## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932**
**RSA.No. 530 of 2007()**
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**AS.16/2005 of SUB COURT,THODUPUZHA OS.147/2003 of MUNSIFF COURT,THODUPUZHA**
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## **APPELLANT/ APPELLANT/ DEFANDANT:**
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**JIMMY, SON OF SCARIA, NEDUKUDIYIL HOUSE, UDUMBANNOOR, THODUPUZHA.**
**BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR**
## **RESPONDENT(S): RESPONDENT/PLAINTIFF:**
**--------------------------**
**JOSEPH, SON OF ULAHANNAN, NIRAPPU KANDATHIL HOUSE, UDUMBANNOOR,THODUPUZHA.**
**ADV. SRI.M.NARENDRA KUMAR**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**tss**
## **P.BHAVADASAN, J.**
------------------------------------RSA No.530 of 2007 ------------------------------------Dated 11th June 2010
## Judgment
Undaunted by the concurrent findings against him, the defendant in a suit based on promissory note, has come up in appeal. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court.
2. The plaintiff instituted OS No.147/03 for recovery of a sum of Rs.30,000/- based on Ext.A1 promissory note dated 27.12.2000. Alleging that in spite of several demands, the amount was not paid, the suit was laid. The defendant resisted the suit. He denied having executed Ext.A1 promissory note. According to him, the promissory note was a fabricated and a forged one.
3. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and document marked as Ext.A1 from the side
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of the plaintiff. The defendant examined DW1. PWs 2 and 3 were examined by the plaintiffs to show that they were witnesses to the execution of Ext.A1 document. They did not support the plaintiff. Though they admitted their signatures on Ext.A1, they took the stand that they were unaware of the reasons for which they were made to sign on the document and they were under the impression that the same would be for obtaining permit for the quarrying purposes.
4. The Trial Court was disinclined to accept the versions given by PWs 2 and 3. The evidence of PW1 was appreciated in the right perspective by the Trial Court. Along with the other circumstances, the Trial Court came to the conclusion that the promissory note had, in fact, been executed by the defendant himself. The Trial Court also undertook the duty of comparing the signatures under S.73 of the Indian Evidence Act and with the aid of other items of evidence, came to the conclusion that the contentions taken by the defendant are false and the suit was
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## accordingly decreed.
5. In appeal, the Appellate Court independently evaluated the evidence and for cogent and convincing reasons, confirmed the decree of the Trial Court. The said Judgment and decree are assailed in this Second Appeal.
6. The learned counsel for the appellant pointed out that since the execution of the promissory note had been denied by the defendant, the entire burden was on the plaintiff to show that it was executed by the defendant and it was supported by consideration. Drawing attention to the fact that two witnesses of the plaintiff had declined to support the case of the plaintiff, it was pointed out that it was incumbent on the part of the plaintiff to prove due execution of the promissory note. Even going by the evidence of PW1, the execution of the promissory note in 2003 is unbelievable. It was also contended that there was no necessity for the defendant to borrow any amount from the plaintiff for he himself was considerably affluent. The learned counsel stressed that the court below should not
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have undertaken the duty of comparing the signatures and then coming to a conclusion on that basis alone.
7. According to the learned counsel, the courts below have erred both on law and on facts in decreeing the suit. The learned counsel for the respondent on the other hand, pointed out that there is no basis of any of the contentions raised before this Court. According to him, it is not the law that since PWs 2 and 3 have chosen to betray the plaintiff and spoken against the plaintiff, their evidence should be completely excluded, but that part of the evidence in favour of the plaintiff can be made use of by the courts below for coming to a conclusion. In support of his contention, the learned counsel relied on the decision of this Court in _**Thankamani v. Prabhakaran**_ (2001(1) KLT 776). The learned counsel also pointed out that it is not correct to say that the court is not competent to compare the signatures of a party and thereafter to come to a conclusion. However, the learned counsel was cautious enough to say that, that may not form the sole basis for decision, but that can be only one of
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the items of evidence. He also relied on the decision of the apex court, reported in _**Thiruvengada Pillai v. Navaneethammal**_ (2008(2) KLT 261). Drawing attention to the document itself, it was pointed out that it is not true to say that the document has been drawn up much later, after getting the signature of the plaintiff on it. No reasons are given in the written statement as to why the plaintiff should forge a promissory note of the defendant.
8. One must remember that this is a Second Appeal. Both the courts below have considered the evidence in considerable detail and thereafter, came to the conclusion that the promissory note was, in fact, executed by the defendant himself. As rightly pointed out by the learned counsel for the respondent, merely because PWs 2 and 3 have concealed the true facts, it does not mean that the case of the plaintiff should fail. It is well settled law that the fate of a document does not depend upon the whims and fancies of the witnesses. If the witnesses do not
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support his case, he may establish it by other means known to law. In the case on hand, both PWs 2 and 3 have stated that when they put their signatures, there was already a signature above them on a stamp and so, they thought that it must be for obtaining permit for the quarrying purposes. The said explanation cannot be accepted. One must remember that they have admitted their signatures on the document.
9. It is in the above context that the case of the plaintiff will have to be appreciated. One may, at once notice that in the written statement, there is no affirmation as to why the plaintiff should forge the signature of the defendant and concoct the documents against him. At the time of evidence, a story was cooked up that since the defendant refused to supply medicines to the plaintiff on credit, the plaintiff has fabricated the suit document against him. It is too difficult to believe that story. Firstly, for want of pleadings and secondly for its improbability. As far as the comparison of signatures by the court is concerned, one
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needs to notice that it was not the sole basis on which the court below came to a conclusion, it was only one of the reasons. As far as the non-examination of the scribe is concerned, it cannot be said to be fatal. As to whether it was necessary for the defendant to borrow money from the plaintiff, it is not a matter to be gone into in this suit as there is no evidence to reach a conclusion. The result is that there is no merit in any of the contentions in the Second Appeal.
10. However, it is pointed out that the pendente lite interest granted is on the higher side. The courts below have granted 12% interest. There is some justification in the said complaint voiced by the appellant.
11. In the result, a decree is passed on the
following terms :
- (i) The plaintiff is entitled to recover a sum of
- Rs.38,900/- from the defendant and his assets.
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(ii) He shall be entitled to interest @ 6% per annum on the sum of Rs.30,000/- from the date of suit till the realisation.
There will be no order as to costs.
**P.BHAVADASAN, JUDGE**
sta
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