The High Court of Kerala disposed of a second appeal in a money suit admitted to a promissory note dispute. The Court held there was no substantial question of law, upholding the lower court's findings on execution and possibility of hospital discharge.
Second appeal dismissed; decree in favour of respondent affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931
RSA.No. 268 of 2010()
--------------------AS.21/2008 of PRINCIPAL SUB COURT,ERNAKULAM OS.127/2001 of MUNSIFF COURT,MUVATTUPUZHA
APPELLANT/RESPONDENT/DEFENDANT:
-------------------POLLY JOSEPH, S/o. JOSEPH MUNDACKAL HOUSE, ANGADI KARA KOTHAMANGALAM VILLAGE, KOTHAMANGA TALUK
BY ADV. SRI.M.R.SARIN PANICKER
RESPONDENT/APPELLANT/PLAINTIFF:
--------------JIBI M KUNNAPPILLY S/o. MATHAI KUNNAPPILLIL HOUSE RAMANGALAM KARA MARADY VILLAGE
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P JOSEPH, J.
R.S.A.No.268 of 2010
Dated this 09th day of March, 2010
JUDGMENT
The second appeal arises from judgment and decree of learned Sub Judge, Ernakulam in A.S.No.21 of 2008 reversing dismissal of the suit by the learned Munsiff, Moovattupuzha and granting a decree in favour of respondent for realisation of money. Respondent alleged that on 16-02-2000 appellant borrowed Rs.60,000/- from him and to secure payment of that amount executed Ext.A1, demand promissory note. Since the amount was not repaid, respondent instituted the suit. Appellant denied that there was any such transaction with the respondent or, that he had executed promissory note. According to him, his brother had some transactions with the respondent and though, those transactions were settled, respondent had been harassing them. Accordingly, demand promissory note was fraudulently created. Respondent gave evidence as PW1 and proved Ext.A1. PW2 is a witness in Ext.A1. He supported the case of respondent. Appellant gave contra evidence as DW1 and proved Ext.B1, certificate of treatment issued from Mar Baselious Medical Mission Hospital, Kothamangalam evidencing his inpatient treatment from 01-02-2000 till 17-02-2000 and Ext.X1, case sheet for such treatment. Learned Munsiff was of the view that going by Ext.X1 and
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evidence of PW1 and DW1, appellant was remaining inpatient in the hospital at Kothamangalam on 16-02-2000 when he is said to have executed Ext.A1, demand promissory note at the shop of respondent at Moovattupuzha and hence the version of respondent regarding the alleged execution of Ext.A1 cannot be accepted. Learned Munsiff also disbelieved evidence of respondent for the reason that though he stated that Ext.A1 was prepared by one Joy, a customer of his, he could not speak about the whereabouts of the said person. Holding so the suit was dismissed. On appeal at the instance of respondent, first appellate court referred to the evidence on record, came to the conclusion that in the facts and circumstances and evidence of PWs.1 and 2 possibility of appellant executing Ext.A1 at the shop of respondent (PW1) at Moovattupuzha cannot be ruled out. First appellate court has also referred to the evidence of appellant as DW1. A further fact which struck the notice of first appellate court is similarity in the signature in Ext.A1 with the admitted signature of appellant in his vakkalath and deposition as DW1 while, his signature in the written statement varied from those signatures. On a consideration of the above circumstances, first appellate court came to the conclusion that there is no reason to disbelieve case of respondent regarding execution of Ext.A1. Accordingly a decree was granted in favour of respondent. That is under challenge in this appeal raising by way of substantial question of law whether first appellate court was
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justified in comparing signature in Ext.A1 with the admitted signature of appellant and reaching the conclusion on a mere casual or routine perusal without analyzing the characteristics of the disputed/admitted signature. It is contended by learned counsel for appellant placing reliance on the decision of this court in Jyothis Kuries & Loans Vs. George Jose (2003(3) KLT 1157) and of the Supreme Court in Thiruvengada Pillai Vs. Navaneethammal (2008(2) KLT 267) that finding of the first appellate court is vitiated in that, it compared the admitted and disputed signature and come to a conclusion regarding execution of Ext.A1.
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admitted/disputed signatures made by the first appellate court. That is only one of the circumstance the first appellate court has taken into consideration in concluding in favour of the due execution of Ext.A1 which, I do not find suffer from any legal infirmity.
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to board a fast moving KSRTC bus, reach Moovattupuzha and return to Kothamangalam the same day as said places are not so far away so that evidence of PWs.1 and 2 about the transaction and execution of Ext.A1 at Moovattupuzha should discarded (as impossible or near impossible). First appellate court stated that the evidence revealed that on 17-02-2000 appellant was discharged from the private hospital after admission and treatment from 01-02-2000, necessarily he had to honour the bill on 17-02-2000 and that indicated that he was in dire need of money on that day. That is also taken as circumstance in favour of the case of respondent about the borrowal on 16-02-2000.
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find that so far as the evidence of PW2 is concerned, there was not even serious cross examination. There were only some bald suggestion to him.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
2 issues framed by the court
Whether the first appellate court was justified in concluding the execution of the demand promissory note based partly on signature comparison without analyzing characteristics.
Whether it was impossible for the appellant to execute the note while admitted to be an inpatient in a hospital.
Colour shows how this judgement treated each authority
Jyothis Kuries & Loans Vs. George JoseReferred¶2
_Jyothis Kuries & Loans Vs. George Jose (2003(3) KLT 1157)_
Thiruvengada Pillai Vs. NavaneethammalReferred¶2
_Thiruvengada Pillai Vs. Navaneethammal (2008(2) KLT 267)_
1 provisions across 1 enactments
Polly Joseph
Jibi M Kunnappilly
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
