The plaintiff in O.S.No.15/2004 who was successful in getting a decree for money from the trial court was non suited by the lower appellate court. Hence the appeal. 2. Shorn of unnecessary details, the suit was based on Ext.A1 promissory note dated 29.11.1998. According to the plaintiff, the defendant had borrowed a sum of Rs.1,00,000/- from him agreeing to repay the same with 12% interest and executed a promissory note. Subsequently, as part payment, a sum of Rs.10,000/- was paid on 06.06.2001. In spite of demand, the balance amount was not paid and hence the suit.
3. The defendant denied any financial transaction with the plaintiff. According to him, he was a subscriber to a chitty run by the S.N.D.P Sakha of which PW2 was the then President. He had bid the chitty and in order to receive the amount, he had to offer security. For the said purpose, he had entrusted certain signed blank papers to PW2. He would say that he paid a good portion of money to S.N.D.P Sakha and what remained was a little over Rs.1,400/-. When that amount was offered, PW2 is alleged to have told the defendant that he had misplaced the signed blank papers and he would search them out. Later the relationship between the defendant and PW2 became bitter and that caused PW2 to hand over one of the blank papers to PW1, plaintiff who has misutilised the same. He denied that he had made any part payment and also denied his signature on the reverse side of the promissory note. On the face of these contentions, he prayed for dismissal of the suit.
4. Issues were raised by the trial court and the parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and the documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant examined DWs 1 and 2 and had Exts.B1 and B2 marked.
5. The trial court was impressed by the evidence of PWs 1 and 2 and also the fact that the signature evidencing acknowledgment on the reverse side of Ext.A1 compares well with the one in promissory note and there is no reason to disbelieve PW1. The suit was accordingly decreed. The disappointed defendant carried the matter in appeal as A.S.No.92/2006 before the Sub Court, Ottapalam. The lower appellate court found several discrepancies and improbabilities in the evidence adduced by the plaintiff and also found that it could not be said that due execution of promissory note had been established. It also relied on Exts.B1 and B2 documents and went on to hold that in the light of these documents and facts and circumstances, the plaintiff had failed to establish his case and therefore allowed the appeal and dismissed the suit. Notice was issued on the following substantial questions of law:
1. Is a defendant in money suit based on promissory note who admits the signature and who contents that the promissory note was created on a blank signed paper is entitled to succeed without proving the factums and circumstances under which the signed blank papers were given?
2. Has not the lower appellate court gone wrong in setting aside the judgment and decree of the trial court based on documentary and oral evidence in a suit in which the demeanour of witnesses is relevant and important without giving any reason as to how the findings of the trial court are illegal or erroneous?
6. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in holding that execution of Ext.A1 promissory note has not been proved. It was contended by the learned counsel that the specific case put forward by the defendant was that the signature found on the promissory note is his signature but he had given a signed blank paper to PW2 which has been passed on to PW1. If that be the case, according to the learned counsel, the burden is on the defendant to show how the document had come into possession of PW1 and about the contents therein.
7. Apart from the above fact, learned counsel for the appellant went on to point out that due significance has not been given to the acknowledgment on the reverse side of Ext.A1. Even though the defendant disputed his signature thereon, a mere comparison of the signature would clearly reveal that it has been signed by the same person. It is contended that this is not a case where the defendant comes forward with a total denial. He was a subscriber to a kuri run by the S.N.D.P Sakha of which PW2 was the then President and he had subscribed to a kuri. His further case is that he had paid the installments due from him and an amount of Rs.1,400/- alone was due. If that be true, according to the learned counsel, the best evidence would have been the production of documents relating to the kuri transaction. Apart from the fact that the defendant has not produced any document to show that he was a subscriber to a kuri, he was also not cared to call upon the concerned S.N.D.P office bearers to produce the document relating to the running of the kuri. It is further contended that the court below omitted to notice the presumption available under Section 118 of the Negotiable Instruments Act. Some stray sentences from the evidence of PW1 have been given undue significance to non suit the plaintiff. Learned counsel also pointed out that no particular reasons are given to disbelieve PW2 whose evidence was found to be creditworthy by the trial court. When trial court finds a
witness to be credible, unless there are cogent reasons, it may not be appropriate for the lower court to simply say that the witness cannot be believed. For the said proposition, learned counsel relied on the decision in Narbada Prasad vs. Chhaganlal and others (AIR 1969 SC 395).
