IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 SA.No. 483 of 1999(G) --------------------- AS.20/1995 of SUB COURT, MUVATTUPUZHA OS.565/1991 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT(S): -------------------- EMMANUEL, S/O MATHAI, AGED 42 YEARS, KALLUPALATHINGAL HOUSE, AVOLY KARA, MUVATTUPUZHA VILLAGE BY ADV. SRI.V.M.KURIAN ADV. SRI. A.V.THOMAS ADV. SRI. MATHEW B KURIAN ADV. SRI. K.T.THOMAS RESPONDENT(S): ----------------------- 1. JOSEPH, S/O CHACKO, AGED ABOUT 75 YEARS, KARIMBANAKUZHIYIL HOUSE, AVOLY KARA, MUVATTUPUZHA VILLAGE. 2. MARIAKUTTY, D/O CHACKO, AGED ABOUT 52 YEARS, KARIMBANAKUZHIYIL HOUSE, AVOLY KARA, MUVATTUPUZHA VILLAGE. ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.483 OF 1999 -------------------------------- Dated this the 13th day of December 2010 JUDGMENT Plaintiff in a suit for money based on a promissory note is the appellant. Suit was decreed in his favour by the trial court accepting his case that the defendants are liable to pay the sum covered by Ext.A1 promissory note with interest and cost. However, in the appeal preferred by the defendants, reversing the decree of the trial court, the lower appellate court nonsuited the plaintiff. Feeling aggrieved, the plaintiff has preferred this appeal. 2. Some salient features involved in the case, over which there is no dispute, deserve to be taken note of at the threshold to consider the merit of the appeal. The first defendant is the sister of the second defendant and they are the neighbours of the plaintiff. Admittedly, a liability was outstanding from the defendants to a cooperative society for a sum of Rs.3,866/- and with the fund advanced by the plaintiff that liability was discharged. The case of the plaintiff was that Ext.A1 promissory note for Rs.4,000/- was executed and handed over, by both the defendants, in lieu of the funds provided to them to discharge of their liability with the cooperative society. Admittedly, the money S.A No.483 OF 1999 - 2 - transaction with the plaintiff and the receipt of funds from him to close the liability with the society, the defendants disputed the genuineness of Ext.A1 promissory note produced and pleaded of discharge. Amount collected from plaintiff was discharged by part payments and thereupon the draft of pronote prepared by the Secretary of Co-operative society and also the pronote were returned to them was the case of the defendants. Ext.B1 Promissory note, produced with the written statement, according to them, was the promissory note handed over to the plaintiff, which was later returned to them on discharge by payment. 2. The evidence in the case consisted of PW1 and PW2 and Exts.A1 and A2 for the plaintiff and DW1 and DW2 and Ext.B1 for the defendants. The trial court, on the materials placed, found the case of the plaintiff credible and trustworthy, and accordingly, negativing the challenges raised by the defendants, a decree was granted as prayed for in the suit. However, in the appeal filed by the defendants re-appreciating the materials tendered in the appeal, differing from the views taken by the trial court, the lower appellate court reversed the decree and non-suited the plaintiff. S.A No.483 OF 1999 - 3 - 3. Pending this appeal the second respondent had passed away. On default of the appellant to implead the legal heirs of the second respondent against the second respondent had been dismissed as abated. So much so, what survives for consideration now is the challenge over the dismissal of the suit as against the first respondent/first defendant alone. 4. I heard the counsel on both sides. The lower appellate court egregiously erred in interfering with the judgment rendered by the trial court and nonsuiting the plaintiff is the submission of the learned counsel for the appellant. Material evidence tendered in the case and also the proved facts and circumstances involved were overlooked by the lower appellate court is the grievance espoused by the learned counsel for the appellant contending that even the admissions of the first defendant, examined as DW1, which demonstrate that he had no regard for truth, was not taken into account and given due consideration by the lower appellate court when it interfered with the decree passed in favour of the plaintiff by the trial court. Per contra, the learned counsel for the first respondent contended that finding on facts, on the materials placed in the case, by the lower appellate court S.A No.483 OF 1999 - 4 - do not call for any interference as the appellant has failed to show that any substantial question of law is involved for consideration in the appeal. The lower appellate court being the last fact finding authority, its conclusions on the materials tendered have to be accepted as correct in the absence of any legal infirmity pointed out showing that its decision is improper and unjustifiable under law. 5. Having regard to the submissions made by the counsel on both sides, I have perused the judgments rendered by both the courts and also the records of the case. Strangely enough, it is seen, the lower appellate court has proceeded to examine the challenge raised in the appeal raising a point whether the defendants had borrowed the sum from the plaintiff by executing a promissory note, over which, admittedly, there was directly no dispute in the case. The defendants have conceded that they have executed a promissory note, but, according to them, it was Ext.B1 and not Ext.A1 produced in the case. The trial court, which had the opportunity to watch the demeanor and deportment of the witnesses, found the testimony of the plaintiff examined as PW1 credible and trustworthy and that of the first defendant S.A No.483 OF 1999 - 5 - examined as DW1 unworthy of any merit. In the given facts of the case, the cardinal question that required to be examined was whether the execution of Ext.A1 promissory note, which was