Janaki Amma v. Aravindakshan

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934 SA.No. 306 of 2000 (C) ---------------------AGAINST THE JUDGMENT IN AS.83/1999 of I ADDL.SUB COURT, THRISSUR AGAINST THE JUDGMENT IN OS.1401/1993 of PRL.MUNSIFF COURT,THRISSUR APPELLANT: --------- JANAKI AMMA, D/O. MADAMBAT AMMUKUTTY AMMA, PONALLUR DESOM, MANALUR VILLAGE, THRISSUR TALUK BY ADV. SRI.T.K.MARTHANDAN UNNITHAN RESPONDENT: ------------ ARAVINDAKSHAN, S/O. KOLLADI KRISHNAN, PONALLUR DESOM, MANALUR VILLAGE, THRISSUR TALUK ADVS. M/S.M.R.VENUGOPAL & SMT.DHANYA P.ASHOKAN FOR RESPONDENT THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** **................................................................. S.A. No. 306 of 2000 ....................................................................** ## **Dated:6th February, 2013** ## **JUDGMENT** Challenge in this Second Appeal filed by the defendant is the decree for money passed in a suit filed by the plaintiff based on Ext.A1 which is styled as a promissory note. The claim is founded on the original consideration as the plaintiff contends. It is alleged that the defendant had borrowed from the plaintiff a sum of Rs.12,000/- on 19-51992 and Ext.A1 promissory note was executed by her. The appellant/defendant contended that she did not borrow any amount from the plaintiff nor did she execute any document. It was also contended that she had handed over some signed papers to one Dr. Johny and making use of one of such papers Ext.A1 promissory note was created. 2. The plaintiff was examined as P.W.1 and Exts.A1 to A3 were marked. The defendant/appellant was examined as DW1. The trial Court found that Ext.A1 which is styled -:2:- S.A. No. 306 of 2000 as a promissory note was executed by the appellant and that it was executed by the defendant for having received Rs.12,000/- from the plaintiff. The finding to that effect entered by the trial Court was confirmed by the appellate Court. 3. The learned counsel appearing for the defendant/appellant would submit that except the interested testimony of P.W.1, there is no document to prove the transaction nor is there any evidence of execution of Ext.A1 which is styled as a promissory note. The learned counsel would read out Ext.A1 to show that the last two sentences therein would make it clear that it is not actually a promissory note since no word of promise is contained in it. According to the learned counsel, if Ext.A1 cannot be treated as a promissory note then the document can only be treated as a bond in which case the said document is inadmissible in evidence, for, it is an insufficiently stamped document. The learned counsel for the plaintiff would submit that no such serious contention -:3:- S.A. No. 306 of 2000 was advanced before the trial Court. Though objection was raised by the defendant in marking the document, it can be seen that it was acted upon by the trial court and also by the appellate court as a document evidencing transaction. It is further submitted that even if Ext.A1 is not accepted as promissory note, still the evidence given by P.W.1 regarding the lending of money can certainly be acted upon. In this connection, the learned counsel for the plaintiff would submit that the inconsistent stand taken by the defendant itself would unfold the fallacy of the case advanced by the defendant. It was specifically stated by P.W.1 that the defendant is residing in a house about two houses away from the house of the plaintiff. It is also stated that the address of the plaintiff and defendant shown in the plaint and the appeal memorandum would also make it clear that both of them are residing in the very same locality though DW1 wanted to contend that she was staying about three kms. away. Though it was stated that she had handed over signed blank papers to Dr. Johny that -:4:- S.A. No. 306 of 2000 remains in the realm of suggestion alone. No other circumstance could be brought out by the appellant to contend that the evidence of execution of Ext. A1 given by P.W.1 is unacceptable. Though it was contended by the defendant that she did not execute Ext.A1 document, the subsequent statements given by her that she had handed over signed blank papers to Dr. Johny and that Ext.A1 was created by making one such paper would make it clear that Ext. A1 contains her signature. It is seen that her signature appears on the revenue stamp as well which would indicate that she had signed on the revenue stamp as well confirming the execution of the document as a promissory note. In this connection, the learned counsel for the plaintiff would also submit that the case of denial put forward by the defendant is unworthy of credence since when she was confronted with her own vakalath and the written statement she made a denial of her signature therein which would indicate that she was bent upon denying everything, even her own admitted signatures in S.A. No. 306 of 2000 -:5:- the vakalath and written statement and, therefore, that would make it clear that DW1 was not telling truth in Court. 4. Since the execution of the document is a matter in respect of which evidence was adduced by the parties and since that was accepted by the courts below after analysing the evidence adduced by the parties, this Court cannot interfere with the said finding of fact. 5. The only other point that survives for consideration is that whether de hors Ext. A1 the plaintiff can sustain his claim for money falling back upon the original transaction. Learned counsel for the defendant submitted that on going through the plaint it is clear that it was stated by the plaintiff that the amount was payable by the defendant on account of the promissory note executed by her and not on the original transaction. Though the promissory note was also projected to fortify the claim made by the plaintiff still on going through the plaint and evidence it can be seen that the original transaction averred -:6:- S.A. No. 306 of 2000 by the plaintiff could also be fully established and as such even if Ext.A1 cannot be treated as a promissory note still the finding entered by the courts below that the defendant had borrowed Rs. 12000/- from the plaintiff as alleged in the plaint is acceptable. 6. The learned counsel for the appellant would submit that when the suit is on promissory note, the plaintiff is not entitled to get a decree on original consideration and for that purpose it is submitted that a perusal of the plaint would make it clear that the claim was founded on Ext.A1 promissory note and not on the original cause of action namely; the original transaction of lending of money. But, the respondent would contend that though execution of Ext.A1 promissory note was very much averred in the plaint the contention that the defendant had borrowed the amount of Rs.12000/- and it was to secure the due payment of that amount Ext.A1 was executed can be discerned from the pleadings and as such the plaintiff can certainly fall upon the original cause of action; namely; the original -:7:- S.A. No. 306 of 2000 transaction to base his claim for return of money for which he has relied upon the decision of the Division Bench of this Court in **Saffia Khathoon** v. **Kunhambu and others** [1977 KLT 448] and another Single Bench decision in **P.C. Gopinathan Nair** v. **Paramu Pillai Appu Pillai** [1990 (2) KLJ 323]. On going through the plaint and evidence it can be seen that the plaintiff made sufficient averments regarding the original transaction as well and so, the contention that the decree granted in favour of the plaintiff is to be set aside cannot be sustained. 7. The learned counsel for the appellant would submit that Ext.A1 does not stipulate the payment of interest and so, the interest awarded by the court below cannot be sustained. Though no provision for payment of interest was mentioned the contention that the plaintiff is not entitled to get any interest cannot be sustained but at the same time, the rate of interest has to be reduced to 9%. To that extent the decree has to be modified. In the result, this Second Appeal is disposed of as -:8:- S.A. No. 306 of 2000 follows :- A modified decree is passed directing the defendant to pay to the plaintiff a sum of Rs.12000/(Rupees twelve thousand only) with interest thereon at 9% per annum from 19.5.1992 till the date of deposit of the amount (Rs.22,418/-) before the trial court and also to pay cost of the suit and the first appeal. The parties are directed to suffer their respective costs in this second appeal. Dated this the 6th February, 2013. Sd/- **N.K.BALAKRISHNAN, JUDGE** ani/ /true copy/ P.S. to Judge