IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 A.S.No. 157 of 1996 -------------------------------- OS.232/1991 of SUB COURT, CHERTHALA .................... APPELLANT/SECOND DEFENDANT: STANLY JOSE, S/O PETER @ CHANGIKUTTY RESIDING AT KARUMANCHARRY NEENDAKARA, EZHUPUNNA THEKKUM MURI THURAVOOR VADAKKU VILLAGE (Recorded as legal heir) (NOW KODAMTHURUTHU VILLAGE) (Appellant in the appeal is recorded as one of the legal heirs of the deceased 2nd respondent as per order dated 16-7-2009 in CMP 1906/96) BY SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT/PLAINTIFF AND DEFENDANT 1: 1. MANUAL RESIDING AT MATTAMMAL CHANDIROOR MURI, AROOR VILLAGE (DIED) 2. PETER @ CHANGIKUTTY RESIDING AT KARUMANCHARRY NEENDAKARA, EZHUPUNNA THEKKUM MURI THURAVOOR VADAKKU VILLAGE (NOW KODAMTHURUTHU VILLAGE) Addl. R3. K.P.KOSHI S/O PETER @ CHANGIKUTTY RESIDING AT KARUMANCHARRY NEENDAKARA, EZHUPUNNA THEKKUM MURI, THURAVOOR VADAKKU VILLAGE (One of the legal heirs of deceased 2nd respondent is impleaded as Additional respondent No.3 as per order dated 16-7-09 in CMP 1906/96) Addl. R4. ARYA ELIZEBETH, MATTAMMAL,CHANDIROOR, AROOR.P.O., SHERTALLAI Addl. R5. SABU, SON OF MANUAL, - DO - Addl. R6. BINU, -DO - , -DO- Addl. R7. RENNY, - DO - , - DO - Addl. R8. BEENA, D/O. - DO - - DO - (Additional respondents 4 to 8 are impleaded as per order dated 16-7-09 in CMP 2494/97) ADV. SRI.M.P.ASHOK KUMAR SRI.S.P.ARAVINDAKSHAN PILLAY THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 22/07/2009, ALONG WITH AS NO. 169 OF 1996, THE COURT ON 22/07/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.157 & 169 OF 1996 - B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2009 JUDGMENT Basheer, J: These two appeals are at the instance of the two defendants in a suit for realisation of money on the strength of a promissory note. 2. The court below accepted the case of the plaintiff and decreed the suit as prayed for, directing the defendants (father and son) to pay a sum of Rs.2,27,942/- with 6% interest thereon from the date of suit till realisation. The said decree and judgment are under challenge in these two appeals. 3. The case of the respondent/ plaintiff in brief was that the defendants had borrowed a total sum of Rs.2,05,000/- on several occasions in connection with “the business of prawn fishing”. Defendants executed Ext.A1, promissory note dated, December 19, 1989 for the outstanding sum of Rs.2,05,000/- undertaking to pay the same with 6% interest on demand. But since the defendants did not discharge the above liability as promised, the plaintiff issued Ext.A2 lawyer notice in September, 1991. Defendants did not choose to send any reply to the same; nor did they discharge the liability. Hence the suit. 4. Defendants filed separate written statements. In his written statement, defendant No.1 contended that he had not executed any A.S.No.157 & 169 OF 1996 - B :: 2 :: promissory note as alleged in the plaint. It was further contended by him that he had had no business transaction with the plaintiff. He was laid up with rheumatism for the last several years. His son, defendant No.2, had been looking after his affairs. His son had obtained several signed papers from him for certain purposes. It was further contended by defendant No.1 that if the plaintiff and defendant No.2 had fabricated any document using the signed blank papers, such a document would not be binding on him. 5. Defendant No.2 in his written statement admitted execution of the promissory note. It was further admitted by him that he had had business transaction with the plaintiff. According to defendant No.2, he had obtained the right of fishing from Chellanam Neendakara padasekharam during the relevant period and he used to supply fish to the plaintiff in the course of their business transactions. But according to him, he was liable to pay only Rs.5,000/- to the plaintiff when the accounts were settled. While conceding that Ext.A1 promissory note was executed by him in favour of the plaintiff, it was contended that the plaintiff had not paid Rs.2,00,000/- at the time of execution of the promissory note. Defendant contended that he was liable to pay only Rs.5,000/- and therefore prayed for dismissal of the suit. 6. Before the trial court, the plaintiff got himself examined as PW1. PW2 who was stated to be a witness to Ext.A1 promissory note was also A.S.No.157 & 169 OF 1996 - B :: 3 :: examined on his side. Exts.A2 to A3 were also produced by the plaintiff in the case apart from Ext.A1. The defendants were examined as DWs1 and 2. However, there was no documentary evidence on the side of the defendants. 7. The court below, while considering the issue as to whether the promissory note was supported by consideration, noticed that the defendants did not have a case that they had had no business transaction with the plaintiffs as claimed in the plaint. More importantly in his chief examination itself defendant No.2 who was examined as DW1 in the case, candidly admitted that he had executed the promissory note in favour of the plaintiff. It was further conceded by him that the said promissory note was for a sum of Rs.2,05,000/-. It was also admitted by him that the said sum included Rs.5,000/- which he owed to the plaintiff earlier. But according to DW1, the plaintiff did not pay him Rs.2,00,000/- though the promissory note was executed by him. In short, defendant No.2 not only conceded the business transaction between him and plaintiff but also explicitly and candidly admitted execution of the promissory note. There was also no dispute with regard to the amount indicated in Ext.A1 promissory note. 8. One contention raised by defendant No.2 before the court below was that the plaintiff had not produced the accounts in relation to the A.S.No.157 & 169 OF 1996 - B :: 4 :: business transaction between the two. But the plaintiff had explained that after settling the accounts between him and the defendants he had not bothered to keep the accounts with him. The above explanation was found to be plausible and reasonable by the court below. It was further noticed by the court below that the defendants had not taken any steps against the plaintiff to get the promissory note revoked or cancelled, if in fact they hade not received the amount covered under the said promissory note as alleged by them. 9. The promissory note was admittedly executed in the year 1989. The suit was instituted in the year 1991. Before the institution of the suit, plaintiff had issued Ext.A2 lawyer notice to which defendants did not choose to send any reply. Even assuming that the defendants could not take any steps to get the promissory note revoked in the course of two years, they could have atleast sent a reply denying the liability to pay the amount covered under the promissory note. All these circumstances persuaded the court below, in our view rightly to hold that the contention raised by the defendants cannot be sustained. 10. We have carefully perused the promissory note and considered the pleadings of the parties in the case. In our view, the court below was justified in granting a decree in favour of the plaintiff. It is true that defendant No.1 had raised a contention that he had not executed the A.S.No.157 & 169 OF 1996 - B :: 5 :: promissory note. But PW2 the witness to Ext.A1 promissory note had corroborated the case of the plaintiff. Moreover, as could be seen from the evidence on record, defendant No.1 and 2, father and son, had been living under the same roof. Though defendant No.1 had contended that he had handed over several blank papers to his son for certain purposes, it was not explained by him as to what those “purposes” were. There was also not even a suggestion that his son had fabricated the document in order to cause loss to him. His only contention was that he was bed ridden with rheumatism and therefore his affairs were being looked after by his son. Having considered the entire facts and circumstances of the case and having perused the evidence available on record, we do not find any illegality in the impugned decree and judgment. There is no merit in any of the contentions raised by the appellants. Appeals fail and they are accordingly dismissed with costs. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes A.S.No.157 & 169 OF 1996 - B :: 6 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.157 & 169 OF 1996 - B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 22nd July, 2009