IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 607 of 1997(E)
1. P.P.DAMODHARAN S/O.RAMAN
... Petitioner
Vs
1. P.P.DAMODHARAN, S/O. P.P.KRISHNAN
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/01/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.607 OF 1997
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DATED THIS THE 6TH DAY OF JANUARY, 2010
JUDGMENT
The defendant in O.S.No.575/94 on the file of the Sub
Court, Thalassery is the appellant. The suit was filed for
realisation of Rs.39,520/- with interest. The trial court held that
the plaintiff had succeeded in proving the plaint claim. The trial
court passed a decree allowing the plaintiff to realise a sum of
Rs.39,520/- with interest at the rate of 18% per annum on the
principal sum of Rs.36,00/- from the date of suit till realisation
with costs. Aggrieved by the judgment and decree the defendant
preferred this appeal. The parties hereinafter referred to as the
plaintiff and defendant as arrayed in the suit.
2. The plaintiff was running dye works. The defendant
is the owner of the company, which is manufacturing the
machineries for doing dye works. Plaintiff obtained quotation
from the defendant. As per the quotation, the defendant agreed
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to supply six machineries. The quotation issued by the defendant
is dated 9/2/1992 for the supply of six machineries. According to
the plaintiff, on 12/2/93 he paid a sum of Rs.62,500/- being the
part value of the machinery mentioned in the quotation. It is
alleged that the plaintiff paid the above-said amount by availing
loan from the Kannur District Co-operative Bank. It is his case
that the defendant did not supply ‘Jalaja’ machine mentioned as
item No.1 in the quotation. The plaintiff lodged a criminal
complaint before the Police requesting to take action against the
defendant on the ground of cheating. It is the case of the plaintiff
that when the police started investigation in the matter, the
defendant approached the plaintiff and on 16/7/94 a settlement
was arrived at between the parties in the presence of mediators
and an agreement was executed by the plaintiff and th defendant.
As per the terms of agreement, the value of the brand new rolling
machine ‘Jalaja’ was fixed as Rs.36,000/- and the plaintiff paid a
sum of Rs.8,200/- to the defendant on the same day and thus paid
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the entire consideration towards the value of ‘Jalaja’ machine. As
per the agreement, the defendant undertook to supply the said
machinery within three months from 16/7/94. It was further
agreed that in case the defendant was unable to supply the
machinery as agreed, he is liable to pay Rs.36,000/- with interest
at the rate of 18% per annum. The plaintiff also claimed an
amount of Rs.3,000/- towards the value of 1.5 H.P. motor which
he requested the defendant to attach the same to the Jalaja
machine. On the basis of the aforesaid facts, the suit was filed
for realisation of Rs.39,520/- with interest at the rate of 18% per
annum.
3. The defendant filed a detailed written statement
denying the plaintiff’s claim. Ext.A1 is the agreement dated
16/7/94 alleged to have been executed between the plaintiff and
the defendant. In paragraph 4 and the succeeding paragraphs of
the written statement the defendant alleged that he was made to
sign Ext.A1 agreement by force and he was taken in a car by the
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plaintiff and his associates by force and they obtained the
signature of the defendant. According to him, Ext.A1 is not a
genuine document and the same came into force as a result of the
coercion and undue influence exerted by the plaintiff.
4. The transaction between the plaintiff and the
defendant is not in dispute. It is also not disputed that the
defendant failed to supply the machine mentioned as item No.1
in the quotation. Plaintiff produced Ext.A1 agreement, which
according to him, is executed by the parties pursuant to a
settlement talk in the presence of the mediators. Ext.A1 was
executed in the presence of two attesting witnesses. Ext.A1 is an
agreement entered into between the plaintiff and defendant
whereby the defendant agreed to pay a sum of Rs.36,000/- with
18% interest.
5. Plaintiff was examined as PW1 and one of the
attesting witnesses to Ext.A1 was examined as PW2. Exts.A1 to
A5 documents were marked on the side of the plaintiff.
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Defendant was examined as DW1 and Exts.B1 to B10 were
marked on his side. Plaintiff as PW1 proved the recitals in
Ext.A1 agreement. He also tendered evidence in terms of the
pleadings in the plaint. His evidence is supported by the oral
evidence of PW2, who is an attesting witness to Ext.A1.
6. The contention raised by the defendant is that Ext.A1
is not a genuine document, but is a concocted document created
for the purpose of filing the suit. According to the defendant, by
exercising undue influence and coercion he was made to sign
Ext.A1 agreement. It is the common case of the parties that
Jalaja machine, which is item No.1 in the quotation, was not
supplied by the defendant and that out of the six items of
machineries agreed to be supplied, the defendant supplied only 5
items. In Ext.A1 the price of the machinery was fixed as
Rs.36,000/-. The court below examined the contentions of the
defendant in detail. The case of the defendant is that he was
taken in a car by force and threatened to sign Ext.A1 agreement.
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He failed to prove the said incident. Apart from his interested
testimony, no evidence has been adduced in support of the said
contention. No witness was examined to prove the incident that
alleged to have taken place on 21/7/1994. When examined as
DW1 the defendant tendered evidence stating that he lodged a
complaint before the police regarding the incident taken place on
21/7/94. The trial court observed that the defendant did not take
any steps to call for the register or the complaint alleged to have
been filed by him before the police. Defendant produced Exts.B1
to B10. The trial court examined and appreciated all the
documents produced by the defendant one by one. These
documents had no bearing on the question as to whether the
plaintiff and the defendant executed Ext.A1 agreement. The
defendant failed to adduce any evidence in support of his case
that Ext.A1 agreement was not executed on 16/7/1994.
7. The evidence adduced by the plaintiff supported his
case that Ext.A1 agreement was executed by the parties to the
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suit on 16/7/94. The contention of the defendant that Ext.A1 is
not a genuine document; but it is vitiated by fraud or coercion,
cannot be accepted for want of materials and legal evidence. The
trial court, after examining the oral and documentary evidence
concluded that the transaction as alleged in the plaint is true and
that Ext.A1 agreement dated 16/7/94 is a valid and genuine one.
Therefore, the court below passed a decree directing the
defendant to pay to the plaintiff a sum of Rs.39,520/- with
interest at the rate of 18% on the principal amount. I find that
no grounds are made out by the defendant to interfere with the
findings entered by the court below. I agree with the findings
recorded by the court below and find that there is little merit in
the appeal.
8. The learned counsel for the appellant submitted that
the grant of 18% interest on the principal sum is excessive and
requested this Court to vary the rate of interest. Taking into
consideration the submission of the learned counsel and taking a
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lenient view, the interest rate is to be modified. Accordingly, the
decree passed by the court below is modified. The plaintiff is
granted a decree for a sum of Rs.39,520/- with interest at the rate
of 9% per annum from the date of the suit till realisation with
costs.
The appeal is partly allowed.
HARUN-UL-RASHID,
JUDGE.
kcv.
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HARUN-UL-RASHID,J.
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A.S.NO.607 OF 1997
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JUDGMENT
6TH JANUARY, 2010