8. According to the learned counsel for the appellant, the trial court has considered the entire evidence on record and the court which had opportunity to watch the demeanour of witnesses had chosen to believe PWs 1 and 2 and grant a decree. There is nothing to show that the finding of the trial court is either perverse or contrary to the evidence on record. According to the learned counsel, even assuming that a different view may be possible, it was not proper on the part of the lower appellate court to interfere with the decree of the trial court.
9. Per contra, learned counsel appearing for the respondent pointed out that a reading of the evidence of PW1 would clearly show that he had no consistent case at all. He cleverly denied his signature in Ext.A1. But the signature on Exts.B1 and B2 is proved through the evidence of DW2. Learned counsel went on to point out that there is no suggestion to DW2 that he had an axe to grind against the plaintiff. It is significant to notice, according to the learned counsel, as noticed by the lower appellate court, that according to the plaintiff he borrowed money from Bank at 18% interest and then he is said to have given the same to the defendant at 12% interest. On the very face of it, the transaction is highly improbable. As regards raising of funds, there is also no consistency for the plaintiff as would be evident from the reading of his deposition and the contents of Ext.B1. Merely because the defendant has admitted his signature on the promissory note by itself is not a ground to come to the conclusion that the transaction is true.
10. Drawing attention to the evidence of PW1, learned counsel for the respondent pointed out that PW1 even goes to the extent of saying that the endorsement regarding acknowledgment was brought to him in writing by the defendant. This is improbable. Promissory note was with the plaintiff and the defendant could not have been in possession of the same to have the endorsement written by a person of his choice. It is here, according to the learned counsel, one has to note that the handwriting on the pro note and in the acknowledgment is of the same person which casts suspicion on the execution of the document. Merely by denying signature in Ext.B1, it does not follow that the defence set up is untrue.
11. Referring to the evidence of PW1 and PW2, it was contended by the learned counsel for the respondent that it has been accepted by these witnesses that the Sakha was running a chitty business. If the evidence of PW2 is believed, there is no reason to disbelieve the defendant. It is clear that S.N.D.P Sakha was in the habit of receiving signed blank papers from the subscribers to the chitty. Learned counsel went on to point out that the court cannot overlook the inherent improbabilities in the case and the lower appellate court has rightly found that the plaintiff has miserably failed to establish his case. According to the learned counsel, it could not be said that the findings are totally against the evidence on record. No substantial question of law arises for consideration of this Court under Section 100 of the Code of Civil Procedure and the appeal is only to be dismissed.
12. It is true that the defendant has admitted his signature on the pro note. But he has offered explanation for the same. It is also true that he has not either produced any document relating to chitty to which he is alleged to have subscribed or caused production of the same by the S.N.D.P Sakha of which PW2 was the President at the relevant time and DW2 was the President at the time of trial. One fact is clear from the evidence, that is S.N.D.P Sakha was in the habit of receiving blank signed papers from the subscribers.
13. The case put forward by the plaintiff is that the defendant brought a written pro note and received Rs.1,00,000/- from him agreeing to repay the same with 12% interest. In the evidence of PW1, he says that he had taken money from the Bank with 18% interest and given it to the defendant with 12% interest. He further says that he had paid huge interest to the Bank. Surprisingly enough he is magnanimous enough to waive interest from the defendant. This crucial aspect has been noticed by the lower appellate court. It is highly improbable that a person who had taken money from the Bank at 18% interest would have lent it to a close friend of his at 12% interest. Even assuming that that may happen, it is difficult to believe that the person who borrowed money from the Bank decided to waive interest altogether. His liability to Bank comes to a considerable amount. There is nothing to show that there was any such close association between the plaintiff and the defendant that the plaintiff would be so gracious to him. Merely because the signature is admitted in the pro note, it does not follow that its execution has been admitted.
14. It is true that the case put forward by the defendant is that he had no transaction with the plaintiff but he had handed over signed blank papers to PW2. No doubt PW2 denies the same. But, as already noticed, the evidence is clear to the effect that S.N.D.P Sakha was running a chitty at the time when PW2 was the President and it had the habit of receiving signed blank papers. In fact, PW2 says that he had received no such blank papers from the defendant. It is also difficult to believe that the endorsement relating to acknowledgment would have been brought written and got drawn up by the defendant.
