RadhaKrishnan S/O Karunakaran v. Seetha (Seena) [Corrected as Seetha by order dated 02.09.2021 in IA No.1/2021 in RFA No.548/2010]

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **RFA.No.548 OF 2010** **AGAINST THE JUDGMENT AND DECREE DATED 14.6.2010 IN OS 230/2005 OF ADDITIONAL SUB COURT, KOLLAM** ## **APPELLANT/DEFENDANT:** **RADHAKRISHNAN S/O KARUNAKARAN,PLAVILA VEEDU, PRAKKULAMCHERRY,TRIKKARUVA VILLAGE,KOLLAM TALUK** **BY ADV. SRI.M.T.SURESHKUMAR** ## **RESPONDENT/PLAINTIFF:** *** SEENA (CORRECTED AS 'SEETHA') D/O .THANKAMMA,SREEVIHAR,PRAKKULAMCHERRY, TRIKKARUVA VILLAGE,KOLLAM TALUK.** **(*CORRECTED AS PER ORDER DATED 02.09.2021 IN IA NO.1/2021 IN RFA)** **BY ADV. SRI.T.S.HARIKUMAR BY ADV. SRI.P.B.SAHASRANAMAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **R.F.A.No.548 of 2010** ## **:-2-:** ## **Dated this the 12[th] day of October, 2020** ## **J U D G M E N T** Appellant is the defendant in O.S.No.230/2005 on the file of Additional Sub Judge, Kollam. He is aggrieved by the judgment and decree passed by the court below allowing the respondent/plaintiff to recover the loan amount of Rs.3 lakhs with interest. 2. The parties stand in close relationship with each other. The respondent's case is that the appellant borrowed on two occasions an amount of Rs.1,60,000/- and Rs.1,40,000/- on 30.7.2000 and on 20.7.2002 respectively. On 20.7.2002, the appellant executed Ext.A1 promissory note and it is stated that promissory note taken for the former payment of Rs.1,60,000/- was returned on the day. The appellant is stated to have paid interest for some time and when he defaulted payment, the suit was ## **R.F.A.No.548 of 2010** ## **:-3-:** instituted after issuing Ext.A2 lawyer's notice. 3. Appellant's contention in the written statement is that he did not borrow any amount from the respondent. He denied execution of Ext.A1 document also. According to him, he happened to execute Ext.A1 which was a stamped blank paper on 11.1.2005 in Anchalumoodu Police Station under threat and coercion, following a complaint lodged by the respondent against him before the Police authorities. He contended that there was a money transaction for an amount of Rs.50,000/- between the respondent and appellant's employer one Anilkumar under whom he was working as a salesman in a paper-mart. The amount was paid to Sri.Anilkumar in the month of January, 1999, upon appellant introducing the borrower to the respondent. But Sri.Anilkumar for his own reasons was not in a position to return the amount and he ## **R.F.A.No.548 of 2010** **:-4-:** left for Gulf. Therefore, the appellant at the insistence of respondent and others agreed to discharge the liability of Sri.Anilkumar on or before 31.12.2005. While that undertaking was in force, appellant was called to the Police Station and under threat, Ext.A1 blank document was executed. It is contended that the document is not supported by any consideration and therefore it is not enforceable against him. 4. The court below examined the question as to whether Ext.A1 document dated 20.7.2002 was executed by the appellant in the light of the oral evidence given by the parties and their witnesses and came to a conclusion that the transactions between the parties were proved and Ext.A1 pro-note was executed by the appellant in discharge of loan liability for an amount of Rs.3 lakhs. Appellant's case was found to be improbable and further not ## **R.F.A.No.548 of 2010** ## **:-5-:** proved also. 5. On the side of the respondent, herself and independent witness PW2, an attestor to Ext.A1 were examined and Exts.A1 to A3 documents were tendered as evidence on her side. Appellant examined himself and independent witnesses respectively as DW1 and DW2 and on his side Ext.B1 was also marked. 6. I heard the learned counsel for the appellant and the respondent. 7. The contention raised by the learned counsel for the appellant is that Ext.A1 is not a promissory note as contended to be but a bond within the definition of Section 2(a) of the Kerala Stamp Act, 1959 (for short, 'the Act') and therefore, the suit claiming money based on pronote is not maintainable. This contention was taken for the first time but nevertheless being a question of law, it requires to be considered now ## **R.F.A.No.548 of 2010** ## **:-6-:** in this appeal. It was also contended that the decree granted by the court below was vitiated by misappreciation of facts and evidence in as much as it was based on the interested testimonies of respondent and her witness. His contention on the basis of testimonies given by DWs.1 and 2 is that Ext.A1 document was by all means got executed in Anchalumoodu Police Station under threat and coercion. 8. The learned counsel for the respondent on the other hand submitted that irrespective of the nature of Ext.A1 document, the loan transaction and liability of the appellant have been sufficiently proved by evidence on record. The lower court rightly accepted the testimony of the respondent and witness in preference to the evidence tendered on behalf of the appellant. Relying on the discussions made in the impugned judgment, it was ## **R.F.A.No.548 of 2010** ## **:-7-:** contended by the learned counsel for the respondent that no steps were taken by the appellant to prove that Ext.A1 document was executed in Police Station and any complaint allegedly lodged by the respondent against the appellant was sought to be brought on record for no good reason. 9. Looking at Ext.A1 document, I find that it is a document attested by two witnesses which is ordinarily the attribute of a bond. PW2 is the second witness in the document. Ext.A1 discloses that it was made payable to the “orderly” of the payee. It was not expressly made payable to the order or bearer of the payee. It is contended by the counsel for the appellant that the only indication to distinguish Ext.A1 from a bond is the label that it is a pro-note. Under law, it is trite that label of a document is wholly irrelevant. 