IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 AS.No. 211 of 1996() -------------------- OS.356/1990 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT: DEFENDANT ------------------------------------ V.K.PURUSHOTHAMAN S/O KRISHNAN, VELIYIL HOUSE CHARAMANGALAM MURI THANNEERMUKKOM THEKKU VILLAGE CHERTHALA TALUK BY ADV. SRI.V.L.SHENOY RESPONDENT: PLAINTIFF ------------------------------------- P.A.SIVAN NAIR, S/O KRISHNAN NAIR, RESIDING AT SAROJA BHAVAN ULLALAKKARA, THALAYAZHAM VILLAGE VAIKKOM ADV. SRI.V.V.ASOKAN,K.I.MAYANKUTTY MATHER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO.4397 OF 1996 IN A.S. 211 OF 1996 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 7.9.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 211 of 1996 ---------------------------------------- Dated this the 1st day of August, 2009 JUDGMENT This appeal is directed against the judgment and decree in O.S. No. 356/1990 on the file of the Sub Court, Kottayam. The suit for realisation of money was decreed with costs. The sum decreed is Rs. 68,000/- with future interest at the rate of 12% on the principal sum of Rs.50,000/- from the date of suit till realisation. Aggrieved by the judgment and decree passed by the trial court, the defendant has come up in appeal before this court. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The plaintiff filed the suit alleging that on 26.5.1987 the defendant borrowed a sum of Rs. 50,000/- from the plaintiff and executed Ext.A1promissory note agreeing to repay the said amount on demand with 12% interest. Even after repeated requests the defendant failed to repay the money. So the plaintiff issued a lawyer notice dated 9.1.1989 demanding repayment of the said amount. Even after, no amount was paid. Hence the suit. 3. The defendant in the written statement interalia contended that he never received any amount from the plaintiff, that he is not aware of the promissory note relied on by the plaintiff affixed with 20 paise revenue stamp or additional stamps, that the suit was filed based on a concocted A.S. No.211 of 1996 -2- promissory note for Rs.50,000/- using signed and stamped papers secured from the defendant, when his brother Sri.K.V.Ramanan availed a loan from one Chandrasekharan Nair who is the brother-in-law of the plaintiff. The defendant also contended that the plaintiff has no cause of action and the trial court has no territorial jurisdiction to entertain the suit. 4. The trial court examined the issues on the basis of the oral and documentary evidence viz. PW1, DW1 and Exts A1 and A2. 5. After examining the question of territorial jurisdiction, the trial court held that since the cause of action had arisen within the territorial jurisdiction, it can entertain the suit 6. The trial court also elaborately considered the questions whether the said promissory note was executed by the defendant and whether it is supported by consideration or not. 7. The defendant admitted his signature in Ext.A1 promissory note in the written statement, but in chief examination,he disputed his own signature and the execution of the said promissory note. According to him his brother Ramanan had money transaction with one Chandrasekharan Nair (the brother-in-law of the plaintiff) and that the said Chandrasekharan Nair had obtained the signature of the defendant and A.S. No.211 of 1996 -3- his brother Remanan on blank stamped papers . He also raised a contention that Ext.A1 promissory note was fabricated by the plaintiff by utilisiing one of the blank stamped and signed papers obtained at the time of giving loan to his brother Ramanan by the said Chandrasekharan Nair. . Eventhough he contended that Ext.A1 promissory note is a concocted document, he failed to adduce any evidence in support of the said contention. In order to substantiate the above contentions , the defendant ought to have examined his brother Ramanan and Chandrasekharan Nair. But the defendant has not taken any initiative to examine his brother and the said Chandrasekharan Nair. He must at least prove that the blank stamped and signed papers had been handed over by himself to the Chandrasekharan Nair who is the brother-in-law of the plaintiff. Unless and until there is no proof regarding that, it cannot be presumed that the defendant's blank stamped and signed papers were illegally kept by the plaintiff. Admittedly the plaintiff and defendant are strangers to each other and there was no previous money transaction between the plaintiff and the defendant. In such circumstances the trial court held that the defence set up by the defendant cannot be believed. While examining the defendant as DW1 he had testified that he had not seen Ext.A1 promissory note and that he had no idea as to whether he had put his signature in a blank stamped paper or not . The trial court also noted the conduct of the defendant after he received the lawyer A.S. No.211 of 1996 -4- notice. It is true that the defendant has not cared to reply to the lawyer notice sent by the plaintiff demanding repayment of Rs.50,000/- plus interest, instead, he contended that he has not executed Ext.A1 promissory note. In the course of examination the trial court also noted the fact that DW1 has no consistent case and held that the inconsistency stand shows the sign of falsehood. After examining the evidence, facts, and attendant circumstances the trial court concluded that the plaintiff has succeeded in proving the execution of Ext.A1 promissory note. On an examination of the entire oral and documentary evidence, I am also of the view that Ext.A1 is a promissory note executed by the defendant in favour of the plaintiff and that it is supported by consideration. I do not find any reason to interfere with the findings entered by the trial court on the basis of oral and documentary evidence adduced by the respective parties. In the result, this Appeal Suit fails and accordingly dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No.211 of 1996 ---------------------------- JUDGMENT 7th September, 2009