15. Learned counsel appearing for the appellant attempted to point out that may be that when part payment was made, the defendant might have represented that he would get the payment endorsed by the same person who had written the pro note and it is possible that PW1 might have handed over the same to the defendant. It looks highly improbable. It is no doubt true that the signature on the face of Ext.A1 compares well with the signature on the reverse side of Ext.A1 relating to acknowledgment. But it is also significant to notice that the recital in the pro note and acknowledgment are in the handwriting of the same person. It is here that one has to notice that the plaintiff has stated that he has no idea about who had drawn up the pro note.
16. Coming to the source of funds, as already noticed, PW1 in his evidence has a case that he had taken the amount from the Bank. The defendant has sought production of Exts.B1 and B2 which are documents kept by the S.N.D.P Sakha concerned. Ext.B1, according to the defendant, is a complaint alleged to have been preferred by the plaintiff to the S.N.D.P Sakha. That is dated 10.11.2002. The genuineness of Ext.B1 is severely attacked by the learned counsel for the appellant. It was pointed out that the plaintiff has admitted his signature therein and there was no attempt from the side of the defendant to prove that the signature contained in Ext.B1 is that of the plaintiff.
17. Ext.B1 when taken in isolation, there may be some substance in the above contention. However, in order to satisfy the conscience of this Court, this Court made an attempt to compare the signature in the pro note and the signature found in Ext.B1 and it has found that there is close similarity between the two.
18. Apart from the above fact, the evidence of DW1 cannot be overlooked. DW1 is categoric before the court that Ext.B1 was in fact preferred by the plaintiff and the complaint preferred by the plaintiff was the subject matter of discussion in the meeting, minutes of which is evidenced by Ext.B2. He in no less terms says that the signature found in Ext.B2 is that of the plaintiff and that both the plaintiff and the defendant were present on the relevant date.
19. As rightly pointed out by the learned counsel for the respondent, there is no suggestion to DW2 that he had any axe to grind against the plaintiff. The above circumstances noticed from the evidence of DW2 and Exts.B1 and B2 goes a long way in favour of the defendant. The pro note, Ext.A1, is dated 29.11.1998. The acknowledgment is dated 06.06.2001 and the suit is filed on 31.01.2004. Ext.B1, as already noticed, is dated 10.11.2002. As rightly noticed by the lower appellate court, if, as a matter of fact, Ext.A1 was in fact executed by the defendant, that would have certainly found a place in Ext.B1. One must here notice the fact that the plaintiff has no case that the defendant had more than one monetary transaction with the plaintiff. If one goes by the contents of Ext.B1, it gives an entirely different picture regarding the transaction and the manner in which it had been done.
20. It is also difficult to believe that the plaintiff would hand over the pro note to the defendant to have the endorsement regarding the acknowledgment written by the same person who had written the pro note. At any rate, it is extremely difficult to believe that the plaintiff would not have enquired as to who the author was.
21. One also cannot omit to note that no notice was sent by the plaintiff calling upon the defendant to make the payment covered by Ext.A1 document. Learned counsel for the appellant contended that the suit had to be filed immediately as the defendant was making all preparations to dispose of his property. But, from the dates referred to above, this contention is difficult to accept. The acknowledgment, even assuming to be true, was on 06.06.2001 and the suit was filed on 31.01.2004. There is no whisper in the plaint that frequent demands were made to the defendant for payment or that the defendant had promised to return the amount borrowed by him.
22. On an evaluation of the entire evidence, it could not be said that the lower appellate court was totally unjustified in coming to the conclusion that there is want of evidence to determine that the pro note was executed as alleged by the plaintiff.
23. In the light of the discussion made above, the doubt entertained by the lower appellate court seems to be genuine. Even on preponderance of probabilities also, it is difficult to accept the case put forward by the plaintiff.
For the above reasons, this Court finds no grounds to interfere with the judgment of the lower appellate court. This appeal is without merits and it is accordingly dismissed. However, there will be no order as to costs.
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P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.