IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 374 of 2009()
1. N.K.RAJU MASTER, AGED 62 YEARS,
... Petitioner
Vs
1. K.K.PRADEEPAN, PROPRIETOR,
... Respondent
For Petitioner :SRI.K.MOHAMMED RAFU
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :15/06/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.374 of 2009
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Dated this the 15th day of June, 2009
JUDGMENT
The defendant in O.S.No.403/2000 on the file of the Munsiff’s
Court, Thalassery is the appellant. The appeal is directed against the
judgment and decree in A.S.No.74/2006 on the file of the Subordinate
Judge, Thalassery. The trial court decreed the suit as prayed for and
the same was confirmed by the appellate court. Hence the second
appeal.
2. It is the case of the plaintiff that he and defendant are
known to each other for the last five years, that he paid Rs.25,000/-
as loan to the defendant when he undertakes to repay the amount
within two days. It is further pleaded that on the next day itself the
plaintiff wanted money and therefore he contacted the defendant and
demanded for return of the money. Then the defendant issued a
cheque for Rs.25,000/- dated 30/7/97, the cheque was subsequently
dishonoured by the bank with the return memo (“funds insufficient”).
Hence the suit was filed for realisation of the amount with interest.
The defendant denied the transaction as alleged by the plaintiff.
Before the trial court PW1 was examined and marked Exhibits A1 to A8
on the side of the plaintiff. No oral or documentary evidence was
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adduced by the defendant. The trial court examined the evidence on
record. The oral evidence of PW1 and Ext.A1 to A8 are also relied on
by the trial court. It concluded that there is a transaction entered into
between the plaintiff and the defendant and the defendant received
Rs.25,000/- from the plaintiff as loan. The trial court further examined
the case set up by the appellant and held that he has failed to prove
discharge of the liability as pleaded in the written statement. Taken
into account the fact that the plaintiff is a money lender and the other
facts and circumstances the trial court held that the plaintiff is entitled
to get a decree as prayed for in this suit. It is also held that the
plaintiff has succeeded in proving that Ext.A1 cheque is supported by
consideration and alleged transaction is a probable one. The trial court
also examined the contentions raised by the defendant in detail and
observed that it is for the defendant to rebut the resumption available
to the plaintiff but no contra evidence is adduced from the side of the
defendant. No oral evidence was adduced by the defendant denying
the transaction alleged by the plaintiff which was proved by the oral
evidence of the plaintiff and by the production of documents in support
of the case. The Appellate court also considered the contentions raised
by the appellant/defendant and came to the very same conclusions
holding that the materials on record probabilise the case of the
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3
plaintiff. The Appellate Court also observed that the defendant has
also not even to enter into oral evidence. The transaction alleged by
the plaintiff was found to be proved on facts.
3. I find that no sustainable grounds are made out to take a
different view than the one taken by the courts below on facts. I find
that no questions of law much less any substantial question of law
arises for consideration in this appeal. Appeal therefore fails and
accordingly it is dismissed.
(HARUN-UL-RASHID, JUDGE)
skj.