IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 AS.No. 503 of 1996(B) ------------------------------- [OS.NO.302/1986 OF II ADDL.SUB COURT,KOZHIKODE] .................... APPELLANTS/PLAINTIFFS: --------------------------------------- 1. K.K. UNNERIKUTTY, S/O. KANDAKUTTY, RESIDING IN “NANALI NAGAR”, KALLAI, PAYYANAKKAL, KOZHIKODE. 2. K.K. SAROJINI, D/O. KANDAKUTTY, PARADI VAYAL POST, CIVIL STATION, KOZHIKODE. 3. K.K. RADHA, D/O. KANDAKUTTY, “RAJEEV NIVAS”, MANANTODDY, REPRESENTED BY POWER OF ATTORNEY HOLDER JAYAPALAN, S/O. KUTTAN, KOLATHARA AMSOM, CHERUVANNOOR DESOM, KOZHIKODE. 4. K.K. SREEDHARAN, S/O. CHOYIKUTTY, NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 5. K.K. SANTHA, D/O. CHOYIKUTTY, RESIDING IN NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 6. K.K. DEVAYANI, D/O. CHOYIKUTTY, KASABA AMSOM DESOM, KOZHIKODE TALUK. 7. K.K. BHANUMATHY, D/O. CHOYIKUTTY, RESIDING IN MERRIKUNNU, KOZHIKODE. 8. K.K. SUMATHI, D/O. CHOYIKUTTY, RESIDING IN NELLIKODE AMSOM DESOM OF KOZHIKODE TALUK. 9. K.K. RAJENDRAN, S/O. CHOYIKUTTY, RESIDING IN KARAPARAMBA, KOZHIKODE, REPRESENTED BY POWER OF ATTORNEY HOLDER UDAYAVATHY, W/O. RAJENDRAN, RESIDING AT DO. DO. A.S. NO. 503/1996-B: 10. K.K. MINI, D/O. CHOYIKUTTY, RESIDING IN NELLIKODE AMSOM DESOM, KOZHIKODE TALUK. 11. K.P. LEELA, WIDOW OF K.K. PERACHUNNI, RESIDING IN ELATHUR VILLAGE, PUTHUR DESOM, KOZHIKODE TALUK. 12. K. SAJI, D/O. LATE K.K. PERACHUNNI, RESIDING AT DO. 13. K. SUJA, D/O. LATE K.K. PERACHUNNI, RESIDING AT DO. 14. K. SUJITH, S/O. LATE K.K. PERACHUNNI, RESIDING AT DO. 15. K. SUMA, D/O. LATE K.K. PERACHUNNI, RESIDING AT DO. BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR, SRI. K.S.BABU. RESPONDENTS/DEFENDANTS & 14TH PLAINTIFF: ------------------------------------------------------------------------ 1. K. BALAKRISHNA, S/O. KADASSERI RAMAN, RESIDING AT VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK. 2. SOUDAMINI, W/O. K.BALAKRISHNAN, RESIDING AT DO. DO. 3. K. THAMU ALIAS SAMI , S/O. CHANDUKUTTY, BEYPORE AMSOM, NADUVATTAM DESOM, KOZHIKODE TALUK. R1 & R2 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE, ADV. SMT.SUMATHI DANDAPANI. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN,J. ====================== A.S. No.503 OF 1996 & Cross Appeal ====================== Dated this the 29th day of June, 2010. JUDGMENT The appeal is preferred by the plaintiff dissatisfied with the decree granted by the Subordinate Judge's Court, Kozhikode and the cross appeal is filed by the defendant challenging the grant of a decree in favour of the plaintiff. The suit is one for realisation of the amount due under a promissory note. It is the case of the plaintiff that the defendants had borrowed a sum of Rs.40,000/- and had executed Ext.A2 promissory note on 1.4.1983 without undertaking to pay the amount with interest at the rate of 24% per annum. When the plaintiff contacted Advocate Shri.S.Krishnayyar for issuing a notice on 10.8.1986, he advised the plaintiff to meet the defendant and settle the matter for the reason that the defendant was also his client. Accordingly, the plaintiff approached the 1st defendant and the defendant went inside with the promissory note under the pretext of perusal and returned back the promissory A.S. No.503 OF 1996 & Cross Appeal 2 note to the plaintiff. The plaintiff was aged about 80 years old and he did not know what had transpired. When he came back home and scrutinised the promissory note he found two lines were drawn and in the promissory note it is recorded as cancelled. So, he approached the lawyer on 12.8.1986 (the very same lawyer) and issued notice to the defendants claiming the amount. Since the amount was not paid, the suit is instituted. 