IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 AS.No. 276 of 2000(A) --------------------------- OS.1433/1994 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S)/PLAINTIFF ------------------------------- ANTO, S/O. PUVVUTHINGAL PYLOTH, AGED 44 YEARS, RESIDING AT VIYUR VILLAGE AND DESOM, THRISSUR TALUK. BY ADVS. SRI.JIJO PAUL SRI. BABU S. NAIR RESPONDENT(S)DEFENDANTS ----------------------------------- 1. LAKSHMIKUTTY, W/O.LATE NARAYANAN, KOLAZHI VILLAGE AND DESOM, THRISSUR TALUK. 2. VIJAYAN, S/O. LATE NARAYANAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. 3. SANTHA, D/O. LATE NARAYANAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. 4. SAVITHRI, D/O.LATE NARAYANAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. 5. OMANA, W/O.VELAYUDHAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. 6. SUJATHA, D/O.VELAYUDHAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. 7. SUBHASH, S/O.VELAYUDHAN, KOLASHI VILLAGE AND DESOM, THRISSUR TALUK. THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 276 OF 2000 = = = = = = = = = = = = = = = Dated this the 19th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.1433/94. The suit is one for realisation of the amount due under a promissory note. It is the case of the plaintiff that the first defendant had borrowed a sum of Rs.45,000/- and had executed a promissory note and in spite of demand the amount has not been given, hence the suit. The sole defendant died and his legal representatives are impleaded as supplemental D2 to D6. The contention of the contesting defendants are to the effect that the first defendant has not borrowed any amount. The plaintiff has brought two ladies for the purpose A.S. 276 OF 2000 -2- of accommodation and the first defendant granted them accommodation. They wanted an amount of Rs.5,000/- and the plaintiff had given to them at the instance of the defendant and at that time the plaintiff had taken blank signed papers and it is making use of the same the suit has been filed. 2. In the trial court PW1 and DWs.1 to 3 were examined and Exts.A1 to A4, B1 and X1 to X4 were marked. On an analysis of the materials the trial court dismissed the suit. The trial court felt that the promissory note is not properly proved. The Court also found that the signature overlaps partly on the revenue stamp. It is the opinion of the trial court that “So at the first blush, it would appear that the person who signed the instrument has not written the body of the promissory note.” When there is a A.S. 276 OF 2000 -3- specific denial of the execution of the promissory note it was imperative on the part of the plaintiff to adduce satisfactory evidence before the trial court. The Court also found that the two ladies namely Omana and Nalini who were alleged to be the persons had not been examined at all. The Court further held that it is the case of the plaintiff that he had withdrawn the amount from the savings bank account and from the Bank it can be seen that the plaintiff had savings bank account No.1258 with South Indian Bank, Viyyur Branch. The pass book shows that he had only a balance of Rs.163/- on 10.3.93 and on 1.7.93 also the same amount. But it was argued that the plaintiff had taken a loan from the Bank on 18.6.93 and therefore the source is proved. The trial court has held that he had borrowed a sum of A.S. 276 OF 2000 -4- Rs.50,000/- for a specific purpose with a stipulation to pay interest at the rate of 18.5% to the Bank. Under ordinary circumstances a person who had borrowed an amount at the rate of 18.5.% interest is not expected to disburse that amount to another person at the rate of 10%. It cannot be so especially when the plaintiff is a money lender. The Court below also looked into the account of the Viyyur Service Co-operative Bank ltd where also the balance amount on his account was Rs.3,795/-. So the S.B.Account, the loan account and the co-operative society account all would reveal that the plaintiff did not have a bank balance of Rs.45,000/- to advance the amount. It becomes important for the reason that it is the specific case of the plaintiff that he had withdrawn the amount from the Bank and advanced it as loan. So in the A.S. 276 OF 2000 -5- absence of any evidence to prove the execution of Ext.A1 and the surrounding circumstances such as absence of amount in the S.B. account etc. would lead to only one conclusion that the plaintiff has not succeeded in proving that the first defendant had executed a promissory note and borrowed a sum of Rs.45,000/-. I do not find any ground to entertain this appeal. Therefore the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 276 OF 2000 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.276 OF 2000 = = = = = = = = = = = J U D G M E N T 19th October, 2010.