P.C. Cherian v. Kumaran Vaidyar and P.K. Harikkutten

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANAM 1930 AS.No. 75 of 1995() ------------------OS.108/1993 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT: ----------- P.C.CHERIAN PALATHARA HOUSE DISTRICT COURT WARD, ALAPPUZHA BY ADV. SRI.S.SANAL KUMAR RESPONDENTS: ------------- 1. KUMARAN VAIDYAR S/O GOVINDAN POOKKOTTUPARAMBIL HOUSE KUTTAMANGALAM MURI KUTTAMANGALAM NORTH VILLAGE KUTTANADU 2. P.K.HARIKUTTAN S/O KUMARAN VAIDYAR POOKKOTTUPARAMBIL HOUSE KUTTAMANGALAM MURI KUTTAMANGALAM NORTH VILLAGE KUTTANADU VILLAGE BY ADV. SRI.R.AZAD BABU A DV.P.C.CHACKO THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - **A.S.No.75 OF 1995** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of December , 2008 ## **JUDGMENT** The plaintiff in a suit based on a promissory note which was dismissed by trial court with costs is the appellant and the defendants in the suit are the respondents. The parties will be referred for the sake of convenience as they were before the trial court. The plaintiff's case as averred in the plaint was that the defendants on 28[th] July 1992 executed a promissory notice in favour of the plaintiff for an amount of Rs. 32,000/- which was borrowed by the defendants for the purpose of the marriage of the daughter of the first defendant and other expenses and that the defendants promised to pay interest at the rate of 12% per Annum and also that inspite of repeated demands, defendants had not discharged the debt. 2. Through their joint written statement defendants raised the following contentions: They denied that they borrowed Rs. 32,000/- from the plaintiff in connection with the marriage of the first defendant's daughter. The AS.No.75/95 2 marriage was on 25-08-1989. At the time of marriage god ornaments worth Rs. 10,000/- were purchased on credit from the jwellery shop owned by the plaintiff and his family. There is no demand for repayment. The second defendant is a B.Com graduate and he was employed as Manager in the Matha Farm at Chellanam at Ernakulam district owned by the plaintiff from the year 1989 onwards. The second defendant was not prepared to associate himself with some nefarious activities of the plaintiff. Hence the plaintiff became hostile with the second defendant. On 27/07/1992 at midnight the plaintiff along with his friend Sasi severely manhandled him and forcibly took him in a car to the house of P.C. Roy, elder brother of the plaintiff residing at Alappuzha where he was allegedly confined, manhandled and threatened. The plaintiff asked a neighbour of the defendants to inform the second defendant's brother to bring all his certificates to Alappuzha. The second defendant's brother brought the certificates to Alappuzha without understanding as to what really happened. After obtaining the certificates relating to SSLC, B.Com. Degree and H.D.C. certificate, the plaintiff required the second defendant's brother to send the first AS.No.75/95 3 defendant to the house of P.C.Roy. When the first defendant came to the house, he was also intimidated by the plaintiff. He was told that the certificates would be burnt and the first defendant would be done away with. The plaintiff told the first defendant that Rs. 32,000/- was due to him from the second defendant. It was under such circumstances that the defendants happened to put their signatures to the promissory note. In effect, the contention was that the execution of the promissory note is effected by coercion and that the promissory note is not supported by consideration at all. 3. The learned Subordinate Judge formulated the following issues for trial : - 1) Whether it was under vitiating circumstance the promissory - note was executed ? - 2) Whether the promissory note is supported by consideration? - 3) What is the amount, if any, to which the plaintiff is entitled ? - 4) What is the order as to costs ? AS.No.75/95 4 4. At trial , the evidence on the side of the plaintiff consisted of the testimonies of PWs 1 , 2 and 3, Exts.A1 and A2. On the side of the defendants, the second defendant was examined as DW1 and Exts.B1 to B6 were marked. Ext.A1 was the promissory note dated 28-07-1992 and Ext.A2 was copy of the lawyer notice dated 04-01-1993. Ext.B1 was copy of the wedding invitation card. Ext.B2 dated 26-11-1992 was copy of the notice issued by the Sub Inspector of Police, Pulinkunnu. Ext.B3 was copy of another notice dated 11-12-1992 issued by the Sub Inspector of Police, Pulinkunnu. Ext.B4 dated 24-11-1993 was the letter issued by the Collector, Alappuzha. Ext.B5 dated 17-08-1993 was the reply notice to Ext.A2 lawyer notice. Ext.B6 dated 24-07-1993 was copy of lawyer notice. 5. The learned Subordinate Judge considered issues 1 to 3 together and would hold that non-examination of DW1 would justify in terms of written statement. According to the learned Judge, nothing was brought out to dis-believe his version that the defendants were made to execute promissory note under vitiating circumstances. It was also found that the plaintiff does not have any consistent case and that AS.No.75/95 5 the plaintiff's evidence is at variance with his pleadings. The evidence of PWs 2 and 3 was found to be not of a reliable character and that they are interested witnesses. Accordingly, all the issues were answered against the plaintiff and the suit was dismissed with costs. 6. It was very extensive submissions which were addressed before me by Sri.S.Sanal Kumar, learned counsel for the appellant and Sri.P.C.Chacko, learned counsel for the respondent. Sri.Sanal Kumar argued that the appreciation of the evidence which was actually available in the case by the court below was thoroughly erroneous. Learned counsel submitted that the court below has relied on irrelevant considerations for non-suiting the plaintiff. Learned counsel submitted that the cardinal contention set forth by the plaintiff for invalidating the promissory note is coercion. The coercion which was alleged in the written statement was an offence forbidden by the IPC. The defendant's defence was illegal confinement and the oral evidence adduced for proving the coercion and illegal confinement is the self serving oral testimony of the second defendant. The deliberate abstention of the first defendant in offering himself to be examined for AS.No.75/95 6 proving coercion especially when he himself was a victim to the alleged coercion itself was a circumstance sufficient for repelling the case of coercion. Learned counsel submitted that non-examination of the first defendant was of immense consequence in this case. Learned counsel submitted that the defendants would have examined other witnesses for substantiating their case of coercion such as persons to whom telephonic message regarding illegal detention was conveyed and also the brother of the second defendant who had allegedly come over to Alappuzha for handing over the certificates to the plaintiff. The non-examination of these witnesses is a circumstance which gives support to the contention of the plaintiff that the story of coercion in the matter of execution of promissory note is a false one. Learned counsel submitted that Ext.A1 was executed on 27-08-1992 and the defendants lodged complaints before the Dysp and IG of Police on 09-10-1992 respectively for getting back his certificates which he had left at Chellanam. It was during this period that service of the second defendant was terminated on charges of mis-appropriation and dereliction of duties. These complaints were submitted by the AS.No.75/95 7 defendant only after his services were terminated. The filing of the complaints before the Police was a tactful exercise of the defendant to give credibility to the contentions which he wanted to raise in respect of Ext.A1 which he had willingly executed. Sri.Sanal Kumar would refer to Section 118(a) of the Negotiable Instrument Act and submitted that the promissory note in question enjoyed the presumption under Section 118(a) and that it was for the defendant to rebut the above presumption which was a very strong one by adducing cogent evidence. 7. Sri.P.C.Chacko, learned counsel for the respondent would resist all the submissions of Sri.Sanal Kumar. According to him, the presumption under Section 118(a) should rebut in this case. He would cite the judgments of the Supreme Court in _**Kamala S. v. Vidyadharan M.J. and Another**_ ( 2007(2) KHC 631) and also the judgment in _**M.S.Narayana Menon Alias Mani v. State of Kerala and Another**_ ( AIR 2006 SC 3366). According to Sri.Chacko what the defendant is expected to give is only a probable defence and the court is expected to determine whether the said defence has been substantiated and also AS.No.75/95 8 whether the evidence adduced on behalf of the plaintiff was reliable. 8. I have anxiously considered the submissions addressed at the Bar. According to me, there are several aspects of the case which went unnoticed by the learned Subordinate Judge. The nonexamination of the brother of DW1 is in my opinion a very crucial circumstance working against the defence. The circumstance that complaints were filed by the defendants four months after the promissory note was executed was crucial. Equally crucial was the circumstance that no reply whatsoever was sent by the defendant to the demand notice sent by the plaintiff. The circumstance that Ext.P6 is issued only after the suit was filed and the defendant had taken adjournment for filing written statement was another circumstance of considerable moment. The second defendant was an educated person and Ext.A1 note was under his own promissory admittedly handwriting. Execution of Ext.A1 is admitted in the sense that the defendants do not deny their signatures in Ext.A1. The observation of the learned Judge that there is no challenge to the version of PW1 that Ext.A1 was got executed by exercising coercion does not appear to be 9 AS.No.75/95 correct. Though I agree with the learned Subordinate Judge that DW1 could have been more effectively cross-examined, several circumstances which improbablise the defendant's version have been brought out in cross-examination of DW1. Cross-examination of PWs 1, 2 and 3 by the defendants was also not very effective. It appears to me that two different standards have been adopted by the learned Subordinate Judge while appreciating the evidence adduced on the side of the plaintiff and the same adduced on the side of the defendants. The case of Kamala .S. v. Vidyadharan M.J. and Another ( 2007(2) KHC 631) was a criminal case where the appellant therein was convicted by the High Court reversing the judgment of the trial court. That case does not have any application to the facts of the present case. Even assuming that the principles laid down by the Supreme Court in M.S.Narayana Menon Alias Mani v. State of Kerala and Another ( AIR 2006 SC 3366) applies, then also what emerges is that the defence that the promissory note was executed under duress was a probable evidence. The important question is whether and to what extent the defence has been substantiated by the defendants. I am unable to agree AS.No.75/95 10 with Sri.Chacko that the above defence has been completely substantiated by the oral evidence of DW1 and the answers elicited from PWs 1 to 3. I feel that the issues should be reconsidered by the learned Subordinate Judge after affording opportunity to both sides particularly the defendants to adduce further evidence for substantiating their defence. 9. The result is that the judgment and decree under appeal are set aside. The suit is remanded to the Additional Subordinate Judge's Court, Alappuzha. That court will afford opportunity to the defendants for adducing further evidence. If the plaintiff wants to adduce any further evidence, such opportunity will be afforded to the plaintiff also and the learned Subordinate Judge will pass revised judgment in the light of the evidence already on record and the further evidence comes to be adduced. There is some indication in the evidence that the defendant was indebted to the plaintiff to the tune of Rs. 10,000/- in another context. Therefore, before the suit goes for trial, the learned Subordinate Judge will explore the possibilities of having the issues settled between the AS.No.75/95 11 parties amicably. Learned counsel on both sides will use their good offices with their parties in this regard. Refund the full court fee paid on the appeal memo to the learned counsel for the appellant. **PIUS.C.KURIAKOSE JUDGE** sv. AS.No.75/95 12