IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 SA.No. 114 of 1998(E) ------------------------------ (AS.NO.348/1996 OF SUB COURT, NEDUMANGAD, OS.NO.3/1993 OF PRINCIPAL MUNSIFF'S COURT,NEDUMANGAD) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- MANIKANTAN NAIR, S/O. SIVASANKARA PILLAI, KAVANAMPURATHU VEEDU, ARUVIKKARA VILLAGE. BY ADV. SRI.L.MOHANAN. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- BHUVANENDRAN NAIR, S/O. RAMAKRISHNAN PILLAI, MELE KAIPALLY VEEDU, KOKKOTHAMANGALAM MURI, ARUVIKKARA VILLAGE. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 114 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2010. JUDGMENT Plaintiff, who was non-suited by the Munsiff's Court, Nedumangad, and whose appeal was dismissed by the appellate court is the appellant before this court. 2. The facts fall within a narrow compass. The case of the plaintiff is that after executing Ext.A1 document, the defendant received a sum of Rs.16,325/- from the plaintiff on 20.6.1990. It is claimed that on 20.10.1992 a sum of Rs.2000/- was received from the defendant, which was endorsed on the reverse of Ext.A1. Inspite of repeated demands, balance amount was not paid. Therefore a notice was sent to the defendant calling upon him to pay the balance amount. That had no impact on him. Hence the suit was laid. 3. The defendant entered appearance and contested the suit. He denied the transaction and S.A.114/1998. 2 pointed out that he had not executed Ext.A1 document as alleged in the plaint. According to him, the plaintiff was running a chitty business and he had subscribed to the chitty and in connection with that transaction he had signed certain blank sheets and hand it over to the plaintiff. The amount due to the plaintiff towards that chitty transaction was paid but the papers were not returned to him. He would allege that one of such papers has been misused by the plaintiff. He therefore prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined himself as D.W.1. The trial court on an appreciation of the evidence found that the evidence regarding passing of consideration is not convincing enough and accordingly dismissed the suit. The lower appellate court concurred with the conclusion of the trial court. S.A.114/1998. 3 5. The following substantial questions of law are seen raised in the Memorandum of Second Appeal: “i) It is not illegal in holding Ext.A1 as a promissory note when it does not contain an unconditional undertaking to pay but only a statement that the executant will settle the transaction and close the debt account and when he signs it as an agreement? ii) It is not illegal in considering the admissibility of a document at a later stage of the suit when the document was admitted into evidence without any objection earlier? iii) Is it not illegal in not granting a decree on original cause of action even if the document is found invalid?”. 6. Learned counsel appearing for the appellant pointed out that it was not on the basis of Ext.A1 promissory note that the suit was laid. It is clear from the plaint that it was on the original cause of action that the suit had been filed and Ext.A1 had been produced only as an item of evidence. Learned counsel also pointed out that the courts below were not justified in holding that there was S.A.114/1998. 4 inconsistencies and contradictions in the evidence of P.Ws. 1 to 3 regarding payment under Ext.A1. Attention was drawn to the fact that the defendant had admitted his signature on Ext.A1 as well as on its reverse. There was no reason or justification in disbelieving P.Ws. 1 to 3, who had spoken about the transaction. Learned counsel would point out that the courts below have misdirected themselves on facts and in law and therefore the decrees are unsustainable in law. 7. One has to notice that there is a concurrent finding of fact against the plaintiff. Normally, this court will be very reluctant to interfere with the finding of fact entered into by two courts. A reading of the plaint shows that the suit was not based on Ext.A1 document. It is very clear from the plaint that the case of the plaintiff was that the defendant had received Rs.16,325/- and for that purpose executed Ext.A1 document. So much of the discussion by the trial court regarding the nature of Ext.A1 document was unnecessary and uncalled for. As rightly noticed by the trial court, the question that arose for consideration was whether S.A.114/1998. 5 Ext.A1 contains the signature of the defendant and whether he did receive the amount as alleged in the plaint. 8. P.W.1 had given evidence and stood by his case. He speaks about the payment of Rs.16,325/- to the defendant and about the execution of Ext.A1 by the defendant. It is true that at the time of evidence, he pointed out that he had paid Rs.325/- earlier and paid Rs.16,000/- on the date on which Ext.A1 was executed. He has also stated that on 20.10.1992 a sum of Rs.2000/- was returned towards the debt and that was endorsed on the reverse of Ext.A1 document. He examined P.Ws.2 and 3 to substantiate his receipt. Both P.Ws. 2 and 3, who are the scribe and attestor of Ext.A1, have stated about the payment as well as the issuance of receipt to the defendant. Both the courts below have observed that there are serious contradictions and inconsistencies in the evidence of P.Ws.1 to 3. This court is taken through the entire evidence by the learned counsel for the appellants. This court was unable to find such inconsistencies and contradictions to make the claim of the S.A.114/1998. 6 plaintiff open to serious suspicion or doubt. Of course there are minor contradictions, i.e. the places where the document was executed and the persons who signed etc. But P.Ws. 1 to 3 do say that the document contained the signature of defendant and they had seen the payment of amount to him. It is true that P.W.2 would say that there was chitty transaction between the plaintiff and the defendant which in fact is denied by the plaintiff. To that extent, one could say that there is some contradiction, but that has nothing to do with the transaction involved in the suit. On material aspects, there is considerable corroboration from the evidence of P.Ws. 2 and 3. 9. It is to be noticed that the defendant has in the first instance admitted his signature in Ext.A1 and on the reverse side. His case was that the plaintiff was running a chitty transaction and he was subscribed to one of the chitties. For that transaction, according to him, he had given several blank signed papers to the plaintiff and one of such papers have been misused. P.W.1 in his cross examination S.A.114/1998. 7 deposed that he never had chitty business and that the defendant was not a subscriber to any of the chitties run by him. In the light of the definite stand taken by the plaintiff, the burden is on the defendant to establish his claim that the plaintiff was running chitty transaction and he subscribed to the chitty. There is no such attempt from the side of the defendant. He rested by saying that he was a subscriber to one of the chitties and with respect to that he had given signed blank sheets. 10. There is yet another aspect. The defendant had admitted that he had received notice issued by the plaintiff. If that be so, and if the claim of the plaintiff is untrue, one would have expected the defendant to reply. The reason given for not replying is not acceptable at all. 11. Both the courts below, except for saying that there are serious contradictions in the evidence of P.Ws. 2 and 3, does not point out the socalled contradictions or inconsistencies, which affect the veracity of the testimony of the witnesses. Of course there will be minor inconsistencies S.A.114/1998. 8 and contradictions. But the issue is whether that is sufficient to accept the version given by the defendant. 12. After going through the records, this court is unable to find serious contradictions in the evidence of P.Ws. 2 and 3. The defendant was unable to offer any satisfactory explanation for his signature found on Ext.A1 and on its reverse. He would also say that he had borrowed a sum of Rs.5000/- from the plaintiff and had returned the same, but the plaintiff had not returned the documents at the time of receiving that amount. But apart from the interested version of defendant, there is no other evidence. 13. It does not appear that the courts below were justified in dismissing the suit. But from the available records, it is clear that the plaintiff has established his case and he is entitled to a decree. In the result, this appeal is allowed and the judgments and decrees of the courts below are set aside and a decree is passed as follows: S.A.114/1998. 9 The plaintiff is entitled to recover a sum of Rs.15,000/- with 6% interest from the date of suit till realization personally from the defendant and his assets. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.