The High Court of Kerala allowed an appeal against a money recovery decree. The court set aside the lower court's judgment, finding the plaintiff's witnesses untrustworthy and the evidence regarding the loan and promissory note execution false, thus dismissing the suit.
The judgment and decree of the trial court were set aside, and the suit was dismissed with costs.
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 K.ABRAHAM MATHEW
MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939
AS.No. 116 of 2003
AGAINST THE DECREE AND JUDGMENT IN OS 504/1998 OF II ADDL.SUB COURT, ERNAKULAM DATED 25-09-2001
APPELLANT/DEFENDANT
K.K.SUNILKUMAR
S/O. KUMARAN, AGED 34 YEARS, RESIDING AT PUTHENMARAVATTICAL, IRUMPANAM DESOM, THIRUVANKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.
BY ADVS.SRI.K.S.BABU SMT.N.SUDHA
RESPONDENT/PLAINTIFF:
M.N.ANILKUMAR, AGED 29 YEARS, S/O. NEELAKANDA PILLAI, MUTTURUTHIYIL HOUSE, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, KOCHI-682 024.
BY ADV. SRI.JOSE PALLATTUKARAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
cms
K.ABRAHAM MATHEW J.
A.S.No.116 of 2003
Dated this the 5th day of March, 2018
JUDGMENT
The plaintiff against whom a decree for recovery of money has been passed in the suit instituted by the respondent is the appellant. The respondent alleged that on 13.4.1998 the appellant for his business purpose borrowed from him Rs.1,50,000/- executing a promissory note undertaking to repay the amount with interest at 18% per annum and in spite of demand he failed to pay the amount. He prayed for recovery of the amount with interest at 18% per annum. The appellant contended that he did not borrow money from the respondent and did not execute the promissory note relied on by the latter. His version is that he had certain money transactions with the respondent's brother and in connection with those transactions he had given him signed and stamped blank papers and other papers and the promissory note produced in the case was prepared on one of those papers. The trial court decreed the suit as prayed for. This is assailed in this appeal.
a) Did the appellant borrow Rs.1,50,000/- from the respondent executing
Ext A1 promissory note undertaking to repay it with interest at 18% per annum ?
b) Whether the decree of the lower court is liable to be set aside?
Points
A.S.No.116 of 2003 2
to the appellant demanding payment of the amount shown in Ext A1 promissory note with interest at 18% per annum. Within seven days from the date of receipt of the notice. It was received by the appellant on 12.9.1998 as seen from Ext A2(a) postal acknowledgment card. Even before the receipt of the notice the respondent instituted the suit. The reason stated is that he knew that the appellant was making attempts to dispose of his property.
1961 SC 1316) a three Judge bench of the Supreme Court held that to rebut the presumption it is not necessary for the defendant to adduce any evidence. He can rely on the weakness of the plaintiff's case, the probabilities in the case
A.S.No.116 of 2003 3
inferences that may be drawn from the facts available in the case including the facts and circumstances brought out in the evidence of the plaintiff.
A.S.No.116 of 2003 4
not have the income to pay income tax or even sales tax. He admitted that his bank account would not show withdrawal of any amount. According to him, he had only Rs.30,000/- with him on the date of the transaction, Rs.1,20,000/was the amount PW3 who had borrowed from him repaid. It dropped from PW1 in the cross-examination that he maintained an account at his shop. But he did not produce it. As observed by the Supreme Court in Kundan Lal Rallaram v. Custodian Evacuee Property, Bombay (AIR 1961 SC 1316) the inference is that if he had produced it, it would have been unfavourable to him.
A.S.No.116 of 2003 5
control room was with an Assistant Commissioner of Police. The testimony of DW3 and the facts noted in Ext X2 Roaster of Duty maintained at the control room for April 1998 undoubtedly proves that PW2 was on duty on working arrangement in Kerala Police Association during the whole month except a few days, on which dates he was on some other duty. Ext X1 General Diary abstract of police control room proves that on 13.4.1998 PW2 was on duty in Kerala Police Association Office and his duty started at 8 in the morning. What more is necessary to prove that the evidence of PW2 and PW3 is false. PW2 gave false evidence that he was on duty in the police control room from 10 a.m to 5 p.m. He is an untrustworthy witness. It follows that the evidence of PW3 that just before 5 p.m he met PW3 at police station at Thevara and he took PW3 also along with him to the house of PW1 also is not true.
A.S.No.116 of 2003 6
giving false evidence and they gave false evidence.
A.S.No.116 of 2003 7
space between the lines in it except the last two lines is double; the space between the last two lines is single. It is evident that there was effort to accommodate the contents, which indicates that it was written up on an already signed and stamped papers.
A.S.No.116 of 2003 8
false. The testimony of PW2 proves that he and PW3 were frequent visitors in the house of PW1. PW1 would say that PW2 and PW3 were very close to his brother Soman. Even PW2 knew about the transactions between the appellant and Soman. Still PW1 would say that he did know anything about those transactions. This is unbelievable. He wanted to suppress those transactions, which is material and relevant in the context of the case.
In the result, this appeal is allowed with costs. The judgment and the decree of the trial court are set aside and the suit is dismissed with costs. Since the respondent has been directed to pay costs to the appellant, the court
A.S.No.116 of 2003 9
fees payable on the appeal memorandum shall be recovered from the respondent. The registry shall issue a certificate to the District Collector concerned to recover the court fees from him.
K.ABRAHAM MATHEW JUDGE
cms
3 issues framed by the court
Whether the appellant borrowed money from the respondent and executed the promissory note?
Whether the decree of the lower court is liable to be set aside due to untrustworthy evidence?
Whether the presumption under Section 118(a) of the Negotiable Instruments Act was rebutted?
Colour shows how this judgement treated each authority
Kundan Lal Rallaram v. Custodian Evacuee PropertyDistinguished¶30
Kundan Lal Rallaram v. Custodian Evacuee Property, Bombay (AIR 1961 SC 1316) · Who else cites this
3 provisions across 2 enactments
K.K.SUNILKUMAR
M.N.ANILKUMAR
K.ABRAHAM MATHEW
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
