IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 595 of 1998(C)
1. C.SIVASANKARA MENON
... Petitioner
Vs
1. CHERUKATT UNNIKRISHNAN NAIR
... Respondent
For Petitioner :SRI.P.SHRIHARI
For Respondent :SRI.T.KRISHNANUNNI
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/01/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.595 of 1998 - C
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Dated this the 20th day of January, 2010
J U D G M E N T
The defendant in O.S.No.149 of 1995 on the file of the Sub
Court, Tirur is the appellant. The plaintiff filed the suit for
realisation of Rs.42,000 plus interest. The court below passed a
decree directing the defendant to pay a sum of Rs.42,000/- with
interest at 6% per annum from the date of suit with costs till
realisation. Aggrieved by the decree and judgment passed by the
court below the defendant has preferred this appeal. The parties
hereinafter referred to as the plaintiff and defendant as arrayed
in the suit.
2. The plaintiff’s case is that the defendant owed
Rs.60,000/- to the plaintiff and the accounts between them were
settled in the presence of one Ummer Koya. Accordingly, the
defendant executed Ext.A1 agreement in favour of the plaintiff by
which he agreed to repay the amount in instalments.
Subsequently, the defendant paid Rs.14,000/-. The suit was filed
for realisation of Rs.46,000/- with interest. In Ext.A1 agreement
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the defendant agreed to repay the amount in 18 instalments.
According to the defendant Rs.60,000/- mentioned in Ext.A1 is
the total amount payable by him including the profit demanded
by the plaintiff. In the written statement filed it is inter alia
contented that he had executed a document in favour of the
plaintiff agreeing to pay Rs.60,000/- and that in fact he received
only Rs.18,000/- from the plaintiff. In paragraph 3 of the written
statement it is stated that the agreement was executed because
the plaintiff insisted that Rs.60,000/- should be shown in the
document. It is pleaded that since the defendant was in need of
money urgently, believing his words, the document was executed
in favour of the plaintiff. It is also stated that at the time of
execution of the said deed in fact Rs.30,000/- was owed to the
defendant by the plaintiff. The defendant also contended that he
had repaid Rs.18,000/- and therefore not liable to pay any
further amount and prayed for dismissal of the suit.
2. Evidence in this case consists of oral evidence of PW1,
DW1 and Exts.A1 to A6 and B1.
3. In the written statement itself the defendant admitted
the execution of a document by which he had agreed to repay
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Rs.60,000/- in 18 instalments. The document referred to in the
written statement is Ext.A1. A1 is dated 13.11.1993. A1 is an
agreement executed by the defendant in favour of the plaintiff.
In A1, it is recited that the defendant owed an amount of
Rs.60,000/- and he agreed to repay the amount in 18
instalments. Ext.A2 is the lawyer notice sent by the plaintiff’s
counsel to the defendant. Ext.A3 is the reply notice sent by the
defendant. In the reply notice also the defendant repeated the
same contentions narrated in paragraph 2 and 3 of the written
statement.
4. A contrary stand was taken by the defendant while he
was examined as DW1. As DW1, he denied having been given
Ext.A1 and disputed the signature in A1. The defendant also
maintained the stand as DW1 that he is entitled to recover
Rs.30,000/- from the plaintiff. If Rs.30,000/- is due from the
plaintiff definitely the defendant would have initiated action
against the plaintiff for realisation of the same. Moreover, no set
off claimed nor any counter claim has been filed claiming the
amount allegedly due from the plaintiff. The contention of the
defendant that he owed only Rs.18,000/- and not Rs.60,000/- is
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not supported by convincing evidence apart from his oral
testimony which itself is contrary to what is stated in the
pleadings and, it is noticed that no evidence has been adduced in
support of the said contentions.
5. The trial court observed that the evidence of DW1 and
plaintiff do not coexist. The trial court noticed that when the
defendant was examined as DW1, he had completely distanced
from A1. Trial court observed that even though in Ext.A3 and
written statement there is admission that he had prepared signed
the document produced by the plaintiff, but, when cross
examined, DW1 would further say, he had occasion to give his
signatures in two other documents, one is a blank white paper
and the other is a stamp paper for receiving Rs.18,000/-. The
trial court disbelieved the evidence of DW1 and held that his
evidence did not inspire confidence. The trial court also observed
that if the defendant had actually entitled to get a sum of
Rs.30,000/- from the plaintiff he should not have executed a
document which would show that he had actually taken a sum of
Rs.60,000/-. Ext.B1 is a letter issued by the plaintiff addressed
to the defendant claiming the balance amount due from the
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defendant. The amount claimed is Rs.42,000/-. The trial court
also taken note of the fact that Exts.A2 and A3 notices were sent
by the parties after Ext.B1.
6. It is contended by the defendant that the plaintiff’s
claim may not be accepted without supporting proof by
examining Ummer Koya who had acted as mediator. The trial
court rightly held that going by the recitals in the written
statement and the statement in Ext.A3 reply notice the defendant
had admitted his signature in the document undertaking the
liability of Rs.60,000/-. Taking into consideration the contentions
of the defendant, the court below observed that the plaintiff
cannot be found fault with for not examining the mediator
Ummer Koya. In fact on the basis of the pleadings and Ext.A3
reply notice, the plaintiff thought that examination of Ummer
Koya is not necessary. The contentions of the respective parties
and the materials on record were examined, appreciated and the
court below held that the plaintiff is entitled to realise a sum of
Rs.42,000/-. The findings and reasonings entered by the court
below are based on the facts, circumstances and evidence. I do
not find any reason to interfere with the findings recorded by the
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court below. I also find that the view taken by the court below is
the only view possible in the given circumstances. The plaintiff
claimed Rs.46,000/- plus interest. The court below relied on
Ext.B1 letter issued by the plaintiff to hold that the actual sum
outstanding is Rs.42,000/- and therefore a decree was passed
directing the defendant to pay a sum of Rs.42,000/- plus interest.
In the result, the appeal fails, and the judgment and decree
passed by the trial court are confirmed. Accordingly, the appeal
stands dismissed. No order as to costs.
HARUN-UL-RASHID,
JUDGE.
bkn/-