF 2000 = = = = = = = = = = = = = = = Dated this the 5th day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.1356/95. The suit is for realisation of money based on a promissory note. It is the case of the plaintiff that the defendants had borrowed a sum of Rs.60,000/- and had executed a promissory note on receipt of consideration. On the other hand the defendants would contend they had never executed any promissory note in favour of the plaintiff and had borrowed any amount. According to them the plaintiff is running a jewellery shop and they have entrusted the plaintiff to make some new gold ornaments after giving old ornaments. At the time of delivery it was found that the A.S. 560 OF 2000 -2- defendants were liable to pay Rs.42,000/- towards the transaction of which they had only Rs.12,000/- and it was paid. For the balance amount of Rs.30,000/- the plaintiff has taken signatures in blank papers and had made use of those signatures to create a promissory note and file a suit. 2. In the trial court PW1 and DW1 were examined and Exts.A1 to A4(a) and B1 and B2 were marked. Learned counsel for the appellant had very strongly argued before me that the materials are lacking to prove the execution of Ext.A1. According to him it is a document created on a signed blank paper. The court below relied upon the following materials to find in favour of the plaintiff. It found that the defendants had admitted their signatures in the document. The defendants did not send a A.S. 560 OF 2000 -3- reply in spite of receipt of a notice. The evidence of PW1 was accepted by the court below and fourthly regarding the handwriting in Ext.A1. It was the case of the plaintiff that it is written by D1. But the defendants denied it but in evidence admitted that they are having other handwritings of the first defendant. The Court found that the defendants did not take out any steps to compare the handwriting. So on a cumulative effect of all these materials the Court granted a decree. 3. I had also perused Ext.A1 wherein the signatures are admitted. So far as the handwriting is concerned the learned counsel for the defendants wanted to point out and has pointed out the style of writing of the promissory note and the name written as Subramanian appears to be different. It has to A.S. 560 OF 2000 -4- be stated the plaintiff has categorically asserted that it is in the handwriting of the first defendant. DW1 has admitted that the sample writings of the father are available. The defendant did not take any steps for comparison of the handwriting. By mere suspicion the Court cannot jump to the conclusion otherwise. It is in this back ground it has to be remembered that such a notice was issued. When the notice was issued it was simply accepted without sending any reply. When confronted with a difficult situation it is stated that they approached the plaintiff and the plaintiff told them to give it part by part. It is only an explanation for explanation sake. Then the learned counsel would contend before me that as per the promissory note the amount is allowed for the purpose of daughters marriage. A.S. 560 OF 2000 -5- Exts.B1 and B2 are produced to show that the marriage of the daughters had taken place years back. One cannot go and find out the correctness of these things. It is also his argument that they were neighbours and therefore the plaintiffs should have known about it. It can be seen even according to the evidence that they approached the plaintiff for the purpose of making ornaments. Normally ornaments making are very much connected with marriage. So it may be for that purpose they had approached the plaintiff. PW1, had in clear categoric terms stated that the defendants approached him and defendants requested for money. The non sending of reply is fatal to the case because it goes a long way to hold that the defendants were not in a position to deny the promissory note. Further the court below had the opportunity to see the A.S. 560 OF 2000 -6- witnesses and their demanour and had arrived at a decision. I do not want to interfere with the said decision rendered by the trial court. Therefore the appeal lacks merits and the same is dismissed. I make it very clear that the disposal of the appeal shall not hinder the appellant to arrive at a amicable settlement. The parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 560 OF 2000 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 560 OF 2000 = = = = = = = = = = = J U D G M E N T 6th August, 2010.