IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 787 of 2009()
1. PUTHIYOTTIL PRABHAKARAN
... Petitioner
Vs
1. CHOIMADATHIL DEVARAJN, S/O. VASUDEVAN
... Respondent
For Petitioner :SRI.C.VALSALAN
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :13/08/2009
O R D E R
HARUN-UL-RASHID,J.
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R.S.A.NO.787 OF 2009
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DATED THIS THE 13TH DAY OF AUGUST, 2009
JUDGMENT
Defendant in O.S.No.116/2006 on the file of the
Munsiff’s Court, Vatakara is the appellant. The suit was decreed
by the trial court and confirmed in appeal. Hence, this second
appeal.
2. Admittedly, the defendant borrowed a sum of
Rs.60,000/- from the plaintiff on 5/12/2004 and he repaid an
amount of Rs.15,000/- on 5/3/2005. Since the balance amount
was not repaid within the time stipulated by the parties, the
defendant agreed to execute a fresh agreement, which is
produced and marked as Ext.A2. By Ext.A2 agreement the
defendant agreed to pay a sum of Rs.55,000/- instead of making
the balance amount of Rs.45,000/-. It is very important to note
that defendant borrowed an amount not Rs.60,000/- from the
plaintiff without any condition for payment of interest. Only
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when the defendant failed to pay Rs.45,000/- on the date agreed
to be paid, the plaintiff insisted for payment of some interest.
The learned counsel for the appellant submitted that Ext.A2
agreement will show that he is claiming damages for the belated
payment. On a simple reading it can be seen that what was
demanded or what was agreed is a reasonable rate of interest for
the belated payment. Though the plaintiff paid an amount of
Rs.60,000/- on 5/12/2004, he waited for the payment till
January, 2006. Only after finding that no payment was made
even within the said period of more than one year, the parties
executed Ext.A2 agreement stipulating the payment of interest,
though in the agreement the word used is ‘damages’. The
defendant admitted the execution of Exts.A1 and A2, but
contended that his signature was obtained in Ext.A2 by
threatening him that he would be put to shame in front of others.
This is the only reason stated for contending that Ext.A2 cannot
be relied upon. The trial court examined all the questions raised
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by the defendant.
3. The trial court on the basis of Exts.A1 and A2 found
that the plaint claim is true. The trial court also examined the
contentions of the defendant and held that it is not tenable and
therefore the said contention was rejected. Defendant has
preferred an appeal challenging the findings of the trial court.
Both the courts below held that there is no acceptable evidence
adduced by the appellant to prove the payment of Rs.40,000/- nor
there is any proof to show that Ext.A2 agreement was executed
under threat. The decree for realisation of Rs.51,200/- with
interest at the rate of 6% per annum from the date of suit till
realisation was confirmed by the Appellate Court based on the
same set of facts and findings.
4. The decision was taken by the courts below solely
based on the appreciation of facts and evidence adduced. The
conclusions are rested purely on facts, circumstances and
evidence. The appellant has not made out any ground to invoke
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this Court’s jurisdiction under Section 100 of the C.P.C. No
question of law much less any substantial question of law arises
for consideration in this appeal.
In the result, the appeal fails and is accordingly
dismissed in limine.
HARUN-UL-RASHID,
Judge.
kcv.