A.K. Sreejith v. A.G. Sivan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945** **RFA NO. 215 OF 2017** **AGAINST THE JUDGMENT AND DECREE DATED 03.09.2016 IN OS NO.531/2012 OF FIRST ADDITIONAL SUB COURT, THRISSUR APPELLANT:** A.K.SREEJITH AGED 37 YEARS, S/O. AMMANATH A.G KRISHNANG.F NO.1,RAGAM THANAM APARTMENTS,NEAR, ALAKKUPURA,MULANKUNNATHUKAVU P.O, THRISSUR 680 596 BY ADVS. SRI.C.ANIL KUMAR SMT.SHAHNA KARTHIKEYAN ## **RESPONDENT:** A.G. SIVAN AGED 61 YEARS, S/O. AMMANATH A.G GOVINDAN,PADUKAD DESOM, VIYYUR VILLAGE P.O,VIYYUR, THRISSUR 680 010 BY ADV SRI.G.KRISHNAKUMAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A.No.215 of 2017 -: 1 :- ## **Sathish Ninan, J.** **============================== R.F.A.No.215 of 2017 ========================== Dated this the 04[th] day of December, 2023** ## **JUDGMENT** The suit for money due under a promissory note was decreed by the trial court. The defendant is in appeal. 2. The defendant is the plaintiff's nephew(brother's son). According to the plaintiff, on 17.04.2010, the defendant borrowed an amount of Rs.7,50,000/- and executed Ext.A1 promissory note. On failure on the part of the defendant to repay the amount, the suit is filed. 3. The defendant contended that, the plaintiff, who was running an engineering workshop, was in severe financial crisis and debts. The plaintiff entrusted the defendant the task of running the workshop. The defendant was to be paid salary of Rs.8,000/- per month. Not only that the salary was not paid to him, but he had to even satisfy the debts of various creditors of the plaintiff. It is alleged that, to ward off the creditors R.F.A.No.215 of 2017 -: 2 :- and to satisfy them, the plaintiff had obtained blank signed stamp papers from the defendant. In March, 2010, the defendant entered into an agreement for purchase of an apartment. The plaintiff offered some financial assistance for the same. In the said connection when the accounts were looked into it was found that, as on 31.03.2010, an amount of Rs.7,18,153/- was payable to the defendant by the plaintiff. The defendant was required to sign a blank paper with a revenue stamp affixed thereon towards receipt of the amount. The defendant acceded to the same. The plaintiff promised that the amount will be paid after selling the workshop; during that time, there were prospective buyers for the workshop. In the year 2012, though the plaintiff sold the workshop, the amounts due to the defendant was not paid. A signed paper obtained by the plaintiff has been misused to fabricate the promissory note in question, it is contended. 4. The trial court found Ext.A1 promissory note to be genuine and supported by consideration. R.F.A.No.215 of 2017 -: 3 :- Accordingly, the suit was decreed. 5. I have heard the learned counsel, Smt.Shahana Karthikeyan, on behalf of the appellant-defendant and Shri.G. Krishnakumar, the learned counsel for the respondent-plaintiff. 6. The point that arises for determination in the appeal is, _“Is the finding of the trial court with regard to the genuineness of Ext.A1, sustainable on the evidence”_ . 7. The signature of the defendant in Ext.A1 is admitted. The contention is that, the signed blank paper of the defendant was fabricated into a promissory note. The learned counsel for the appellant would rely on various judgment of this Court including _**Kuttadan Velayudhan In Re 2001 (1) KLT 392, Joseph C. T. v. I.V.Philip and Ors. AIR 2001 KER 300**_ to contend that, mere admission of signature is not admission of execution and that, since execution of the promissory note has been denied, the plaintiff has to prove the same. Drawing of presumption regarding consideration, under Section 118 of the Negotiable Instruments Act, does not arise since R.F.A.No.215 of 2017 -: 4 :- execution is denied, it is urged. 8. The plaintiff has been examined as PW1 and the defendant was examined as DW1. In the written statement, the defendant refers to two occasions when the plaintiff had allegedly obtained signed blank papers from him. At paragraph 4 of the written statement he would say that, for satisfying and warding off the creditors of the plaintiff, he was required to give signed blank papers. At paragraph 6 of the written statement the defendant would contend that, a blank signed revenue stamped paper was required to be signed by him towards discharge of the amounts found due to the defendant on settlement of accounts. Being his father's brother, the defendant did not suspect the plaintiff, and gave the signed blank papers, is what is stated by him. However, it is pertinent to note that, when PW1 was cross examined, the pointed suggestion made to him was that, Ext.A1 was got signed by the plaintiff to convince the purchaser of the workshop that the defendant was discharged from service and had no claims. The relevant portion of the R.F.A.No.215 of 2017 -: 5 :- ## deposition reads thus; " Star കമന� വ�ൽക�മമ�ൾ പ�ത� ��ര�ഞ� മ��യത�ന� pipes ക�രര ക�ണ�ക�ൻ ഒര� മരഖ മവണര�ന� �റഞ� ഒപ�ട�വ�ങ�ചത�ണ� Ext-A1 ആയ� ഹ�ജര�ക�രയന�� �റയ�ന (Q) രതറ�ണത� (A).” This is contradictory to the plea in the written statement. 