CHRISTHUDAS Vs. VIDHYADHARAN ALIAS VITHY

JUDGEMENT

(1.) Defendant in OS No. 355 of 1993 on the file of the Subordinate Judge's Court, Neyyattinkara is the appellant Appeal is filed against the judgment and decree passed by the Court below allowing the respondent plaintiff to recover an amount of Rs. 77837/- with interest at 6% per annum from the appellant. Respondent filed the suit alleging that the appellant borrowed an amount of Rs. 77,837/- from him on 02/11/1988 executing a promissory note. It was contended that the appellant had agreed to pay interest at the rate of 11.5% and the promissory note was executed in the handwriting of the appellant himself. It was further averred that notice was issued but the same was returned unserved. Hence the suit.

(2.) Initially the appellant filed a written statement contending that the name of the plaintiff given in the cause title is not correct. It was contended that the appellant did not receive any amount from the respondent on 02/11/1988 and it was specifically contended that the respondent was not possessed of any means to pay the amount mentioned in the promissory note. It was further contended that there was material alteration in the document and as such the claim based on such a document was not maintainable. The claim for interest was also disputed. In paragraphs 7, 8 and 9 of the written statement it was repeatedly stated that the appellant has not received any amount. Subsequently the written statement was amended stating that respondent had borrowed huge amounts from the appellant and from others. Respondent was working in Muscat and came back to India in the year 1988. He wanted to suppress the fact that he was indebted to others and wanted to establish that he is possessed of wealth before his wife and father in law. He wanted to convince his father in law that the appellant had borrowed the amount to the tune of Rs.77,837/- at various dates and that much amount was due from him. Only to help the respondent and due to the close relationship the appellant executed Ext. A1 promissory note and it was not supported by any consideration at all. It was contended that Ext. A1 was written in the presence of one S. Radhakrishnan, T. Rajasekharan, P. Rajasekharan etc. It was contended that a relative of the respondent was the first attestor and subsequently the name of one Ayyappan Asari who was an employee of the respondent was also written as attestor. According to the appellant, Ayyappan Asari was not present when the promissory note was written. The Trial Court, after considering the evidence found that the presumption is that the promissory note was executed by the appellant in favour of the respondent and appellant failed to discharge that presumption. Hence he was liable to pay the amount covered by the promissory note. Challenging that judgment and decree, this appeal is filed.

(3.) Learned counsel appearing for the appellant has strenuously argued before me that the finding of the Court below that the appellant borrowed an amount of Rs. 77,837/- on 02/11/1998 is not supported by any evidence. On the other hand, the appellant had produced convincing evidence before the Court below to establish that the respondent has no means to advance the amount and it was only written to convince his father in law that the respondent was possessed of sufficient means. In the plaint the specific case put forward by the respondent was that the appellant borrowed an amount of Rs.77,837/- on 02/11/1998 and executed a promissory note. But there is nothing in Ext. A1 promissory note to show that the amount was paid to the appellant on the date. All that is stated is that the appellant received an amount of Rs.77,837/- and it will be returned with 11.5 %. Respondent was examined as PW 1 According to the respondent, appellant demanded an amount of Rs. 80,000/- and he was having only an amount of Rs.77,837.30 and initially the amount was written in figures and then he gave 30 paise also. Hence 30 paise was written in words but subsequently it was scored off. A reading of Ext. A1 promissory note shows that the case put forward by the respondent that he paid an amount of Rs.77,837.30 when the appellant made a demand for Rs.80,000/- cannot be accepted. If the demand was for Rs.80,000/- normally one would expect the respondent to pay either Rs.77,830/- or 77,850/- but not Rs.77,837.30. To prove the transaction plaintiff examined PW 2. He gave evidence to the effect that respondent gave the appellant 7 bundles of 100 rupee denomination, 78 notes of 100 rupee denomination and 37 one rupee note and three ten paise coins. The evidence of PW 2 shows that he was more loyal than the king. Though he distinctly remembers the denomination of the currencies and even the coins handed over, he does not know who was the owner of the building in which Vithys Advertisers Cottage was housed. He does not remember the date of birth of his child. According to PW 2, he was not married but he is having a wife. He does not remember the date of death of his mother. He does not remember various important dates; but he distinctly remembers even the date of Ext. A1. His evidence is highly artificial. Court below has not considered the oral evidence of PW 2 in its real perspective.