In the case on hand, the suit was filed on 8.9.2010. On
receipt of summons, the appellant entered appearance through
counsel, on 13.10.2010. Thereafter, on 22.10.2011, he filed a
written statement raising a plea of discharge. However, no document
in support of such a plea of discharge was either specifically
mentioned in the written statement or produced in court at the time
of presentation of the written statement. Later, on 11.11.2013, at
the time of cross-examination of the respondent as PW1, the
appellant produced in court a receipt dated 16.12.2009 (marked as
Exhibit B1 subject to the objection of the respondent), alleged to
have been issued by the respondent. Instead of producing the said
document in court along with an application under sub-rule (3) of
rule 1A of Order VIII of the Code seeking leave of the court to
produce such a document, the appellant attempted to mark the said
document during the cross-examination of the respondent as PW1,
contending that, it is a document intended to be handed over to PW1
merely to refresh his memory, the production of which would fall
under clause (b) of Sub-rule (4) of Rule 1A. We are unable to accept
the said contention raised by the learned counsel for the respondent.
Exhibit B1 receipt is a document which should be the basis for the
plea of discharge raised by the appellant in his written statement. It
is a document, which the appellant ought to have produced in court
at the time of presentation of the written statement, in view of the
provisions contained in sub-rule (1) of rule 1A. Such a document
cannot be termed as one intended to be handed over to PW1 merely
to refresh his memory, falling under clause (b) of sub-rule (4) of rule
1A. Exhibit B1 is the basic document relied on by the appellant to
prove his plea of discharge raised in the written statement. If the
appellant could not produce the said document at the time of
presentation of the written statement, for any convincing reasons, it
is for him to produce the same in court along with an application
under sub-rule (3) of rule 1A, seeking the leave of the court. Having
failed to do so, it is not open for the appellant to contend that the
court below erred in not receiving Exhibit B1 receipt into evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 27TH DAY OF FEBRUARY 2015
RFA.No. 415 of 2014 (B)
K.VIJAYAKUMARN NAIR @ VIJAYAN.
Vs
AJIKUMAR,
Citation;AIR 2015 (NOC)642 Kerala
Anil K.Narendran, J.
The appellant is the defendant in O.S.No.236 of 2010 on the
file of the Subordinate Judge's Court, Nedumangad. The respondent-
plaintiff filed the said suit for realisation of money. The court below
by the judgment and decree dated 29.11.2013 decreed the suit
allowing the plaintiff to realise an amount of ₹11,36,000/- together
with interest at the rate of 6% per annum on the principal amount
of ₹8,00,000/- from the date of suit till realisation. It is aggrieved by
the said judgment and decree of the court below, the appellant is
before us in this appeal.
2.
We heard the arguments of the learned counsel for the
appellant/defendant and perused the judgment and decree of the
court below. We have also perused the records of the case made
available by the learned counsel for the appellant.
3.
The plaint averments, in brief, are as follows; The
defendant had borrowed an amount of ₹8,00,000/- from the plaintiff
on 29.5.2008 agreeing to repay the said amount with interest @18%
per annum and executed a promissory note dated 29.5.2008 in his
own handwriting in favour of the plaintiff. In spite of repeated
demands, the defendant did not repay the said amount. On 8.9.2010
the plaintiff caused a lawyer's notice to be issued calling upon the
defendant to return the aforesaid amount. As the defendant failed to
repay, the plaintiff filed the suit for realisation of an amount of
₹11,36,000/- together with future interest at the rate of 18% per
annum from the date of suit till the date of realisation, from the
defendant and his assets, both movable and immovable.
4.
The defendant filed a written statement admitting that, he
had borrowed an amount of ₹8,00,000/- from the plaintiff, through
one Sunil Kumar, who is the brother-in-law of the plaintiff. The
defendant further admitted the execution of a promissory note for
₹8,00,000/- in favour of the plaintiff, which was given to the plaintiff
through the said Sunil Kumar. Later, the defendant repaid the said
amount of ₹8,00,000/- together with interest to the plaintiff, through
Sunil Kumar, who had agreed to return the promissory note
obtained by the plaintiff. After one week, when the defendant
approached Sunil Kumar for return of the promissory note, he was
informed that it was lost from the hands of the plaintiff. The
defendant demanded a written receipt from the plaintiff for
repayment of the amount already made. Accordingly, the plaintiff
has issued a receipt in favour of the defendant for the amount
already received towards principal amount and interest due under
the promissory note. Subsequently, the relationship between the
defendant and Sunil Kumar got strained and it is at his instigation,
the plaintiff filed the suit for realisation of money, misusing the
aforesaid promissory note.
5.
The plaintiff was examined as PW.1 and Exts.A1 to A4
were marked on his side. On the side of the defendants Dws.1 and 2
were examined and Exts.B1 to B3 were marked. On an appreciation
of the facts of the case and the evidence on record, the court below
decreed the suit allowing the plaintiff to realise an amount of
₹11,36,000/- together with interest @6% per annum on the
principal amount of ₹8,00,000/- from the date of suit till realisation.
6.
The learned counsel for the appellant would contend
that, in the absence of an undertaking to pay a certain sum, which is
an essential feature of a promissory note under section 4 of the
Negotiable Instruments Act, 1881, Exhibit A1 promissory note is
unenforceable. It is well settled that, the question as to whether an
instrument is a promissory note or not has to be ascertained by
reading the instrument as a whole, regardless of its form or
nomenclature. Therefore, mere writing of the words 'Promissory
Note' on the top of Exhibit A1 will not make it a promissory note.
The real character of Exhibit A1 has to be determined by reading it
as a whole. Section 4 of the Negotiable Instruments Act, 1881, reads
thus;
“4. 'Promissory Note': A 'promissory note' is an
instrument in writing (not being a bank-note or a currency-
note) containing an unconditional undertaking, signed by
the maker, to pay a certain sum of money only to, or to
the order of, a certain person, or to the bearer of the
instrument.”
Therefore, if there is an unconditional undertaking, signed by the
maker, to pay a certain sum of money only to, or to the order of, a
certain person, or to the bearer of the instrument, it will be a
promissory note.
7.
In the case on hand, the recitals in Exhibit A1 is to the
effect that, on demand the appellant undertakes to pay a sum of
₹8,00,000/- to the respondent with interest at the rate of 18% per
annum, for value received. In Validation of document v. State
(AIR 1955 Madras 652) a Full Bench of the Madras High Court
held that, “the mere omission of the expression 'to the order of'
would not render a document any the less a promissory note, if
otherwise it fulfilled the definition of the term 'promissory note'.
Actually a promissory note need not contain this expression. It is
sufficient if there is an unconditional undertaking to pay a certain
sum of money to a certain person.” Following the said judgment and
also the judgment of the High Court of Gujarat in Shah Chhabildas
Mangaldas v. Luhar Mohan Arjan (AIR 1967 Gujarat 7) and the
judgment of the High Court of Andhra Pradesh in Bahadurrinisa
Begum v. Vasudev Naick (AIR 1967 AP 123), a learned Single
Judge of this Court in Hameed Haji v. Appukutty (1968 KLT 869)
has reiterated that, “the absence of the expression 'or to the order
of' will not make the document any the less a promissory note.”
Therefore, Exhibit A1, which contains an express unconditional
promise made by the appellant to pay on demand a certain sum of
money to the respondent for value received, is an instrument having
the essential features of a promissory note and the contention to the
contra raised by the learned counsel for the appellant can only be
rejected.
8.
The learned counsel for the appellant would contend that,
the appellant had already discharged ₹8,00,000/- borrowed from the
respondent through DW2 Sunil Kumar, as evidenced by Exhibit B1
receipt dated 16.12.2009. It is contended that the court below ought
not to have ignored Exhibit B1 receipt on technicalities, since the
written statement contained a specific plea of discharge. The learned
counsel has also contended that, the appellant was denied a fair
opportunity before the the court below to prove Exhibit B1 receipt
through an expert.
9.
In the plaint, the definite case of the respondent was
that, on 29-5-2008 the appellant had borrowed an amount of
₹8,00,000/- from him, agreeing to repay the said amount with
interest @18% per annum and executed a promissory note dated
29.5.2008 in the own handwriting of appellant in favour of
respondent.
In the written statement the appellant had admitted
the transaction mentioned in the plaint and also the execution of a
promissory note in favour of respondent.
His only contention was
that he has discharged the entire liability. According to the
appellant, he had borrowed the money and returned it through DW2
Sunil Kumar, brother-in-law of the respondent. When the appellant
has admitted the transaction and raised a plea of discharge, the
burden is upon him to prove the alleged discharge of the liability.
10.
The suit was filed on 13.9.2010. The appellant, who was
examined as DW1, has admitted that, on receipt of summons he
entered appearance on 13.10.2010 by filing vakalath. Thereafter,
the written statement was filed only on 22.10.2011, in which the
appellant had raised a contention that, he had repaid an amount of
₹8,00,000/- together with interest to the respondent, through DW2
Sunil Kumar, who had agreed to return Exhibit A1 promissory note
obtained by the respondent. According to the appellant, after one
week, when he approached DW2 Sunil Kumar for return of the
promissory note, he was informed that it was lost from the hands of
the respondent. The appellant demanded a written receipt from the
respondent for repayment of the amount already made. Accordingly,
the respondent issued a receipt in favour of the appellant for the
amount already received towards principal amount and interest due
under the promissory note. Though the appellant has raised a
contention in the written statement that the respondent had issued a
receipt for repayment of amount covered by Exhibit A1 promissory
note, he has not produced the said receipt along with the written
statement.
11.
The
respondent,
who
was
examined
as
PW1,
has
categorically stated that, the appellant has not repaid the amount
through Sunil Kumar and that, he had never issued any receipt to
the appellant, as averred in the written statement. On 11.11.2013,
at the time of cross-examination of PW1, the appellant produced
Exhibit B1 receipt dated 16.12.2009, which was marked subject to
the objection of the respondent. PW1 has categorically denied the
execution of Exhibit B1 receipt. He has also deposed that, Exhibit B1
receipt is a fabricated one, which is not in his handwriting and the
signature on the said receipt is also not his.
12.
Order
VIII
of
the
Code
of
Civil
Procedure,
1908
(hereinafter referred to as 'the Code'), deals with written statement,
set-off and counter-claim. Going by sub-rule (1) of rule 1A of Order
VIII of the Code, where the defendant bases his defence upon a
document or relies upon any document in his possession or power,
in support of his defence or claim for set-off or counter-claim, he
shall enter such document in a list, and shall produce it in court
when the written statement is presented by him and shall, at the
same time, deliver the document and a copy thereof, to be filed with
the written statement. Sub-rule (2) of rule IA mandates that, where
any such document is not in the possession or power of the
defendant, he shall, wherever possible, state in whose possession or
power it is. Sub-rule (3) of rule 1A states that, a document which
ought to be produced in court by the defendant under rule 1A, but,
is not so produced shall not, without the leave of the court, be
received in evidence on his behalf at the hearing of the suit. As per
sub-rule (4) nothing in rule 1A shall apply to documents produced
for the cross-examination of the plaintiff's witnesses, or handed over
to a witness merely to refresh his memory.
13.
In
Bhanumathi v. K. R. Sarvothaman and others
(2010 (4) KLT 809) a learned single Judge of this Court repelled
the contention that, the Court has no power to receive in evidence at
the time of hearing of the suit documents which ought to have been
produced along with the plaint or written statement, holding that in
view of the amendment brought about by the Amendment Act 22 of
2002, inserting sub-rule (3) in rule 14 of Order VII and sub-rule (3)
in rule 1A of Order VIII of the Code, and by using the expression
'shall not without the leave of the court be received in evidence on
his behalf at the time of hearing of the suit', the court has the power
to receive in evidence even at the time of hearing of the suit
documents which ought to have been produced along with the plaint
or the written statement though a party cannot claim a right to
produce such documents at the time of hearing. The learned single
Judge noticed that, in the affidavit filed in support of the application
for leave it was stated that the applicants were not in custody of
those documents at the time of filing of the written statement and
having regard to the facts of the case the court below accepted the
reason stated therein as sufficient to grant leave to introduce the
documents in evidence. That discretion having been exercised in
accordance with law and as it is not shown to be arbitrary or
perverse, the learned single Judge refused to interfere with the
same.
14.
Going by sub-rule (1) of rule 1A of Order VIII of the
Code, a document in the possession or power of the defendant on
which he bases his defence or claim for set-off or counter-claim shall
be produced at the time of presentation of the written statement. As
required under sub-rule (2) of rule IA, if any such document is not in
the possession or power of the defendant he shall, wherever
possible, state in whose possession or power it is. If any document
falling under sub-rule (1) of rule 1A is not produced at the time of
presentation of the written statement, the defendant has no right as
such to produce such a document in evidence at the time of hearing.
However, in view of sub-rule (3) of rule 1A, the court has the power
to grant leave to receive such documents in evidence even at the
time of hearing. Since sub-rule (3) is an exception to the general
rule contained in sub-rule (1) of Rule 1A, the court must exercise
sound discretion while granting leave to receive such documents, on
the defendant satisfying the court that, those documents could not
be produced at the time of presentation of the written statement, for
convincing reasons.
15.
In the case on hand, the suit was filed on 8.9.2010. On
receipt of summons, the appellant entered appearance through
counsel, on 13.10.2010. Thereafter, on 22.10.2011, he filed a
written statement raising a plea of discharge. However, no document
in support of such a plea of discharge was either specifically
mentioned in the written statement or produced in court at the time
of presentation of the written statement. Later, on 11.11.2013, at
the time of cross-examination of the respondent as PW1, the
appellant produced in court a receipt dated 16.12.2009 (marked as
Exhibit B1 subject to the objection of the respondent), alleged to
have been issued by the respondent. Instead of producing the said
document in court along with an application under sub-rule (3) of
rule 1A of Order VIII of the Code seeking leave of the court to
produce such a document, the appellant attempted to mark the said
document during the cross-examination of the respondent as PW1,
contending that, it is a document intended to be handed over to PW1
merely to refresh his memory, the production of which would fall
under clause (b) of Sub-rule (4) of Rule 1A. We are unable to accept
the said contention raised by the learned counsel for the respondent.
Exhibit B1 receipt is a document which should be the basis for the
plea of discharge raised by the appellant in his written statement. It
is a document, which the appellant ought to have produced in court
at the time of presentation of the written statement, in view of the
provisions contained in sub-rule (1) of rule 1A. Such a document
cannot be termed as one intended to be handed over to PW1 merely
to refresh his memory, falling under clause (b) of sub-rule (4) of rule
1A. Exhibit B1 is the basic document relied on by the appellant to
prove his plea of discharge raised in the written statement. If the
appellant could not produce the said document at the time of
presentation of the written statement, for any convincing reasons, it
is for him to produce the same in court along with an application
under sub-rule (3) of rule 1A, seeking the leave of the court. Having
failed to do so, it is not open for the appellant to contend that the
court below erred in not receiving Exhibit B1 receipt into evidence.
16.
In the written statement, the appellant has admitted that
he had borrowed an amount of ₹8,00,000/- from the respondent
through DW1.
He has also admitted the execution of Exhibit A1
promissory note in favour of the respondent. But, the appellant
would contend that, later he repaid the said amount together with
interest to respondent through DW1, who had agreed to return
Exhibit A1 promissory note obtained by the respondent. After one
week, when he approached DW1 for return of the promissory note,
he was informed that it was lost from the hands of the respondent.
Then he demanded a written receipt from the respondent for
repayment of the amount already made. Accordingly, the respondent
issued Exhibit B1 receipt in his favour for the amount already
received towards principal amount and interest due under the
promissory note. Exhibit B1 receipt was marked subject to objection.