9. Though the defendant would contend that the plaintiff was in severe debts, that he was not being paid the salary, and that he had even advanced amounts for discharge of the liabilities of the plaintiff, there is absolutely no evidence regarding the same. The contention of the defendant was denied by the plaintiff. The account book Ext.A6, the entries of which have been made by the defendant himself, reveals payment of salary to the defendant. Advances, if any, have also been recorded in the account book. Though as DW1, the defendant would say that transactions relating to huge amounts were not recorded in the account book, he himself subsequently resiled from the statement and R.F.A.No.215 of 2017 -: 6 :- acknowledged such entries in the account book. As noticed earlier, there is no evidence to find that the plaintiff was in financial crisis. The contention of the defendant that, to ward off the creditors of the plaintiff, the defendant had entrusted signed blank stamp papers to the plaintiff, does not stand to reason and is not believable and acceptable. So also is the contention that, in the year 2010 the plaintiff obtained blank, signed revenue stamped paper as receipt agreeing to pay the amount at some future point of time. The contention of the defendant in the written statement is that, in the year 2012 when the workshop was sold, though the defendant approached the plaintiff for payment of the amounts he was not paid the same. Though he is claimed to have given a signed blank receipt towards payment of amounts due to him as early as in the year 2010, no steps were taken by him even till 2012, for receiving the amount or to get back the signed paper. All these contentions as above are unsupported by any evidence and do not inspire confidence. Though R.F.A.No.215 of 2017 -: 7 :- Ext.B1 series of receipts evidence payment of some amounts by the defendant, the plaintiff has explained that such payments were made utilizing the amount of the workshop. The trial court noticed that such payments have been reflected in Ext.A6 ledger book. 10. The defendant had purchased a flat in the year 2010. A suggestion was made to the defendant as DW1, by the counsel for the plaintiff that, the borrowal under Ext.A1 was for purchase of the apartment. To counter the same, the learned counsel for the appellant would rely on the averments in the affidavit filed in support of a claim petition-I.A.No.560 of 2013, filed by a Bank, seeking lifting of the attachment effected over the property of the defendant to contend that, the purchase was by availing loan from Bank. There is no evidence regarding the total cost of the apartment. Further, even going by the averments in the said affidavit, the defendant had availed a housing loan of Rs.8,00,000/only. Even according to DW1, the cost of the apartment was Rs.13½ lakhs. The affidavit refers to another credit R.F.A.No.215 of 2017 -: 8 :- facility of Rs.4,00,000/- availed by M/s.Akshaya Engineering Works, which is a proprietary concern of the defendant. It is a business loan and was availed only on 28.11.2011. 11. Both the plaintiff and the defendant having adduced the evidence, the issues of burden of proof and presumption pales to insignificance _**(See Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi,(AIR 1960 SC 100), Kalwa Devadattam v. Union of India(AIR 1964 SC 880), Moran Mar Basselios Catholicos v. Thukalan Paulo Avira(AIR 1959 SC 31)Rebti Devi v. Ram Dutt(AIR 1998 SC 310), Nanda Kishwar Bux v. Gopal Bux AIR 1940 PC 93)**_ . Court has to appreciate the entire evidence on record and arrive at a conclusion. The trial court has appreciated the entire evidence on record, both oral and documentary, in _extenso_ and found that the case of the plaintiff with regard to execution of Ext.A1 and the passing of consideration thereunder is true. The conclusion arrived at is reasonable and a possible one on the materials. The finding warrants no interference. The point is answered accordingly. R.F.A.No.215 of 2017 -: 9 :- Resultantly, the appeal lacks merit and is dismissed with costs. Sd/- **Sathish Ninan, Judge** yd