denied by the defendants had been proved. Since the suit had been laid only on the basis of promissory note and not on the original cause of action as to money paid and received, the execution of Ext.A1 promissory note required to be proved despite the admission of liability by the defendant that they had executed a promissory note in favour of the plaintiff. Plaintiff examined PW2, the scribe who prepared the promissory note over and above leading evidence by exmining himself as PW1. Going through the evidence of plaintiff, PW1, it is seen, nothing worthmentioning has been brought out to discredit his testimony. Naturally, in the given facts of the case where the liability for the sum covered by Ext.A1 promissory note is conceded to, but, with a case that it was under a different note and not under Ext.A1, it was a case where more than the denial of execution of Ext.A1 a plea of discharge was raised to deny the decree canvassed by the plaintiff. When that be so, the evidence by the first defendant examined as DW1 who alone among the defendants was S.A No.483 OF 1999 - 6 - examined as a witness in the case has much significance. It is seen from his deposition that he had denied even his signature in the vakalath executed by him in favour of his counsel. It is further seen that he had denied his signature even in Ext.B1 promissory note, which according to the defendants was the pronote executed by them and later returned by the plaintiff on discharge of the amount due by part payments. He would further state that the signature of the second defendant seen in Ext.B1 pronote was not subscribed by his sister. His version over the plea of discharge, it is seen, was that the sum due to plaintiff was paid in five instalments. Ext.B1 produced by him does not contain any endorsement as to acceptance of any part payment by the plaintiff. There is also no endorsement or cancellation made in Ext.B1 indicating that the note had been cancelled on payment due. When that be the evidence tendered by the first defendant (DW1) it goes a long way in strengthening the case of the plaintiff that the amount was paid not under Ext.B1 but under Ext.A1 and the sum thereunder had not been discharged by the defendants. False plea taken by the defendants producing another instrument, Ext.B1, to dispute the genuineness and execution of Ext.A1, is a S.A No.483 OF 1999 - 7 - material circumstance discrediting the defense raised by them against the suit claim. In the given facts of the case, the conclusion formed by the trial court, which alone had the opportunity to watch the witnesses when they gave evidence, deserved acceptance unless, the materials tendered are so glaring to hold that there was an erroneous appreciation of evidence by that court. It is seen that the evidence of DW2, the Secretary of the Cooperative Society, would also indicate that the draft for preparing the promissory note was made by him and handed over to the parties when the liability to the society from the defendants was discharged with the fund advanced by the plaintiff. His version that he handed over only a draft and not prepared the original, Ext.A1, appears to be probable as it is seen from Ext.A1 that though he had been named as a witness, he had not subscribed his signature in the instrument. Though the plaintiff has given evidence as PW1 that Ext.A1 was written in the presence of the Secretary DW2, which was disowned by that witness, it cannot be viewed to doubt his case as a whole where the totality of the proved facts and circumstances lead to the conclusion that the defendants had executed Ext.A1 promissory S.A No.483 OF 1999 - 8 - note in favour of the plaintiffs and their case of discharge and also execution of another instrument Ext.B1 is totally bereft of any truth. Where it is shown that a promissory note was taken to secure the money paid to the defendants to discharge their liability, it is only safe to hold that if at all any part payment was made, defendants would have got acknowledgment on making such payment. No document was produced by them to show such part payments is yet another circumstance discrediting the version of the defendants as to discharge of the liability with the plaintiff. Cogent and convincing reasons given by the trial court in upholding the case of the plaintiff and granting him a decree in the suit, it is seen, were ignored by the lower appellate court, which had directed its inquiry on innocuous circumstances having no bearing on the material question involved in the case. Ext.A1 promissory note, it is seen, was proved by the evidence of PW1 and that being so, the burden shifted upon the defendants to substantiate their plea of discharge. Ext.B1 document, which was tendered by them to sustain that plea of discharge, deserved to be taken notice only for its rejection when the first defendant examined as DW1 disowned his signature in that instrument. S.A No.483 OF 1999 - 9 - Evidently, Ext.B1 was prepared falsely to counter the claim raised under Ext.A1. Though in the written statement, the defendants contended that Ext.B1 is produced with the draft of the note prepared by the Secretary, that draft was not produced or exhibited. Further, it does not stand to reason that if at all there was a draft, normally, that would not have been kept under safe custody by the plaintiff even after execution of the promissory note on the basis of such draft till discharge of the amount. Suffix to state the decree passed by the trial court as against the first defendant is liable to be restored, interfering with the decree of dismissal of the suit by the lower appellate court. Reversing the judgment of the lower appellate court, the suit claim as against the first defendant, as decreed by the trial court, is restored, with costs of the appellant from that defendant. Appeal is allowed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv