Dismissed

Nirmalakumari v. E.Vishwanathan

Kerala HC18 Jan 2017RSA/1300/2016

Case brief

AI extract

What is this about?

In this Regular Second Appeal concerning a money suit, the High Court confirmed the lower courts' findings that the promissory note was executed by the appellant. The Court upheld the expert report and Section 73 comparison, dismissing the appellant's inconsistent pleas and allegations of forgery, ultimately confirming the decree.

What did the court decide?

Defendant granted three months time to pay the decree amount; appeal dismissed and pending interlocutory applications dismissed.

Nirmalakumari Vs E.Vishwanathan — Money Laundering | Kerala HC (2017)

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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 K.HARILAL

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WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA, 1938

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RSA.No. 1300 of 2016 (D)

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AGAINST THE JUDGMENT AND DECREE DATED 06-06-2016 IN AS 53/2015 of I ADDITIONAL DISTRICT COURT, KOZHIKODE.

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AGAINST THE JUDGMENT AND DECREE DATED 20-12-2014 IN OS 136/1999 of ADDITIONAL MUNSIFF'S COURT-I,KOZHIKODE.

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APPELLANT/APPELLANT/DEFENDANT:

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NIRMALAKUMARI,

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D/O. BALAKRISHNA PANICKER, AGED 58 YEARS, RESIDING AT HOUSE 2/318 "NIRMAL", KUTTIKADAVU ROAD P.O CHERUKULATHOOR, CHERUKULATHOOR AMSOM, PERINGALAM DESOM, KOZHIKODE TALUK.

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BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

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RESPONDENT/RESPONDENT/PLAINTIFF:

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E.VISHWANATHAN, S/O. UNNEERI,AGED 63 YEARS, RESIDING AT EDAVANASSERY, P.O VENGERI, VENGERI AMSOM, VARATHUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 010.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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-----------------------------------------------------R.S.A. No.1300 of 2016-D

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Dated this the 18^th day of January, 2017

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JUDGMENT

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The appellant is the defendant in O.S. No.136/1999 on the files of the Additional Munsiff's Court-I, Kozhikode, as well as the appellant in A.S. No.53/2015 on the files of the I Additional District Court, Kozhikode. The aforesaid suit was one for money.

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According to the plaintiff, the defendant and

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her husband approached the plaintiff and borrowed an amount of `50,000/- on 1/7/1998 and executed a promissory note agreeing to repay the amount on demand. The title deed of the property of the defendant was also handed over to the plaintiff. When the plaintiff demanded the amount borrowed

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R.S.A. No.1300 of 2016 -: 2 :-

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from him, the defendant evaded from repaying the amount. Hence the suit was filed.

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In the written statement, the defendant contended that she has no acquaintance with the plaintiff. She denied the averment that she had borrowed a sum of 50,000/- from the plaintiff. According to her, no promissory note was executed by her, as claimed by the plaintiff. The plaintiff had no source of money to lend a sum of 50,000/-. In fact, the defendant had borrowed a sum of `25,000/- from one Satheesh Chandran on 15/2/1998 and at that time, as security, the defendant had handed over signed blank papers wherein revenue stamp was affixed and also title deeds of the property of the defendant to him. Though she had repaid the said amount borrowed from the said Satheesh Chandran, he has not returned the signed stamp affixed papers or title deeds. The defendant had repaid the amount through her brother Prem Kumar and Satheesh Chandran made an assurance that the papers would

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R.S.A. No.1300 of 2016 -: 3 :-

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be handed over to Prem Kumar. Subsequently, a quarrel arose between Satheesh Chandran and Prem Kumar and due to the enmity between Satheesh Chandran and Prem Kumar, Satheesh Chandran forged the signed blank papers and created the promissory note and instituted the suit through the plaintiff. Thus, Satheesh Chandran is the man behind the suit.

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On the rival pleadings, both parties adduced evidence, consists of both oral and documentary. After considering the evidence, on record, the trial court rejected the contentions raised by the defendant and decreed the suit, as prayed for. In appeal, the appellate court also confirmed the findings of the trial court and dismissed the appeal. Thus, the concurrent findings, whereby the suit stands decreed are challenged in this Regular Second Appeal, on the basis of the questions raised in this appeal.

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Heard the learned counsel for the

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R.S.A. No.1300 of 2016 -: 4 :-

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appellant.

