Mohanan M., S/o Muthukutty v. Ananthakrishnan, S/o Theethunny

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934** ## **RSA.NO. 226 OF 2010 ( )** **----------------------------------AS.289/2008 OF THE FIRST ADDITIONAL DISTRICT JUDGE, PALAKKAD OS.187/2003 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT(S)/RESPONDENT/DEFENDANT:** **---------------------------------------------------------------** **MOHANAN M., S/O.MUTHUKUTTY, AGED 48 YEARS, MUNDANKANDATH VEEDU, KOTTEKKAD AMSOM PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENT(S)/APPELLANT/PLAINTIFF:** **------------------------------------------------------------** **ANANTHAKRISHNAN, S/O.THEETHUNNY, AGED 56 YEARS, THAZHATHE VEEDU, VENOLI PUDUSSERY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT** **BY ADV. SRI.JACOB SEBASTIAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.07.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.226 of 2010 ==================================== Dated this the 31[st] day of July, 2012** ## **J U D G M E N T** This Second Appeal arises from the judgment and decree of learned District Judge, Palakkad in A.S. No.289 of 2008 granting a decree in favour of the respondent, reversing dismissal of O.S. No.187 of 2003 of the court of learned Principle Sub Judge, Palakkad. 2. Respondent sued the appellant for realization of Rs.75,000/- with interest at the rate of 12% per annum on the strength of Ext.A1, demand promissory note dated 30.06.2000 (allegedly) executed by the appellant undertaking to repay the said amount on demand with interest. According to the respondent, the appellant borrowed the amount for agricultural operations and executed the promissory note. Demanding repayment of the amount, respondent issued notice dated 04.06.2003 (copy of which is Ext.A2), the issue and service of notice are proved by Exts.A2(a) and A2(b). 3. Appellant denied the transaction and the execution of Ext.A1. He denied that Ext.A1 contained his signature. He claimed that the suit is filed at the instance of a person who had an ## **R.S.A. No.226 of 2010** ## -: 2 :- axe to grind against him. He claimed that since he was laid up due to Dengue fever from 01.06.2003, he was not able to reply to the notice. 4. Respondent gave evidence as P.W.1 and marked Exts.A1 to A2(b). Appellant gave evidence as D.W.1 and stuck to his case. The trial court after consideration of the evidence held that the due execution of Ext.A1 is not proved and dismissed the suit. 5. In appeal at the instance of respondent, the learned District Judge observed that evidence of P.W.1 proved the due execution of Ext.A1. It was observed that failure of the appellant to reply to Ext.A2, notice is a circumstance which corroborated evidence of the respondent as P.W.1. The decision of the trial court was reversed and a decree was granted as prayed for. 6. The following substantial questions of law are framed for a decision: (i) Is it not the duty of the plaintiff to prove execution of the promissory note when the defendant denies execution, handwriting, signature and consideration? ## **R.S.A. No.226 of 2010** -: 3 :- (ii) Is it not duty of the plaintiff to examine the witness or especially when he is claiming that there were witnesses who had seen the execution of the pro note? (iii) Was it not mandatory on the part of the lower appellate court to accept the claim laid down by this Court in _**Velayudhan v. Velayudhan (2001 [1] KLT 392)**_ to the effect that mere putting of signature does not amount to admission of execution of the document? 7. The learned counsel for the appellant contended that there was no sufficient evidence on which the first appellate court could have reversed the decision of the trial court. It is pointed out that though in the evidence (though not mentioned in Ext.A2, notice or the plaint) respondent claimed that two persons had witnessed the transaction and execution of Ext.A1, but none of them was examined. According to the learned counsel, no attempt was made by the respondent to get the signature in Ext.A1 examined by an Expert notwithstanding the denial made by the appellant. It is argued that the mere non- **R.S.A. No.226 of 2010** ## -: 4 :- reply to the notice is not sufficient to find in favour of the respondent. It is also argued by the learned counsel that the appellant when examined as D.W1 has explained the circumstances under which he could not reply to Ext.A2, notice. 8. The learned counsel for the respondent contended that due execution of Ext.A1 is proved by the evidence of the respondent as P.W.1. It is argued by learned counsel that respondent has withstood the cross-examination as to due execution of Ext.A1. It is also argued that though the appellant has a contention as to why the respondent has instituted the suit against him, no evidence in support of that contention is adduced. The learned counsel submits that the failure to reply to Ext.A2, notice is a further circumstance which would corroborates the evidence of the respondent. Reliance is placed on the decision in **Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Others** ([2008] 7 SCC 655). 9. In the decision cited supra the Supreme Court was referring to the presumption regarding consideration under Section 118(a) of the Negotiable Instruments Act. It was held that the initial burden is on the defendant to show that existence ## **R.S.A. No.226 of 2010** ## -: 5 :- of consideration was improbable or doubtful or illegal and that if that burden is discharged, the onus would shift to the plaintiff. That was a case referring to the proof of consideration (once due execution of the instrument is either admitted or proved). In this case the said decision has no application since Ext.A1 is disputed by the appellant and he has given evidence as D.W.1. 10. It is not as if based on the evidence of plaintiff alone there could be no finding regarding the due execution of the instrument. But that depends on the facts and circumstances of the case. Though the respondent claimed that two persons had witnessed the transaction and execution of Ext.A1, none of them has been examined. 11. On the facts of this case I am not inclined to think that merely because the appellant did not reply to Ext.A2, notice, that should be taken as a circumstance in favour of due execution of Ext.A1. Burden of proving the due execution of Ext.A1 was squarely on the respondent. The burden regarding proof of consideration would follow only after the due execution of Ext.A1 was proved. Respondent did not take any effort to examine the disputed signature in Ext.A1 with the admitted signature of the appellant. Appellant admitted that Ext.A2(b) ## **R.S.A. No.226 of 2010** ## -: 6 :- contains his signature. If that be so, it was possible for the respondent to get expert opinion on the disputed signature in Ext.A1 either with the admitted signature in Ext.A2(b) or with the admitted signatures of the appellant or even with the specimen signatures of the appellant. 12. A further fact I must notice is that according to the respondent, appellant had brought the promissory note (which is in printed form with the name of the appellant and respondent, the date and place filled up in ink) and it was signed in his presence. In the circumstances the more appropriate course open to the respondent was to get expert opinion on the disputed signature in Ext.A1. Without that the first appellate court was not correct in reversing the judgment and decree of the trial court. 13. Having heard the learned counsel on both sides and gone through the evidence on record I am inclined to think that expert opinion on the disputed signature was necessary for arriving at a decision as to the execution of Ext.A1. For that, a remand of the case is necessary. 14. The substantial questions of law framed are answered as above. Second appeal is allowed as under: ## **R.S.A. No.226 of 2010** ## -: 7 :- (i) Judgment and decree of the learned District Judge, Palakkad in A.S. No.289 of 2008 are set aside. (ii) Judgment and decree of the learned Principal Sub Judge, in O.S. No.187 of 2003 are also set aside. (iii) O.S. No.187 of 2003 is remitted to the court of learned Principal Sub Judge, Palakkad for fresh decision after giving both sides opportunity to adduce evidence. (iv) Learned Principal Sub Judge, Palakkad is directed to expedite the trial and disposal of the suit since it is of the year 2003. (iv) Appellant is entitled to refund of court fee as per the law. ## **R.S.A. No.226 of 2010** -: 8 :- Parties shall appear in the court of learned Sub Judge, on 18.08.2012. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv