IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 RSA.No. 333 of 2008() ------------------------- AS.203/2004 of II ADDL. DISTRICT COURT, PALAKKAD OS.145/2003 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS: APPELLANTS/PETITIONER --------------------------------------------- 1. V.K.SAIDALIKUTTY, S/O. V.S. KHALID, RESIDING AT 28/7 PEZHUMKARA, PALLIPPURAM POST PALAKKAD. 2. V.S. KHALID,S/O. SAIDALI, RESIDING AT 28/7 PEZHUMKARA, PALLIPPURAM POST PALAKKAD. 3. K.P.UUNIKRISHANAN,S/O. KOTHA RESIDING AT WEST YAKKARA, YAKKARA POST, PALAKKAD BY ADV. SRI.V.CHITAMBARESH (SR.ADVOCATE) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- M/S.THE VENUGOPAL COMPANY REPRESENTED BY ITS MANAGING PARTNER, ANDIMADOM JUNCTION, MALAMPUZHA ROAD, KADUKKAMKUNNAM AMSOM, AKATHETHARA, PALAKKAD TALUK BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------- R.S.A. No 333 of 2008 --------------------------------------------------------- Dated this the 17th June 2008 JUDGMENT The defendants in O.S. No 145 of 2003 on the file of the Munsiff's Court, Palakkad who have suffered decree concurrently both in the trial court as also in the appellate court are the appellants in this R.S.A. The plaintiff is the respondent. The respondent filed O.S.No 145 of 2003 aforesaid for a decree for recovery of money on the strength of a promissory note alleging that defendants owed Rs 30,000/- to the plaintiff-firm and executed a joint promissory note on 15.06.2002 undertaking to pay the money on demand with interest at 24% per annum and despite demand and even demand made through lawyer notice, defendants have not paid up the amount and prayed for a decree for realisation of Rs 35,010/- with future interest. 2. The defendants resisted the suit by filing written statement denying execution of pro note. They admitted however that they received notices from the plaintiff but stated that they have issued reply to the plaintiff denying their liability. According to them, the plaintiff had obtained a blank promissory note signed from them when they RSA 333/08 2 dishonoured the prize amount in the kuri to Abdul Razaq the brother of the first defendant who was a prized subscriber in the kuri conducted by the plaintiff. The blank pro note was so executed as demanded by the plaintiff as security on receipt of the prize amount by the brother of the first defendant. They further contended that the suit is not maintainable as plaintiff is not a registered partnership firm and further that the plaintiff has no money lending license. 3. The trial court raised necessary issues for trial and considering the case in the light of the above pleadings and the evidence adduced at trial which consisted of oral evidence of P.Ws 1 and 2 and D.Ws 1 and 2 and documentary evidence, Exts A1 to A7, Ext B1 and Exts X1 to X3 decreed the suit as prayed for, in relation to the amount covered by the pro note with interest thereon at the rate of 18% per annum till date of suit and thereafter at 6% per annum till realisation and costs of the suit. Aggrieved by the decree, defendants filed appeal and the first appellate court dismissed the appeal confirming the correctness of the judgment and decree passed by the trial court. Hence this R.S.A by the defendants. 4. It is vehemently contended before me by the learned counsel for the appellants that other than producing Ext A1 pro note there is RSA 333/08 3 nothing in evidence to show that Rs 30,000/- was advanced as alleged and further that Ext A1 was being given signed in the form of a blank pro note and it was unauthorisedly being filled up by the plaintiff to institute the suit for realisation of amounts from the defendants when actually Ext A1 proforma of a pro note was being got executed from defendants 1 to 3 by way of security at the time of disbursement of the amounts to the brother of the first defendant towards prize amount in kuri wherein he was the subscriber. The contentions so advanced are all contentions which were urged before the trial court as also before the first appellate court and repelled concurrently by both the courts. It is worthy to note that the case of the appellants is that Abdul Razaq, brother of the first defendant was a subscriber for the kuri run by the plaintiff and Ext A1 pro note in the form of proforma of a pro note was being got signed from the first defendant; his father, the second defendant and also by the third defendant. Strangely enough Abdul Razaq was not examined as a witness in the case. There is no evidence forthcoming or attempted to be let in to show that Abdul Razaq was a subscriber for the kuri run by the plaintiff and that he was a prized subscriber for the kuri. Unless those aspects are established it is futile for the appellants to RSA 333/08 4 contend that Ext A1 wasa blank proforma of a pro note got signed from them by way of security at the time of disbursement of amounts to Abdul Razaq towards prize amount due to him in the kuri run by the plaintiff. The chitty pass book, or receipt for payment of any chitty instalment by Abdul Razaq should have been produced and the details of the kuri and the manner of disbursement of the prize amount etc. ought to have been got down calling upon the plaintiff to produce those documents in the light of the contentions advanced by the defendants. None of those things was done. 5. The contention that there is no evidence regarding actual disbursement of Rs 30,000/- to the defendants is not of any merit as the defendants have no case that the plaintiff did not have sufficient money with them to advance the amounts and the contention set up by them as regards the circumstances under which Ext A1 pro note was executed has been found against. 6. The plaintiff has answered the other contentions raised by the appellants in the suit as regards the maintainability of the suit by producing documents to show that the plaintiff firm is registered with the Registrar of Firms and hence there is no bar under Section 69 (2) of the Partnership Act and also that they are having necessary RSA 333/08 5 license under the Money Lenders Act. Despite the issuance of notice appellants-defendants have not paid up the amounts. No other contention has been advanced before me by the learned counsel for the appellant. In the circumstances, I see no merit at all in this appeal and there is no question of law and much less any substantial question of law to be considered by this court in this R.S.A as is attempted to be formulated and made out in the appeal memorandum. In the result, confirming the correctness of the decree and judgment passed by the courts below I dismiss this R.S.A in limini refusing admission. Sd/- K.P. BALACHANDRAN Judge 17/06/2008 en [true copy]