Girija Sivaraman (Died) Rep.By P/A.Holder Rashm vs Ideal Bankers

Sathish Ninan, J

Challenging the dismissal of a suit for money, the plaintiff is in appeal.

According to the plaintiff, the first defendant firm borrowed an amount of ₹ 5 lakhs from her on 10.08.2001. The second defendant is the Managing Partner of the first defendant firm. The third defendant and the predecessor of defendants 4 to 6 viz. late Dharmajan are its partners. To secure the repayment of amount, the second defendant as the Managing Partner executed Ext.A3 promissory note dated 10.08.2001 in favour of the plaintiff. In spite of repeated demands, the amount was not repaid. Accordingly the suit was filed.

The second defendant remained ex parte. The third defendant, and defendants 4 to 6 jointly, filed written statements. They denied the alleged transaction. They contended that, though a firm in the name of the first defendant was registered, it never functioned. The second defendant has business in the name of “Ideal Investments”. The plaintiff and the second defendant are friends. Ext.A3 promissory note has been fraudulently created. It was also alleged that the plaintiff does not have the financial capacity to pay the amount as claimed.

The trial court held that the transaction is not proved and accordingly dismissed the suit.

I have heard Sri.P.Vijayakumar, the learned counsel for the appellant and Sri.Santhosh P. Poduval, the learned counsel for the contesting defendants.

The following points arise for determination :-

(i) Is the evidence on record sufficient to prove due execution of Ext.A3 promissory note ?

(ii) Is the finding of the trial court that the transaction as claimed by the plaintiff is not proved on the materials, sustainable?

In spite of the denial of Ext.A3 promissory note, the allegation with regard to conduct of business by the defendants, and the very transaction as alleged, the plaintiff is not examined. The daughter of the plaintiff was given a power of attorney as Ext.A1 and she was examined as PW1. The reason given for non-examination of the plaintiff is that she is suffering from kidney disease. In support of the same, Ext.A9 hospital discharge summary of the plaintiff is produced. Ext.A9 indicates that she had undergone some surgery on 02.04.2008 and was discharged on 10.04.2008. The trial in the suit was held only on July 2010 and PW1 was examined on 09.07.2010. There is no material to find that, after the surgery reported under Ext.A9, the plaintiff was suffering from any serious illness disabling her from giving evidence. No medical records in the said regard were produced. As is seen from Ext.A9, the plaintiff was aged only 46 years in the year 2008. In the circumstances, the non-appearance of the original plaintiff cannot be brushed aside as insignificant.

PW1, the daughter of the plaintiff, claims that she was also present at the time of the alleged transaction and had witnessed the execution of the promissory note and the payment of the amount. PW1 further deposed that the execution was witnessed by one Sreedharan Shyam, Santhosh and her husband Krishna Kumar. None of them are examined. Ext.A3 promissory note contains the signature of only the second defendant who, as noticed earlier, remained ex parte. It is the definite contention of the defendants that, the plaintiff's family and the second defendant are having good relationship. It is also alleged that the second defendant has some business to which the other defendants are not in any manner connected. It is also contended that, a business concern in the name of the first defendant with defendant 3 and the predecessor in interest of defendants 4 to 6 never functioned.

The other evidence relied on by the plaintiff to prove the execution of Ext.A3 promissory note is the evidence of PW2, who claimed to have been present, by chance, witnessing the transaction. The Court has rightly noticed that the evidence of PWs.1 and 2 does not inspire confidence and is insufficient to prove due execution of Ext.A3. The learned counsel for the appellant-plaintiff would argue that the presumption under Section 118 of the Negotiable Instruments Act is liable to be drawn and it is for the defendants to prove that the instrument is not supported by consideration. As noticed, the evidence on record is insufficient to prove the due execution of the promissory note. In the back ground of the contention of the defendants as noticed above, even if Ext.A3 promissory note contains the signature of the second defendant, that by itself will not be sufficient to prove its due execution and also the genuineness of the transaction. At any rate, both sides having adduced evidence, it is for the Court to appreciate the entire evidence on record and consider the probabilities.

Even in the written statement of the contesting defendants, it was specifically contended that the plaintiff did not have the financial capacity to raise the amount claimed to have been advanced. The relevant contention reads thus :-

Regarding the source, PW1 in cross-examination would depose that the plaintiff had funds with her as obtained by sale of the property which belonged to her and also the income from agriculture. She deposed that the sale was in December 2001. However, the transaction under Ext.A3 is claimed to have been in August 2001. The witness immediately added that, prior to the sale, advance consideration was paid. She would depose that she does not remember the name of the purchaser. According to her, the sale consideration was ₹ 2,50,000/-. If it is the claim of PW1 that it is the advance sale consideration that was utilised for payment of amount under Ext.A3, then it is to be noticed that though the amount allegedly paid under Ext.A3 is ₹ 5 lakhs even the total sale consideration alleged is only ₹ 2.5 lakhs. She admits that the mother did not have even a Bank account. There is no evidence to prove the alleged sale. There is no evidence to prove income if any from agriculture. PW1 claims that at the time of payment, her husband and father were present. None of them are examined. PW1 recollected that the amount was paid in fifty bundles of ₹ 100/-. The evidence is no doubt artificial. PW1 has categorically admitted that her husband and the second defendant are friends. She also admitted that her mother, the original plaintiff, is not paying income tax. Though she claims that there are materials to show that the original plaintiff had sufficient funds during the period 2001, no documents are produced. In further cross-examination of PW1 she would state that, portion of the amount was obtained from one Mamootty of Vettukad with regard to sale of plantains. She would depose that the said Mamootty had paid advance amounts towards purchase of plantains for the next year also. The said version is unbelievable. During the course of cross-examination PW1 put forward a further case that portion of the amount was raised by sale of gold. There is no reason why the plaintiff should sell gold and grant loan to the defendants. It needs no further elaboration to hold that the evidence of PW1 cannot be relied on and accepted. There is no evidence to find that the plaintiff had source/funds to pay the amount as claimed by her.

The trial court has appreciated the evidence on record in its entirety in the correct perspective. The court was right in having held against the alleged transaction. The finding warrants no interference. The decree and judgment of the trial court is only to be affirmed.

Appeal fails and is dismissed. No costs.