2. The defendants would contend that on 11.8.1986 the amount has been paid to the plaintiff and that is why it has been crossed and recorded as cancelled and handed over to the plaintiff. The plaintiff made a representation that he wants the promissory note for the purpose of income tax purpose and therefore, it has handed over to him. 3. The trial Court had appreciation of the evidence granted a partial decree in favour of the plaintiff disbelieving the case of defendant. Whatever amount was paid was adjusted towards the principal amount and A.S. No.503 OF 1996 & Cross Appeal 3 therefore a decree for Rs.9,500/- alone was granted in favour of the plaintiff. Thus aggrieved by the same, the plaintiff has come up in appeal and in the cross objection the defendant retained the contention of a total discharge on 11.8.1986. On a perusal of the documentary evidence and oral evidence in this case, the following factors emerge. PW1 is the Shri.S.Krishna Iyer Advocate. Admittedly, he has been a counsel for the plaintiff as well as the 1st defendant. Shri.S. Krishna Iyer, when examined would depose before the Court that the plaintiff had approached him on 10.8.1986 with the promissory note for the purpose of issuing a notice to the defendants. On that date, there was no cancellation of the promissory note. But as the 1st defendant was also a client of Shri.S. Krishna Iyer, he advised plaintiff to go and settle the matter. Accordingly, the plaintiff went to the house of defendant and on that day as stated above the defendant has cancelled the note and given it back to the plaintiff without making any A.S. No.503 OF 1996 & Cross Appeal 4 payment of the amount. The evidence of Shri. S.Krishna Iyer a Senior Advocate of the Kozhikode Bar having put 32 years of experience need not be disbelieved and if really the defendant has paid the amount to the plaintiff, he should not have handed over the promissory note to the plaintiff at all and therefore the case of plaintiff appears to be more probable and acceptable. It has to be remembered, when Krishna Iyer has issued a notice and if there was payment by defendant on 11.8.1986, certainly the defendant would not have kept Shri.S. Krishna Iyer as his lawyer in all other proceedings. He has also admitted that Shri.S. Krishna Iyer is a respectable man and he has got confidence in him and therefore, he continued to be the lawyer for the case. So the case of the plaintiff that the defendant had uncharitably on getting the promissory note for perusal cancelled without making payment as decided by court below has to be approved and therefore, that findings does not call for any interference. A.S. No.503 OF 1996 & Cross Appeal 5 4. Now the next question is regarding the decree, that is given to the plaintiff. When an amount is borrowed under promissory note and it is paid normally, the person receiving it would only first appropriate that amount towards the interest and not the principal. Because it can be seen that from the conduct of the parties as well that amounts were being paid on a monthly basis for a period of almost 21 months and that is Rs.10,500/- and Rs.10,000/- on 12.2.1985 and another Rs.10,000/- on 12.4.1985. A perusal of the calculation of the balance would show how the plaintiff had appropriated the amount paid by the defendant. The last payment made on 12.4.1985 is promoted towards the principal and therefore, as on 12.4.1985 an amount of Rs.27,044/- was due from the principal amount and interest calculated to the date of filing of the suit is Rs.10,260/- totaling Rs.37,304/-. So the principle amount outstanding on the date of the suit was Rs.27,044/- and therefore, the plaintiff is entitled to get A.S. No.503 OF 1996 & Cross Appeal 6 interest on that amount. Therefore, the contention of the plaintiff that the decree requires modifications has to be accepted and it has to be done accordingly. In the result, a revised decree is passed as follows:- Plaintiff is given a decree for realisation of Rs.37304/- with 6% interest on the sum of Rs.27,044/- from the date of suit till realisation from the defendants with proportionate costs. The cross appeal is unsustainable and hence dismissed. Parties are directed to bear their respective costs in the appeal as well as in the cross appeal. M.N.KRISHNAN, JUDGE. mns