10. The learned counsel for the appellant ## **R.F.A.No.548 of 2010** ## **:-8-:** submitted that when a document is attested by witnesses and is not made payable either to the order or bearer, it is under law a bond falling within the definition of Section 2(a) of the Act. In support of this contention, he relied on two decisions reported in **Jagadeesh v. A.K.Thomas** **(2016(2) KHC 457)** and **Ram Narayan Bhagat v. Ram** ## **Chandra Singh (AIR 1962 (Patna) 325)** . 11. The learned counsel for the respondent submitted that Ext.A1 is a pro-note having regard to the recitals in the document. It is contended that the amount was made payable to the order of the payee rather than to an “orderly”. The contention seems to be that the expression “orderly” was used as a misnomer. 12. The learned counsel for appellant submitted that an orderly person means an agent and since amount was allegedly made payable to an agent, the ## **R.F.A.No.548 of 2010** ## **:-9-:** document is nothing but a bond. 13. Having considered the entirety of facts and evidence, it appears that “orderly”, the expression in Ext.A1 was used as a misnomer for “order”. Even if it is assumed that Ext.A1 is a manipulated document, the respondent had no reason to fabricate it in a way as to make it payable to an orderly person when nobody has a case that she has an agent ever employed. She is a housewife. An orderly person is not a synonym for an agent even going by the popular meaning understood by lay persons. 14. The learned counsel for the appellant further submitted that once Ext.A1 is found to be a bond, a suit on a promissory note for recovery of alleged debt created by an instrument of bond cannot proceed in as much as suit on a promissory note is governed by Chapters V and VIII of the NI Act. It is submitted that suit and remedy created ## **R.F.A.No.548 of 2010** ## **:-10-:** by a special statute should be treated differently from remedy of law exercised as per the law of contract. 15. The learned counsel for the respondent submitted that irrespective of the nature of Ext.A1, the execution was proved by evidence. According to him, despite Ext.A1 being construed as a bond also, the transactions between parties under which the appellant incurred liability remain the same and have been duly proved by evidence and therefore decree granted by the court below on the strength of Ext.A1 and supporting evidence is not worthy of interference. 16. After hearing both sides, I am of the opinion that even assuming Ext.A1 to be a bond, the change of nature of the document will not take away the liability of the executant, if proved. In my view, the only legal consequence in the event of ## **R.F.A.No.548 of 2010** |**:-11-:**| |---| |Ext.A1 document being construed as a bond, is that| |the respondent would no longer be profited by the| |presumption of consideration available to a pro-| |note by virtue of Section 118 of the Negotiable| |Instruments Act, 1881 (for short, 'the NI Act').| |Except the above statutory presumption being| |deprived of, in all other respects, the| |respondent's claim for money in the suit could| |nevertheless be upheld provided the execution of| |document and transaction are proved by evidence.| |The contention of the learned counsel for the| |appellant that when the nature of document changed,| |the liability also consequently changed, does not| |appear to be consistent with the principle of law.| |It is significant to note that appellant has no| |case that suit is barred by limitation or it was| |brought<br>without<br>complying<br>with<br>essential| |formalities required before institution of a suit| ## **R.F.A.No.548 of 2010** ## **:-12-:** on a bond. 17. PW2 the second attestor said that he had seen the appellant executing the document at the house of the respondent. He further said that a signed promissory note in the hands of the respondent was returned to the appellant on the day. That was in connection with a prior transaction in which the appellant had received some amount of money from the respondent. The court below believed PWs.1 and 2 and found their evidence to be trustworthy. 18. On the other hand, the appellant could not bring forth any evidence to show that the execution of the document was in the Police Station. Going by his own case, immediately after he was coerced and a blank document was get executed, he complained to Vigilance Superintendent of Police who ordered an inquiry to the matter. If there was such a ## **R.F.A.No.548 of 2010** ## **:-13-:** complaint at his instance, it would have been easy for him to have called for production of petition register to prove the complaint filed against the respondent. He could have at least examined and summoned some person who witnessed him being at the Police Station on the fateful day. No steps were taken for proving his contention. This was taken serious notice of by the court below and by applying the test of preponderance of probabilities, respondent's case was believed. 19. I do not find on re-appreciation of evidence on record that the findings entered into by the court below require any interference. Even in the absence of presumption of consideration aided by Section 118 of the NI Act, there is trust worthy evidence tendered by the respondent proving the transaction as well as execution of Ext.A1 document. The impugned judgment and decree are only **R.F.A.No.548 of 2010** **:-14-:** to be confirmed. In the result, the appeal fails and it is dismissed. No costs. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ **R.F.A.No.548 of 2010** **:-15-:** **The name of Respondent/Plaintiff in Judgment dated 12.10.2020 in R.F.A.No.548/2010 is corrected as 'Seetha' instead of Seena vide order dated 02.09.2021 in IA No.1/2021 in RFA No.548/2010.** **Sd/ASSISTANT REGISTRAR**