IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 AS.No. 657 of 1999(D) & Cross-Appeal --------------------- OS.988/1993 of ADDL.SUB COURT, KOTTAYAM .................... APPELLANT(S): DEFENDANTS -------------- 1. K.P. JOHN, S/O. PHILIP, RESIDING AT KOOTTIYANICKAL HOUSE, ELAMPALLY KARA, ANICKADU VILLAGE. 2. ANNAMMA JOHN, W/O. JOHN, DO. DO. BY ADV. SMT.I.SHEELA DEVI SMT.REJI RAMACHANDRAN SMT.MINI K.D. RESPONDENT(S): PLAINTIFF --------------- M/S. ULLATTIL FINANCIERS, HAVING ITS OFFICE AT T.B.ROAD, KOTTAYAM, REP. BY ITS MANAGING PARTNER ISSAC THOMAS (JR.) , S/O. ISSAC THOMAS, RESIDING AT ULLATTIL HOSUE, PUTHENANGADI, KOTTAYAM KARA, DO. VILLAGE. SRI.V.G.ARUN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 657 of 1999 and Cross Appeal -------------------------------------- Dated: AUGUST 20, 2009 JUDGMENT The defendants are the appellants. The respondent/plaintiff filed O.S.988/1993 before the Addl. Sub Court, Kottayam, for realisation of money due under a promissory note Ext.A1 dated 30.3.1983 allegedly executed by the appellants/defendants in favour of the plaintiff and also on the basis of a mortgage by deposit of title deeds. The lower court decreed the suit with costs and future interest at the rate of 6% per annum. The defendant filed cross-appeal challenging the judgment of the lower court awarding interest at the rate of 6% per annum and claiming interest at the rate of 18% per annum. 2. The case of the respondent/plaintiff as stated in the plaint and as testified by PW.1, the managing partner of the respondent firm before the lower court was that the appellants borrowed Rs.10,000/- from the plaintiff firm on March 30, 1983 for which they executed a promissory note Ext.A1 on the same day agreeing to repay the same with interest, that on March 31, 1983 the 2nd appellant handed over the original of the title deed A.S. 657 of 1999 2 of their property mentioned in the plaint schedule with intent to create security to the loan taken and that as the appellants/defendants failed to repay the amount, the plaintiff firm filed the suit for realisation of the amount with interest at 18% per annum. 3. The appellants/defendants in their written statement contended that they did not borrow any amount on March 30, 1983, that they did not execute any promissory note nor handed over to the plaintiff firm the memorandum of title deed, that on March 30, 1981 the 1st appellant had withdrawn Rs.10,000/- from the plaintiff firm as an overdraft with a facility to repay the amount at the rate of Rs.600/- per week, that the plaintiff obtained the signature of the 1st defendant in some blank papers, that subsequently the 1st defendant paid Rs.3050/- and he remitted Rs.9375/- in 19 instalments and utilising the signed blank papers, the plaintiff might have created Ext.A1. 4. The managing partner of the plaintiff firm was examined as PW.1 and he produced Exts.A1 to A5 before lower court. On the side of the appellants/defendants, Dws.1 and 2 were examined and Exts.B1 to B2(a) were marked before the lower court. The lower court on an appreciation of evidence found A.S. 657 of 1999 3 that the defendants have borrowed Rs.10,000/- from the plaintiff firm as alleged by the plaintiff and rejecting the contentions of the defendants, decreed the suit as prayed for. Now the defendants have come up in appeal. The plaintiff has filed a cross appeal challenging the judgment of the lower court regarding award of interest at the rate of 6% per annum. 5. The learned counsel appearing for the appellants/defendants argued that the lower court should have found that Ext.A1 promissory note was not executed by the defendants, that even if it is found that the promissory note was executed by defendants on March 30, 1983, as the suit was filed only in 1993, the claim of the plaintiff is time barred. 6. Learned counsel for the respondent pointed out that as the appellants have admitted their signatures inExt.A1 and the receipt of Rs.10,000/-, the lower court is justified in decreeing the suit as prayed for and that as the plaint claim is a commercial transaction, the lower court should have awarded interest at the rate of 18% per annum. 7. Now the main question which arises for consideration is whether the finding of the lower court that Ext.A1 was executed by the defendants and decreeing the suit can be sustained? In A.S. 657 of 1999 4 the cross appeal the question is whether the awarding of future interest at the rate of 12% per annum from the date of suit till realisation is sustainable?. 8. The managing partner of the plaintiff firm was examined as PW.1 and he produced Exts.A1 to A5 before lower court. Ext.A1 is a demand promissory note for Rs.10,000/- allegedly executed by the defendants on March 30, 1983. Exts.A2 and A3 are the sale deed and the memorandum of title deeds of the plaint schedule properties belonging to the plaintiff. Exts.A4 and A5 are receipts. The plaintiff as PW.1 testified in terms of the plaint before the lower court. Nothing was brought out in his cross-examination to discredit his evidence. His evidence is supported by Exts.A1 to A5. On the other hand, the defendants have failed to prove that there was an agreement to adjust the chitty amount towards the loan in question. The learned counsel for the appellants submitted that there was no connection with the chitty transaction to the transaction in question. I have gone through the evidence of Pws.1 and 2. I find no reason to disbelieve the evidence of PW.1 on this aspect. At the same time no document is produced by the defendants to show that there was an agreement to adjust the chitty amount A.S. 657 of 1999 5 towards the amount due under the loan transaction. 9. Taking into consideration all these aspects and in the circumstances of the case, I am of the view that the lower court is justified in accepting the evidence of PW.1 and holding that the appellants borrowed Rs.10,000/- from the plaintiff firm on March 30, 1983 for which they executed a promissory note Ext.A1 dated March 31, 1983 and that in spite of repeated demands, the appellants/defendants did not repay the amount. That being so, the judgment and decree of the lower court under appeal has to be confirmed. As regards future interest, as there is no evidence to show that the transaction was a commercial transaction, the lower court is justified in awarding future interest only at 6% per annum. Therefore, the appeal as well as the cross appeal have to be dismissed. In the result the appeal and the cross appeal are dismissed. The decree of the lower court is confirmed. The respondent/plaintiff is entitled to costs throughout. P.Q. BARKATH ALI, JUDGE mt/-