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According to the defendant, she had no money transaction with the plaintiff and she has not executed Ext.A1 promissory note in favour of the plaintiff; but she contended that in connection with money transaction with one Satheesh Chandran, she had handed over signed stamp affixed stamp papers and title deeds to him. Though she had repaid the said amount, the signed stamp affixed papers or the title deeds were not returned to her and the said Satheesh Chandran is the man behind the suit. Thus, the signature, in the promissory note, stands admitted by the defendant herself.

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To prove the transaction, the plaintiff himself was examined as P.W.1 and he has given evidence in tune with the averments in the plaint. Further, to prove the execution of Ext.A1 promissory note, P.W.2, a witness, has been examined and he also supported the case of the plaintiff. After evaluating the evidence given by the plaintiff, the courts below concurrently

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R.S.A. No.1300 of 2016 -: 5 :-

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found that there is no reason to doubt the evidence given by them. Being a Second Appeal, this Court is not inclined to re-appreciate the evidence of P.Ws.1 and 2, in the absence of any kind of perversity in the appreciation of their evidence.

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Then the question to be considered is, whether the defendant has discharged her burden by rebutting the evidence given by the plaintiff by establishing the alternative story pleaded by her, with the yardstick of preponderance of probability. The stand taken in the written statement is that the signature of the defendant obtained by Satheesh Chandran in the signed stamp affixed paper was misused to create the impugned promissory note. But, when a specific question was put to P.W.1, during the course of crossexamination, she denied the signature found in Ext.A1 promissory note also. Thus, as rightly observed by the courts below, she has given a go-bye to her earlier contention, in the written statement. Moreover, she has gone to the extent of denying her signature in the

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R.S.A. No.1300 of 2016 -: 6 :-

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Vakalath filed by her before the court below. Therefore, no reliance can be placed on her oral evidence, as regards the denial of signature found in Ext.A1 promissory note.

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Going by the impugned judgment, it could be seen that earlier, the suit was decreed, as per judgment dated 30/3/2002 and the defendant preferred an appeal before the lower appellate court and that appeal also was dismissed. Thereafter, she had preferred a Regular Second Appeal before this Court. In the appeal she contended that she had no opportunity to send the promissory note for expert's opinion and this Court accepted the plea and remanded the case back to the trial court, after setting aside the judgments and decrees under challenge. Thus, the remand was made for affording an opportunity to get expert's opinion about the signature of the defendant.

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After remand, the signature of the defendant was sent to expert for his opinion and the expert

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R.S.A. No.1300 of 2016 -: 7 :-

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furnished Ext.X1 report stating that the signature contained in Ext.A1 promissory note tallies with the standard signature and the specimen signature of the defendant. Thus, the expert's opinion shows that the signature in Ext.A1 promissory note is that of the defendant. But, even after getting the expert's opinion, the defendant was not amenable to accept the expert's opinion stating that the expert has no Degree in Forensic Science. But, it has come out, in evidence, that the expert has sufficient qualification in comparing the documents, as he had undergone sufficient training given by the Government and now he is working as an expert in the Forensic Science Laboratory, Trivandrum. Therefore, there is no reason to doubt the expertise of the expert. In the above view, the courts below are justified in rejecting the plea raised against the expert's opinion.

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That apart, the trial court, invoking the power under Sec.73 of the Indian Evidence Act, compared the signature of the defendant in Ext.A1 with her

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R.S.A. No.1300 of 2016 -: 8 :-

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standard and admitted signatures and found that Ext.A1 promissory note contains the signature of the defendant. Thus, it could be seen that the defendant has no consistent plea and no reliance can be placed on her oral evidence also.

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In the above analysis, the courts below are justified in finding that Ext.A1 Promissory Note is one executed by the defendant herself. I do not find any illegality or impropriety or perversity in any of the findings, whereby the courts below rejected the contentions raised by the defendant and accepted the plaintiff's case. Hence the concurrent findings of the courts below would stand confirmed. No question of law arises for consideration in this appeal.

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The learned counsel for the appellant/ defendant sought for some time to pay the amount.

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Having regard to the entire facts and circumstances of the case, the defendant is given three months time to pay back the decree amount.

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This Regular Second Appeal will stand dismissed.

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R.S.A. No.1300 of 2016

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-: 9 :-

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All pending interlocutory applications will also stand

dismissed.

Sd/-

(K. HARILAL, JUDGE)

Nan/

//true copy//

P.S. to Judge

Nirmalakumari v. E.Vishwanathan

Case brief

What is this about?

What did the court decide?

Nirmalakumari v. E.Vishwanathan

Case brief

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