JUDGMENT

The appeal is filed by the defendants 1 to 4 in O.S.No.76 of 2009 of the Sub Court, Chengannur. The suit was filed by the 1st respondent Company against the appellants and the 2nd respondent for return of money advanced. According to the plaintiff, the husband of the 1st defendant had availed of loans to which the 5th defendant was a guarantor. The husband of the 1st defendant and 5th defendant had together executed two promissory notes, which are produced as Exts.A13 and A14. PW1 is the power of attorney holder who was examined as witness on behalf of the plaintiff. The plaintiff has also produced several documents showing hypothecation and receipt of money by the husband of the 1st defendant. According to the plaintiff, the husband of the 1st defendant had approached the plaintiff during June, 2007 and had promised to wipe off the liability by October, 2007. It is stated that after ascertaining the amount that would be due by then, a cheque was issued with the date 15.10.2007. The cheque has been produced as Ext.A2. Unlike the other documents relating to the loan, the cheque has been signed only by the husband of the 1st defendant. The defendants filed written statement contending that there has been no such transaction. According to them, a sum of Rs.50,000/- was availed as loan and certain papers were signed by the husband of the 1st defendant, which have been misused for the purpose of the case. The plaint proceeds to say that the cheque was presented for payment in December, 2007 and was returned with an endorsement that the account holder had died. Thereafter, notice has been issued to the legal representatives of the deceased, followed by the suit. The court below found that the signatures in all the documents and the cheque are similar. After narrating the facts, the court has only stated that, considering the entire aspects of the case and preponderance of probability, the suit needs to be decreed. It is aggrieved by the decree that the defendants

1 to 4 have filed this appeal.

2. The counsel for the appellants pointed out that the cheque is dated 15.10.2007 and admittedly the husband of the 1st appellant had died in July, 2007. The evidence of PW1 specifically shows that the plaintiff knew about the death of the husband of the 1st appellant in July, 2007 itself. There is no explanation either in the plaint or in the evidence as to why the plaintiff proceeded to present the cheque for payment in December, 2007 when they already knew about the death of the husband of the 1st appellant. The plaintiff does not specifically state about the knowledge regarding the date of death, but the witness specifically spoke about it particularly when a question was put by the court in this regard. The counsel for the appellants also pointed out that the power of attorney holder who had given evidence as PW1 is not a signatory to any of the documents and hence the documents which have been produced cannot be said to have been properly proved. Even with regard to the cheque, the evidence of PW1 is to the effect that a written up cheque was brought and signed in front of the Company without reference to any particular person before whom the cheque was signed. As such, the execution of the cheque cannot be said to have been present in a manner known to law. None of these aspects have been considered by the court below while decreeing the suit. However, it is seen that the original documents belonging to the deceased had been produced by the plaintiff and there is no proper explanation as to how these documents went into the hands of the plaintiff, on the part of the defendants. The defendants had also not let in any evidence in this regard.

In the above circumstances, this appeal is allowed.

The judgment and decree in O.S.No.76 of 2009 of the Sub Court, Chengannur is set aside. The case is remitted back to the court below for fresh consideration. The parties are at liberty to adduce fresh evidence, if they are so advised. The pa