Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE12H DAY OF FEBRUARY201423RD MAGHA, 1935 RFA.No. 29 of 2008 ( ) ----------------------- AGAINST THE JUDGMENT
IN OS3301992 of SUB COURT, ATTINGAL ===================== APPELLANT/DEFENDANT: ------------------------------------- G.BRAHMANANDAN, S/O. GOPALAN VAIDYAN PANKAJA VILASOM, KADAKOM, CHIRAYINKEEZHU DESOM & VILLAGE, THIRUVANANTHAPURAM DIST. BY SRI.M.R.RAJESH RESPONDENT/PLAINTIFF: -------------------------------------- D. SUNILKUMAR, S/O. DIVAKARAN, DIVASADANAM NELLIKKODU, THIRUNARAYANAPURAM DESOM, OTTOOR VILLAGE, THIRUVANANTHAPURAM DIST. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER:- V.SATHYARAJAN, S/O.VASU, PUTHENVILA VEEDU, NELLIKKODU THIRUNARAYANAPURAM DESOM, OTTOOR VILLAGE THIRUVANANTHAPURAM DISTRICT BY ADV. K.P.DANDAPANI (SENIOR) IN CMCP THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON0602-2014 , THE COURT ON1202-2014 DELIVERED THE FOLLOWING: SD S.S. SATHEESACHANDRAN, J., --------------------------------------- R.F.A. No.29 OF2008--------------------------------------- Dated this the 12th day of February, 2014 JUDGMENT
Appeal is by the defendant against the judgment and decree in O.S.No. 330/1992 passed by the learned Sub Judge, Attingal. Suit was for money based on a promissory note. Suit after trial was decreed. Aggrieved, the defendant has preferred this appeal.
2. Short facts necessary for disposal of the appeal can be summed up thus: Plaintiff's case is that defendant availed a loan of Rs.70,000/- from him and executed a pronote in his favour for such sum agreeing to pay the sum as and when demanded. However, on demand, even after issuing a notice, the amount was not paid, and, hence, the suit was filed claiming a sum of Rs.94,923.83 with interest on the principal sum. Resisting the suit defendant contended that he had no transaction with plaintiff and he was a total stranger to him. Defendant had executed a document in favour of one Anilkumar at the instance of one Rajan employed R.F.A.No. 29/2008 2 as a Section Officer in Public Service Commission, towards security for the sum collected on his behalf from various persons in different parts of the State. Pronote on which the suit is filed was obtained and collected by Rajan from him, was his case. There was no transaction with plaintiff and no money was borrowed from him executing the pronote, was the case of defendant contending that he had no knowledge of the transactions carried out by Rajan though on his behalf he collected money from several persons.
3. Previously, after trial, plaintiff was nonsuited holding that he had failed to prove execution and passing of consideration under the pronote. Defendant and his witness alone had been then examined. Appeal filed by the plaintiff was allowed, and setting aside the decree of dismissal case was remanded providing opportunity to him to give evidence to substantiate the suit claim. On such remission, plaintiff examined his power of attorney (PW1) and two witnesses (PW2 and PW3) and exhibited A1 to A7. Evidence of defendant consisted of the materials produced earlier, DW1 and DW2 and Exhibits B1 to B9. R.F.A.No. 29/2008 3 X1, a ledger copy produced by PW3 was also exhibited. Learned sub judge appreciating the facts, circumstances and evidence in the case upheld the claim of plaintiff under Ext.A1 pronote and negatived the challenges raised by defendant. Suit claim of plaintiff was allowed granting him a decree for a sum of Rs.94,923/- with interest @ 12% per annum on the principal sum from the date of suit till the date of judgment and thereafter @ 6% till realisation.
4. Defendant had contended that Ext.A1 was given as security to one Rajan, who was examined as DW2 in the case. Rajan employed as a Section Officer in the secret wing of Public Service Commission through defendant collected amounts from persons in different parts of the State, and, to secure the sum so collected he had taken a pronote from him, was his case. He also contended that he was not aware of the nature of transaction carried by Rajan, and the pronote given was signed and handed over at the residence of Rajan in Thiruvananthapuram. That was canvassed to question the jurisdiction of the court also. Rajan examined as DW2 stated that he is the brother-in-law of plaintiff. R.F.A.No. 29/2008 4 He repudiated the case of defendant stating that he had no transaction with him. Plaintiff, after remission, examined his power of attorney as PW1, and a head load worker as PW2. Both of them asserted that Ext.A1 was executed by defendant at the shop of plaintiff collecting a loan from him. The court below appreciating the materials has concluded that Ext.A1 was executed and handed over at the time and place alleged by plaintiff. In Ext.A1 with date place is also recorded and that was relied by learned sub judge to hold that the challenge over jurisdiction set up by defendant was meritless. Holding that the evidence tendered by plaintiff through PW1 to PW3 convincingly established the claim canvassed by him in the suit and that the defences raised by defendant are false, learned sub judge decreed the suit.
