GOVINDAN LAKSHMANAN Vs. SARADA PREMA

JUDGEMENT

(1.) The sole defendant in OS 25 of 1986 of the Subordinate Judge's Court, Kottarakkara is the appellant. The appeal is directed against the judgment and decree of the Trial Court decreeing the suit for a sum of Rs. 1,05,000/- together with interest at 6% on the principal sum of Rs. 1,00,000/- from the date of suit till realisation from the appellant - defendant and his assets.

(2.) Facts:- The plaintiff is the wife of the nephew of the appellant. The suit was one for money due under Ext. A1 promissory note. The plaintiff's case is that the defendant borrowed a sum of Rs. 1,00,000/- from her on 28.10.1985 by executing Ext. A1 demand promissory note as security in his own handwriting and signature after receiving two cheques drawn on Indian Overseas Bank, Ezhukone Branch, undertaking to repay the amount together with 12% interest as and when demanded. Inspite of repeated demands made by the plaintiff to return the amount, defendant did not pay the amount. Mediation having failed, Ext. A-4 lawyer notice was sent on 22.3.1996. But it was returned unserved with the endorsement 'refused'. Hence, the instant suit.

(3.) The defendant filed a written statement denying plaint averments and contending inter alia that he had not borrowed any money from the plaintiff and that in fact there was no occasion for him to borrow the money. He has stated that he only knows that the plaintiff is the wife of one Suseelan, the son of his sister Sarada. According to the defendant, he is a bachelor and he was residing along with his sister Sarada - mother inlaw of the plaintiff. He purchased one acre of land comprised in Survey No. 89/20B in the name of his sister and that property is in his possession. The document relating to that property has been taken by the sister stating that she wanted to show the sale deed to her husband for perusal. There was monetary transactions between him and his sister by which he had advanced amounts to her on various occasions totaling to Rs. 99,900/- and when he demanded re-payment of the said amount, he was told that the same will be paid after the marriage of her son Suseelan, the husband of the plaintiff. According to him, he had sufficient bank balance and there was no necessity to borrow any money from the plaintiff. The specific case set up by the defendant is that on 27.10.1985 his sister and her husband had gone to his residence and entrusted two cheques dated 28.10.1985 for an amount of Rs. 99,900/- towards the amount due to him. It was encashed by him on 28.10.1985. According to the defendant in January 1986 his sister and her husband asked him to surrender one acre of land purchased by him in the name of his sister as she has repaid the amount due to him. They also wanted him to settle his property in favour of his sister. The defendants then thought of settling the property in favour of his relatives excluding his sister and her children. His sister and her husband on coming to know of it, forged a promissory note for a sum of Rs. 1,00,000/- and on the basis of the same, the suit is filed. The defendant has denied that any notice has been issued to him as stated in the plaint. It is further contended that the case set up by the plaintiff is false from the fact that the promissory note is for a sum of Rs. 1,00,000/- whereas the amount covered by the two cheques is for a sum of Rs. 99,900/-. The plaintiff filed a replication denying the averments contained in the written statement. It was stated that she issued the cheques drawn on the Indian Overseas Bank, Ezhukone Branch for an amount of Rs. 99,900/- and also paid a sum of Rs. 100/- in cash. She has categorically denied any knowledge regarding any financial assistance given by the defendant to his sister, viz, her mother inlaw. The contention that the cheques in question were given to the defendant by his sister and her husband as repayment of the money received by his sister from the defendant was flatly denied as totally incorrect and devoid of any bona fides. According to the plaintiff, she is not aware of the bank balance of the defendant and she is not aware whether the defendant's sister and her husband have interest in getting his property or any part thereof. She reiterated the circumstances under which the cheques were issued by her to the defendant and the promissory note executed by him. The evidence in the case consists of the oral testimony of PWs. 1 to 3 and documentary evidence Exts. A1 to A6 on the side of the plaintiff and the oral evidence of DW-1 and documentary evidence Exts. B1 to B6 on the side of the defendant. The Trial Court on a consideration of evidence on record and the pleadings and on comparison of the disputed signature on Ext. A1 with the admitted signatures in Exts. B5 and B6, decreed the suit as prayed for after entering a finding that the promissory note has been executed by the defendant and the same is supported by consideration.