IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 AS.No. 503 of 1995() -------------------- OS.190/1989 of ADDL.SUB COURT, KOCHI .................... APPELLANT(S)/DEFENDANTS :- --------------------------------------------- 1. THANKAPPAN, S/O.PARAMU, AGED 48, BUSINESS, RESIDING AT GANGA NIVAS, PARAPPILLY PARAMBU, KADAVANTHARA DESOM, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. V.R.LALITHA, AGED 43, WIFE OF RESPONDENT/DEFENDANT NO.1, RESIDING AT GANGA NIVAS, PARAPPILLY PARAMBU, KADAVANTHARA DESOM, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S)/PLAINTIFF :- ------------------------------------------- UMMAR KOYA, S/O.ABUBACKER, AGED 43, SEAMAN, PERMANENTLY RESIDING AT ODATHAPARAMBIL, CC.4/628, PERUMAL PARAMBU, KARIPPALAM DESOM, MATTANCHERRY VILLAGE, COCHIN TALUK. GP SRI.S.DILEEP THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - A.S. No. 503 of 1995 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2011. JUDGMENT The defendants, who suffered a decree at the hands of the lower court, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was based on a promissory note, namely, Ext.A1 dated 16.09.1987 on the allegation that the defendant had borrowed a sum of Rs.32,000/- agreeing to repay with interest. Since the amount was unpaid, the suit was laid. 3. The suit was resisted by the defendants. They pointed out that they had no transaction with the plaintiff and their dealings are with the mother of the plaintiff. The suit related to exchange of a movable property with immovable property. The understanding at the time of the transaction was that the mother of the plaintiff would discharge the debt in respect of a vehicle. Due to financial restrain, she did not do so and ultimately she sold the vehicle. It transpires that S.A.No. 503 of 1995 2 the plaintiff had discharged the liability. In such circumstances, the plaintiff along with few men came to the place and forced the defendants to execute Ext.A1 promissory note. It was not voluntarily executed and it was done under threat and coercion. It was also pointed out that they had no transaction with the plaintiff at all. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, issues were raised by the trial court. The evidence consists of Ext.A1 marked from the side of the plaintiff and the testimony of D.W.1 from the side of the defendants. The trial court on an appreciation of the evidence in the case, came to the conclusion that the defendants were unable to establish the plea of threat and coercion and found that Ext.A1 promissory note had in fact been executed by the defendants. Accordingly, the suit was decreed. 5. The question that arises for consideration is whether S.A.No. 503 of 1995 3 the finding of the court below that Ext.A1 was executed by the defendants in favour of the plaintiff is sustainable. 6. The learned counsel appearing for the appellants pointed out that the suit was filed as an indigent person and that is sufficient to show that the plaintiff had no means to advance a sum of Rs.32,000/-. The court fee that had to be paid was only Rs.450/-. A person who had no capacity to pay the court fee could not have paid Rs.32,000/- to the defendants. The learned counsel also pointed out that plaintiff has not mounted the box and therefore, an adverse inference ought to have been drawn. According to the learned counsel, the lower court has merely on the basis of Section 118 of the Negotiable Instruments Act held that Ext.A1 is supported by consideration. In the light of the contentions taken by the defendants in their written statement it was incumbent on the part of the plaintiff to adduce evidence to show that the transaction was as alleged by him and is supported by consideration. There is no such evidence in the case. The definite stand taken by the S.A.No. 503 of 1995 4 defendants was that the transaction was with the mother of the plaintiff. These aspects had not been considered by the lower court, which has resulted in passing of an erroneous decree and execution of Ext.A1 is admitted. 7. Learned counsel appearing for the respondent pointed out that the execution of Ext.A1 was admitted by the defendants. The defence taken was that it was executed under undue influence, threat and coercion and that the execution was not voluntary. Learned counsel went on to point out that, that being the plea, the burden was on the defendants to show that Ext.A1 was bad for any one of the vitiating circumstances pleaded by them. 8. The evidence of D.W.1 is to the effect that he did execute Ext.A1 document. It is seen that he initially admitted that the amount was due, but later on he resiled from the same. He goes on to say about the transaction between himself and the plaintiff's mother Zainaba in which the vehicle was exchanged for the immovable property. However, his evidence does not go in consonance S.A.No. 503 of 1995 5 with his written statement. The case of the defendants is that Ext.A1 was executed on the understanding that the liability of the vehicle would be discharged by the plaintiff. A reading of the evidence of D.W.1 would show that a totally different case has been set up at the time of evidence than the one contained in the written statement. 9. As rightly noticed by the learned counsel for the respondent once having admitted execution of Ext.A1 and it is said to be vitiated by undue influence, threat and coercion, the burden is on the defendants to establish those vitiating elements. The solitary evidence given on behalf of the defendants is the testimony furnished by D.W.1. Apart from the fact that there are no specific pleadings in this regard, there is absolutely no evidence regarding undue influence, threat or coercion having exercised to force the defendants to execute Ext.A1 document. 10. If as a matter of fact they were forced to execute Ext.A1 document, he would have taken some steps in this regard to complaint to the police. It is significant to notice S.A.No. 503 of 1995 6 that there is no case for the first defendant that his wife was also happened to sign under threat or coercion. 11. The mere fact that the plaintiff had sued as an indigent person does not mean that he had no capacity to pay the amount at the relevant time. In the light of the evidence furnished by D.W.1 it is very clear that Ext.A1 is supported by consideration. The defendants did not adduce any independent evidence in support of their contentions. The plea that the trial court was in error in relying on the presumption available under Section 118 of the Negotiable Instruments Act is without any basis. As already observed, evidence of D.W.1 does get support from ExtA1 and vis-a-versa. 12. In the light of this unsatisfactory state of affairs, there is no merit in the contention that since the plaintiff had not mounted the box, a decree ought not to have been granted in his favour. There is no specific averment in the written statement that Ext.A1 is not supported by consideration, but the definite stand taken by the S.A.No. 503 of 1995 7 defendants is that execution is vitiated by undue influence, threat and coercion. The trial court had occasion to witness the demeanour of the witnesses and had formed the view that Ext.A1 was infact executed by the defendants and money was due from them. On going through the evidence it could not be said that the finding is perverse or unwarranted by the evidence on record, which is a possible finding. The mere fact that a different view may be possible is not a ground to interfere. The result is that this appeal is without merits and it is only to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE ln.