IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RSA.No. 182 of 2009() --------------------- AS.178/2006 of I ADDL. DISTRICT COURT, PALAKKAD OS.363/2004 of MUNSIFF COURT, CHITTUR .................... APPELLANT/RESPONDENT/DEFENDANT: -------------------- NARAYANAN, S/O. PONNU, RESIDING AT VATTAKADU KOLUMBA, THATHAMANGALAM CHITTUR TALUK, PALAKKAD DIST. BY ADV. SRI.H.BADARUDDIN ADV. SMT.AYSHA RAHMAN RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- ARAVINDAKSHAN, S/O. APPU, AGRICULTURIST, RESIDING AT VIKKAPPURALAM, KARIPOD POST, PUDUNGARAM P.O., CHITTUR TALUK, PALAKKAD DIST. ADV. SRI.A.SREERAMAKRISHNAN ADV.SRI.A.INDUCHOODAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.182 of 2009 -------------------------------------- Dated this the 17th day of September, 2009. JUDGMENT This Second Appeal is brought from judgment and decree of learned Additional District Judge-I, Palakkad in A.S.No.178 of 2006 reversing dismissal of the suit as per judgment and decree in O.S.No.363 of 2004. Respondent sued the appellant for recovery of money based on a demand promissory note dated 10.8.1998. Demanding payment of the amount with interest, respondent issued Ext.A2, notice on 9.7.2004 but that was not replied. Nor was the amount paid. Hence respondent filed the suit on 15.9.2004 but claiming that in the meantime on 17.7.2001 appellant paid Rs.500/- in partial discharge of the liability and signed an endorsement to that effect on the demand promissory note itself. Appellant admitted that he had borrowed the amount from respondent but claimed that it was repaid in full in March, 2001. He denied that there was any acknowledgment or payment on 17.7.2001. Appellant contended that suit is barred by limitation. Respondent gave evidence as PW1 and proved Exts.A1 to A4. Appellant gave evidence as DW1. Learned Munsiff found that plea of part payment and acknowledgment on 17.7.2001 is not proved and hence the suit is barred by limitation. Accordingly suit was dismissed. Appellate court found in favour of the part payment and acknowledgment on 17.7.2001 and decreed the suit. That judgment and decree are under challenge in this appeal. Learned counsel contended that finding of the appellate court is perverse. RSA No.182/2009 2 2. It is not disputed that Ext.A1, demand promissory note was executed by the appellant in favour of respondent. Contention of appellant is that the entire amount was paid by March, 2001 but in that regard what is available is only evidence of appellant as DW1. He has not produced any document to prove discharge of liability in March, 2001. Therefore, contention regarding discharge of liability in March, 2001 was found against by both courts. So far as part payment and acknowledgment on 17.7.2001 is concerned, it is not disputed that there is an endorsement to that effect on Ext.A1, demand promissory note dated 10.8.1998. Learned Munsiff found that handwriting in the body of demand promissory note and endorsement differed and hence, it could not be relied. Appellate court from the evidence found that the demand promissory note as well as endorsement are in the handwriting of one Krishnan Nair who died on 23.4.2002 (as proved by Ext.A4) and hence he was not available for examination. Appellate court observed that some difference in the handwriting (of the same person) is quite possible since promissory note was written on 10.8.1998 and the endorsement was made on 17.7.2001. Appellate court found that there is no reason to disbelieve the evidence of PW1 regarding part payment as well as endorsement. Appellate court also took notice of the fact that inspite of the fact of part payment and acknowledgment of liability on 17.7.2001 being specifically mentioned in Ext.A2, notice dated 9.7.2004, appellant did not reply to it. That also was taken as a circumstance to corroborate the evidence of respondent as PW1. Learned counsel contends that there was no time for reply as the suit was filed immediately after notice. That RSA No.182/2009 3 contention cannot stand since Ext.A2, notice is dated 9.7.2004 and the suit was posted for appearance of appellant only on 15.9.2004, ie., after two months of the notice. That means, appellant had time to reply to Ext.A2, notice till he was served with summons in the case. Appellate court has considered the evidence and found in favour of the respondent. What is involved is only a finding of fact based on appreciation of the evidence which the appellate court has done taking into account the evidence and all other relevant facts and circumstances which I have stated above. No substantial question of law is involved. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks