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KERALA HIGH COURT
P.N. Ravindran and Anil K.Narendran, JJ.
K. Vijayakumaran Nair —Petitioner
versus
Ajikumar —Respondent
RFA.No.415 of 2014 (B)
Decided on 27.2.2015
IMPORTANT POINT
On analysing evidence of DW court below came to conclusion that he is total stranger to transaction and unaware of anything mentioned in plaint and written statement, no grounds to interfere with said finding of court below.
Headnote:Negotiable Instruments Act, 1881 — Section 4 — Promissory Note — Unconditional undertaking signed by maker to pay certain money — Only to or to order of certain person or to bearer of instrument — HELD —It will be promissory note. (Para 6)
(ii) Negotiable Instruments Act, 1881 — Section 4 — Civil Procedure Code, 1908 — Order VIII, Rule 1-A (3) — Receipt is basic document relied on by appellant — To prove plea of discharge raised in written statement — HELD — If appellant could not produce said document at time of presentation of written statement —For any convincing reasons it is for him to produce same in court along with application under sub-rule (3) of Rule 1-A seeking leave of court — Having failed to do so it not open for appellant to contend that court below erred in not receiving receipt into evidence. (Para 15)
(iii) Negotiable Instruments Act, 1881 — Section 138 — Civil Procedure Code, 1908 — Order VIII, Rule 1-A (3) — Interest — Court ought to granted interest on plaint claim — From date of such deposit made by appellant. (Para 19)
Result: Appeal dismissed.
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 PW1 and Exs.A1 to A4 were marked on his side. On the side of the defendants Dws1 and 2 were examined and Exs.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 w
