IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 AS.No. 666 of 1999() -------------------- OS.819/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLAN/PLAINTIFF: -------------- P.I. CHERIAN, SON OF ITTY IPE CHERIAN, RESIDING AT KOSAMATTOM PUTHENPURA, NATTASSERY KARA, KOTTAYAM. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI A. SIVAMANI KAIMAL RESPONDENT/DEFENDANT: -------------------- ABRAHAM KURUVILLA, RESIDING AT THANNICKAL HOUSE, PARAMPUZHA, KOTTAYAM. ADV. SRI.P.K.BALAKRISHNAN NAIR SRI.V.K.SUNIL THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.666 OF 1999 -------------------------- DATED THIS THE 7TH DAY OF DECEMBER, 2009 JUDGMENT Plaintiff in O.S.No.819/95 on the file of the Principal Sub Court, Kottayam is the appellant. The suit was filed for realisation of the principal amount of Rs.25,000/- with 9% interest. The court below decreed the suit in part allowing the plaintiff to realise from the defendant and his assets a sum of Rs.10,000/- with future interest at 6% per annum from the date of suit till realisation. Aggrieved by the dismissal of the part of the claim, the plaintiff has preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. According to the plaintiff, the defendant borrowed Rs.25,000/- on 20/4/1995 from him and executed a demand promissory note in his favour agreeing to pay the amount with -2- A.S.No.666/99 interest at 18% per annum. 3. In the written statement filed by the defendant, he denied the averment in the plaint that he borrowed a sum of Rs.25,000/- on 20/4/1995. According to him, he borrowed Rs.10,000/- from the plaintiff on 6/6/1994 and that the plaintiff obtained several signed papers with and without stamp from him. It is also contended that the plaintiff has fabricated the promissory note by using signed blank papers obtained from him at the time of borrowing Rs.10,000/-. On the side of the plaintiff PWs. 1 and 2 were examined and Exts.A1 to A4 were marked and on the side of the defendant DWs.1 and 2 were examined. 4. The plaintiff as PW1 tendered evidence in the suit. According to him, Ext.A1 promissory note was written in the handwriting of PW2 who was also present at the time when he advanced the amount to the defendant. Ext.A1 is the promissory note. Ext.A2 is a copy of the lawyer notice. PW2 was examined to prove the execution of Ext.A1 promissory note . PW2 tendered evidence stating that he was present at the time when -3- A.S.No.666/99 the defendant borrowed Rs.25,000/- from the plaintiff. I have gone through the oral evidence tendered by the respective parties and their witnesses. 5. In the testimony of DWs.1 on two occasions he admitted his signature in Ext.A1 promissory note. In the written statement he contended that Ext.A1 promissory note is a fabricated document. He also contended in the written statement that several stamped and unstamped papers were taken from him by the plaintiff. The materials on record does not show that the so called blank stamp papers were utilized by the plaintiff for any purpose. The only document produced is Ext.A1promissory note. That promissory note contains the signature of the defendant. The execution of Ext.A1 promissory note is proved by the oral evidence tendered by PWs.1 and 2. The oral evidence of DWs.1 and 2 does not inspire confidence of the court below. The oral evidence tendered by DW1 would go to show that he is trying to evade payment due to the plaintiff. The trial court did not examine the questions in the right perspective and the reasons -4- A.S.No.666/99 stated in paragraph 8 are unwarranted and does not stand to reasons. The trial court placed reliance on some facts stating that DW1 is a money lender. The trial court observed that in the present day we have noticed that the money lenders and firm of chitties obtain signatures in blank forms from the borrowers at the time of lending money which they used to fill up at their convenience. The oral evidence tendered by PWs.1 and 2 does not suffer from any infirmity. Their evidence is discarded by the learned Sub Judge for no good reasons. The learned Judge simply inferred that there was no possibility of the defendant borrowing Rs.25,000/- from the plaintiff. Another reason stated by the trial court is about the pendency of 7 suits filed by the plaintiff. I do not think that the reasons stated by the learned Sub Judge for non-suiting the plaintiff have any bearing on the facts of this case. The fact that the defendant did not dispute the signature in Ext.A1 promissory note coupled with the oral evidence adduced by the plaintiff as PW1 and his witness as PW2 is sufficient enough to hold that there was execution of -5- A.S.No.666/99 Ext.A1 promissory note and the transaction stands proved. Since it is admitted that the defendant had put his signature in Ext.A1 promissory note, undoubtedly it is for him to rebut the presumption that arises out of the transaction. There is no evidence at all adduced on the side of the defendant rebutting the presumption available to the plaintiff. I have already stated that the reason stated by the trial court for non-suiting the plaintiff is not sustainable in law. In the circumstances, the plaintiff is entitled to realise the amount covered by Ext.A1 promissory note. In the result, the appeal is allowed. The judgment and decree passed by the trial court is modified. The plaintiff is entitled to realise from the defendant and his assets a sum of Rs.27,690/- with interest at the rate of 9% from the date of suit till realisation with costs thereto. HARUN-UL-RASHID, JUDGE. kcv. -6- A.S.No.666/99 HARUN-UL-RASHID,J. -------------------------- A.S.NO.666 OF 1999 -------------------------- JUDGMENT 7th December, 2009