Allowed

Anoj S. v. Viswanatha Pillai

Kerala HC22 Aug 2019RFA/698/2012

Case brief

AI extract

What is this about?

In this regular first appeal regarding a money recovery suit based on a promissory note, the High Court set aside the trial court's judgment dismissing the plaintiff's case. Noting insufficient evidence of payment and conflicting thumb impression evidence, the Court remanded the case for fresh disposal. The fee on the appeal was refunded.

What did the court decide?

The decree and judgment of the trial court are set aside; the suit is remanded for fresh disposal.

Anoj S. Vs Viswanatha Pillai — Execution and Attachment | Kerala HC (2019)

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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 SATHISH NINAN

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THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941

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RFA.No.698 OF 2012

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AGAINST THE JUDGMENT AND DECREE IN OS 742/2010 DATED 17-03-2012 OF PRINCIPAL SUB COURT, KOTTAYAM

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APPELLANT/PLAINTIFF:

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ANOJ S., S/O PRABHAKARAN NAIR, AGED 39 YEARS, SWAMIARMADOM, THIRUNAKKARA KARA, KOTTAYAM VILLAGE, KOTTAYAM.

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BY ADV. SRI. SABU S.(KALLARAMOOLA)

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RESPONDENT/DEFENDANT:

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VISWANATHA PILLAI., PADINJARRPORUTTU HOUSE, THURUTHICKADU KARA, KALLOOPPARA VILLAGE,PATHANAMTHITTA DISTRICT-689597.

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R1 BY ADV. SRI.DOMSON J.VATTAKUZHY R1 BY ADV. SRI.MATHEW JOHN K

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, THE COURT ON 22-08-2019 DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RFA No.698 of 2012

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= = = = = = = = = = = = = = = = = = Dated this the 22^nd day of August, 2019

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J U D G M E N T

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The unsuccessful plaintiff in a suit for recovery of money is the appellant.

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The suit is based on Ext.A1 promissory note. According to the plaintiff, on 15.03.2010 the defendant borrowed an amount of 6 lakhs from the plaintiff and executed Ext.A1 promissory note. The suit is filed on the promissory note. The defendant though admits his signature in Ext.A1, denies the genuineness of the promissory note. According to him, in connection with borrowal of an amount of 60,000/- from one Preethy Mathew with whom he had acquaintance, a signed blank paper, original title deed relating to his property(Ext.A2) and certified copy of the prior deed (Ext.A3) were handed over to DW3. In the course of some transaction between DW3 and the plaintiff, the same happened to come to the hands of the plaintiff and is misused, is the

RFA No.698 of 2012

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contention.

The trial court held against Ext.A1 and dismissed the suit. Aggrieved, the plaintiff is in appeal.

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Heard learned counsel on either sides.

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Admittedly, the plaintiff is doing a finance business under the name and style “Kairali Finance”. Though `6 lakhs is claimed to have been advanced to the defendant on 15.03.2010, the plaintiff has not produced any evidence regarding payment of the said amount. The accounts relating to the transaction has not been produced. However, he claims that the amounts were not advanced from his business account. He being a financier, the said contention is difficult to be accepted.

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The plaintiff as PW1 has claimed that prior to Ext.A1, there was no transaction with the defendant. However, the defendant has produced Ext.B1 notice issued on behalf of the plaintiff by his then lawyer (DW2). Ext.B1 is issued demanding payment of amounts allegedly borrowed under a promissory note. Ext.B1 is dated 15.12.07. This is

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RFA No.698 of 2012

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:- 3 :-

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relied upon by the defendant to contend that the plaintiffs claim is not true. The advocate who issued Ext.B1 was examined as DW2. However, she has not accepted the issuance of Ext.B1 notice, though she admitted that the signatures in Ext.B1 appears similar to that of her's. The claim of the defendant is that the notice was received by ordinary post. It is difficult to believe that a lawyer notice was send by ordinary post. Defendant claims that on receipt of Ext.B1 it was entrusted to Preethy and was handed over back to him on the eve of his examination in court. The said statements cannot be easily accepted. The evidence adduced by either sides is not satisfactory for a proper disposal of the case.

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The specific case is that a signed blank paper was entrusted to Preethy. However, Exhibit A1 contains a thumb impression. The thumb impression is specifically put to the defendant when he is examined as DW1, but it is denied. Therefore, proof of the thumb impression will have much relevance in

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deciding upon the plaint claim. In the

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RFA No.698 of 2012

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:- 4 :-

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circumstances I think it appropriate to afford an opportunity to the plaintiff to have the claim substantiated by proving the thumb impression in Ext.A1. Both sides could be granted opportunity to adduce further evidence.

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In the circumstances, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for fresh disposal in the light of the observations made above. Parties to appear before the trial court on 16.09.2019.

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The court fee paid on the memorandum of appeal shall be refunded to the appellant.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Anoj S. v. Viswanatha Pillai

Case brief

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Anoj S. v. Viswanatha Pillai

Case brief

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