5. Order of remand passed by this Court in the appeal preferred by plaintiff against the decree of dismissal rendered in the suit earlier would show that appellant/plaintiff, who then had not adduced evidence sought for an opportunity to give evidence conceding that the burden to establish the suit claim proving the R.F.A.No. 29/2008 5 execution and also passing of consideration was on him. Acceding to the request setting aside the decree of dismissal case was remanded. The question emerging for consideration is whether plaintiff has discharged the burden cast upon him to get a decree on Ext.A1 pronote. Ext.A1 note was written and signed by him, but, as security in a transaction with another person, DW2, the defence canvassed by defendant would not amount to execution of pronote. Even if the defence pleaded by him was false that would not relieve the plaintiff from establishing both execution and also passing of consideration under the pronote to sustain his claim. Has he established both the above ingredients, proof of which are necessary for getting a decree on Ext.A1 pronote, is the question to be considered.
6. PW1 is the power of attorney holder of plaintiff, who, when trial proceeded was employed in a Gulf country. PW1, power of attorney and also PW2, a head load worker, both of them, asserted of witnessing the transaction between plaintiff and defendant at the shop of plaintiff on 30.12.1989, with the defendant collecting a loan from plaintiff and executing a R.F.A.No. 29/2008 6 pronote. Evidence of these two witnesses over execution of pronote by defendant would not be sufficient to establish the suit claim, for which proof over passing of consideration under the note was essential. Being aware of that plaintiff had tendered Ext.A6 chitty pass book and examined PW3, manager of KSFE branch, from where he collected chitty amount as a subscriber. Through PW3 ledger copy showing the chitty transaction and prizing of chitty by him was tendered to establish that he was in possession of funds and that was provided as loan. Ext.A6 does not give any indication when chitty was prized. However, the entries in Ext.X1 ledger copy would show that chitty was prized nearly ten months before the transaction covered by Ext.A1 pronote. Looking into Ext.A6 and X1, it is seen, that plaintiff was substituted when subscriber who joined the chitty committed default after a few instalments of the chitty was over. Defaulted chitty of that subscriber was put in auction and that was obtained by plaintiff. Auction date is shown as 18.11.1988. Entries in Ext.X1 would show that plaintiff prizing the chitty collected the prize amount of Rs.60,220.25 by cheque. Date of the cheque R.F.A.No. 29/2008 7 and also receipt of payment was on 13.01.1989. Ext.A1 pronote for the value of Rs.70,000/- is dated 30.12.1989, that is more than eleven months after prizing of the chitty. PW1, power of attorney of plaintiff, other than claiming of witnessing the transaction over execution of Ext.A1 pronote by defendant has no knowledge about the source of plaintiff, nor over the passing of consideration under the note. His evidence is that plaintiff had told him that chitty amount collected was given to the defendant.
7. Where execution of Ext.A1 pronote was disputed plaintiff has to prove not only execution, but also, consideration. Plaintiff examined PW3 and also exhibited Exts.A6 and X1 to prove the passing of consideration setting forth a case that chitty amount prized by him was paid as loan. Chitty was prized nearly eleven months ago before the transaction under Ext.A1. Plaintiff has failed to prove passing of consideration under Ext.A1 pronote. Defendant has set up a false defence to resist the suit claim and the defence pleaded producing some documentary material as well, would show that he had some shady dealings with DW2 would not enable the plaintiff to get a decree without establishing R.F.A.No. 29/2008 8 both the ingredients, execution and passing of consideration under Ext.A1 pronote. In a case of this nature evidence tendered by PW1, power of attorney of plaintiff, and PW2, both having no direct knowledge over the transaction, is not sufficient to show that plaintiff has discharged his burden of proving the passing of consideration. Evidence tendered through PW3 and also Exts.A6 and X1, no way assisted the plaintiff in discharging his onus in proving the passing of consideration, and, without establishing it no decree can be granted in his favour on the suit claim set up over Ext.A1 pronote. Decree passed by court below in the above circumstances is liable to be reversed and plaintiff is to be non- suited. Appeal is allowed setting aside the decree passed by court below. Suit shall stand dismissed. Both parties are directed to suffer their costs. Sd/- S.S. SATHEESACHANDRAN JUDGE sd // True Copy // P.A. to Judge