Dismissed

Antoney v. Alphonsa

Kerala HC12 Feb 2013RSA/43/2013

Case brief

AI extract

What is this about?

This regular second appeal by a debtor in a money suit was dismissed in limine. The court held that the lower appellate court did not rely solely on signature comparison to decide, but also considered the plaintiff's witness evidence and the defendant's failure to reply to the suit notice. No substantial question of law was involved.

What did the court decide?

The regular second appeal (RSA No. 43 of 2013) is dismissed in limine.

Antoney Vs Alphonsa — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934

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RSA.No. 43 of 2013 ()

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AGAINST THE JUDGMENT IN AS.60/2008 of SUB COURT, CHERTHALA

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AGAINST THE JUDGMENT IN OS.117/2006 of PRL.MUNSIFF 's COURT, CHERTHALA

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APPELLANT(S)/APPELLANT/DEFENDANT:

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ANTONEY,

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S/O THOMAS, KAITHAKKATTU VEETTIL, WARD NO.3 EZHUPUNNA PANCHAYATH, CHERTHALA, ALAPPUZHA.

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BY ADV. SRI.J.OM PRAKASH

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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ALPHONSA@ ALICE,

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W/O SANDYAVU, KANDATHIL, EZHUPUNNA P.O. CHERTHALA.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N.K.BALAKRISHNAN, J.

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................................................................. R.S.A. No. 43 of 2013

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Dated: 12-02-2013

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JUDGMENT

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The defendant in a suit for money is the appellant. According to the plaintiff, the defendant borrowed a sum of 36,500/- on 9-8-2005 by executing a promissory note, agreeing to repay the amount with interest at 6% per annum. The defendant failed to pay the amount. Hence, the suit was filed. The defendant denied the execution of the promissory note and also the passing of the consideration. But at the same time it was contended by him that he had borrowed 10,000/- from the plaintiff but it was repaid.

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P.W.1 and P.W.2 were examined and Exts. A1 to A7 were marked on the side of the plaintiff. The defendant was examined as DW1. The courts below found that the execution of Ext. A1 promissory note could be proved by the

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R.S.A. No. 43 of 2012

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-:2:-

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plaintiff and that it was also held that Ext.A1 is supported by the consideration as alleged by the plaintiff.

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The learned counsel for the appellant submits that the lower appellate court held the case against the appellant herein after comparing the signature of the defendant appearing in the promissory note and in other papers which were available in the court and the finding so entered by the lower appellate court cannot be sustained. On going through the judgment it is seen that the lower appellate court has perused the records to compare the same with the signature of the defendants found in Ext.A1 only to satisfy the judicial conscience of the Judge and not to base the conclusion on such comparison.

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The learned counsel for the appellant has relied upon the decision of the Supreme Court in Thiruvengadam

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Pillai v. Navaneethammal and Another (2008 (4) SCC

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530) in support of his submission that the court should hesitate to venture a decision based on its own comparison

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R.S.A. No. 43 of 2012

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-:3:-

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of the disputed and admitted handwriting and signatures. The afore-quoted decision was rendered in a case where the comparison of the finger impression in a disputed document was in challenge. No doubt the court should not take up on itself the role of an expert. Sec.73 of the Evidence Act enables the court to compare the disputed writing with admitted or proved writings. But at the same time, it would a be hazardous task. These questions did not actually arise for consideration here. The courts below happened to peruse the document only to satisfy the judicial conscience as to the truthfulness of the case advanced by the plaintiff. Therefore, the aforesaid decision also does not come to the rescue of the appellant. The evidence given by P.W.1 and P.W. 2 was appreciated in the correct perspective and so the contention that the finding was entered into merely on a comparison of the document is not correct. It is also pertinent to note that when a suit notice was sent to the defendant he accepted the same without any demour. He

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-:4:-

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R.S.A. No. 43 of 2012

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did not send any reply refuting the allegations made in the suit notice. That is an added circumstance to find the case of the defendant untrue. Courts below have rightly decreed the suit.

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No substantial question of law is involved in this case. Hence, this appeal is only to be dismissed. In the result, this RSA is dismissed in limine.

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Dated this the 12th day of February, 2013.

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Sd/N.K.BALAKRISHNAN, JUDGE

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ani/

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/true copy/

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P.S. to Judge

Antoney v. Alphonsa

Case brief

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Antoney v. Alphonsa

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