The
respondent
has
raised
serious
disputes
regarding
the
genuineness of Exhibit B1 receipt and contended that it is a
fabricated document. On a comparison of the signature of the
respondent in the plaint with that in Exhibit B1 receipt, the court
below found that there is considerable difference between the two
signatures.
Further,
going
by
the
averments
in
the
written
statement, it was one week after repayment, the appellant had
approached DW1 for return of Exhibit A1 promissory note, then he
was informed that it was lost from the hands of the respondent.
Thereafter, as demanded by the appellant, the respondent issued
Exhibit B1 receipt dated 16.12.2009. But, the defendant, while
examined as DW1, has deposed that he got Exhibit B1 receipt on the
date of repayment itself, i.e., on 16.12.2009. DW1 had no definite
case regarding the date of repayment and the amount paid towards
interest. Further, DW2, who was examined on the side of the
appellant had denied his involvement in the transaction. On
analysing the evidence of DW2, the court below came to the
conclusion that he is a total stranger to the transaction and he is
unaware of anything mentioned in the plaint and the written
statement. It was in the totality of these circumstances and the
evidence on record, the court below came to the conclusion that, the
appellant has not succeeded in proving the plea of discharge raised
in the written statement. We find absolutely no grounds to interfere
with the said finding of the court below.
17.
The learned counsel for the appellant would contend that,
the court below has not granted a fair opportunity to the appellant
to prove Exhibit B1 through an expert. A reading of the impugned
judgment would show that, though the appellant had applied for
comparison of the signature in Exhibit B1 receipt with the admitted
signature of the respondent in the plaint, he had not taken any steps
to get an expert opinion on the signature in Exhibit B1. In such
circumstances, having failed to take steps before the court below to
get an expert opinion on the signature in Exhibit B1 receipt, the
appellant cannot now contend that, no fair opportunity was afforded
to him to prove Exhibit B1 through an expert.
18.
The learned counsel for the appellant would further
contend that, as the time fixed in Exhibit A2 lawyer notice for
sending a reply was only 3 days the appellant could not send any
R.F.A.No.415 of 2014
16
reply to that notice. As we have already noticed, the suit was filed
on 13.9.2010 and the defendant entered appearance on 13.10.2010
by filing vakalath. Thereafter, the written statement was filed only
on 22.10.2011. If the plea of discharge pleaded by the defendant
was genuine, he could have send a proper reply to Exhibit A2 lawyer
notice and nothing prevented him from sending such a reply, even
after entering appearance in the suit. Therefore, the contention of
the learned counsel in this regard can only be rejected.
19.
Lastly, the learned counsel for the appellant would
contend that, even if it is assumed that the respondent is entitled for
the principal sum, the court below went wrong in awarding interest
for the period subsequent to the deposit of the plaint claim in court.
Going by the decree, the plaintiff is allowed to realise the plaint
claim with interest at the rate of 6% per annum, on the principal
amount of ₹8,00,000/- from the date of suit till realisation. Merely
for the reason that, during the pendency of the suit, the appellant
had deposited the plaint claim in court in order to avoid an order of
attachment before judgment over his property, it cannot be
contended that, once the suit is decreed the respondent is
entitled for interest on the plaint claim only upto the date of such
R.F.A.No.415 of 2014
17
deposit. Such a deposit by the defendant, during the pendency of
the suit, can never be treated as a deposit of money, in terms of
Rule 1 of Order 21 of the Code. We, therefore find absolutely no
merit in the contention raised by the learned counsel for the
appellant that, the court below ought not to have granted interest on
the plaint claim from the date of such deposit made by the
appellant.
We accordingly hold that no grounds have been made out to
interfere with the findings of the court below in the impugned
judgment. The appeal fails and it is dismissed in limine.
Sd/-
P.N.RAVINDRAN, JUDGE
Sd/-
dsn
ANIL K.NARENDRAN, JUDGE
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