IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 AS.No. 836 of 1996() -------------------- OS.513/1994 of SUBORDINATE JUDGE.,THALASSERY .................... APPELLANT(S)/DEFENDANT: -------------- C.C. NARAYANAN NAIR, S/O. RAMAN NAIR, BUSINESS, KUTHUPARAMBA MUNICIPALITY, KUTHUPARAMBA AMSOM, AMBILAD DESOM, THALASSERY TALUK, KANNUR DISTRICT BY ADV. SRI.T.A.RAMADASAN, SRI.A.K.ALEX RESPONDENT(S)PLAINTIFF: --------------- PUTHUKUDY VALSAN, S/O. ACHUTHAN, AGRICULTURIST, RESIDING AT KUTHUPARAMBA MUNICIPALITY, KUTHUPRAMBA AMSOM, AMBILAD DESOM, THALASSERY TALUK, KANNUR DISTRICT ADV. SRI.V.BINOY RAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12 / 01 / 2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. 836/1996 ORDER ON C.M.P.NO. 5051/96 IN A.S. NO. 836/1996 DISMISSED. SD/- M.N.KRISHNAN, JUDGE 12.1.2009 //TRUE COPY// P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- A.S.No. 836 OF 1996 --------------------------------- Dated this the 12th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Thalassery in O.S. 513/1994. The suit is one for realisation of the amount due under an agreement. It is the case of the plaintiff that the defendant had borrowed a sum of Rs. 25,000/- on 25.1.92 and had executed Ext. A1 agreement with a stipulation to pay interest. The defendant on the other hand denied the whole transaction and contending for the position that he had handed over a blank signed stamp paper to one Puthukudy Balan and it has been utilised for filing a false suit and pray for dismissal of the suit. 2. In the trial court Exts. A1 to A3, Exts. B1 to B3 were marked. PWs. 1 and 2 and DW1 were examined. On analysis of the materials the trial court granted decree in favour of the plaintiff with 6% interest. It is against that decision the defendant has come up in appeal. 2. The points that arises for determination are: 1. Whether the plaint transaction is true? 2. Whether the court below has erred in arriving at a decision A.S. 836/1996 -2- in favour of the plaintiff? Points 1 & 2: For he sake of convenience, both the points are answered together. It is the case of the plaintiff that on 25.1.92 the defendant had borrowed a sum of Rs. 25,000/- and executed Ext. A1 agreement in the presence of PW2 and he had not repaid the amount and hence the suit. The defendant on the other hand denies entire transaction. It is true that in a suit for money the burden is to the plaintiff to establish the factum of advancement of the money. The method of proving the transaction is by attempting to prove Ext. A1 alleged to be executed by plaintiff in favour of the defendant. The plaintiff had given evidence in line with his case and PW2 had deposed that he was present at the time of the transaction and he had seen the plaintiff advancing a sum of Rs. 25,000/- and defendant executing Ext. A1 agreement in his presence. The attack against the evidence of PW2 is to the effect that he had come with PW1 to the court. Unless a person is known and he is interested, he would not come to the court at all to give evidence and so the mere presence of PW2 along with PW1 in the court premises is not sufficient to discard his evidence. It is the intrinsic liability that has to be looked into rather than the out word A.S. 836/1996 -3- formality. Both PWs. 1 and 2 faced severe cross examination and nothing is brought out to discredit their evidence. I further find that the evidence of DW1 is not worthy credence to be relied upon. It is his case that he had signed a blank paper in favour of one Balan and according to him the said blank signed paper was handed over to Balan in the month of November or December 1992, whereas the disputed document in this case is in January 1992. So the said stamp paper cannot be used for this purpose. Further the disputed stamp paper is purchased in the name of the defendant and if it had been with respect to the transaction with Balan, it should have been purchased in the name of Balan and therefore it also creates suspicious in the mind of the court regarding genuineness of the contention of the defendant. Analysing all the facts the court below rightly concluded that the plaintiff has succeeded in proving Ext. A1 and had granted the decree. I do not want to interfere with the decision rendered by the trial court. Therefore the appeal lacks merit and the same is dismissed but the parties shall bear their respective costs. M.N. KRISHNAN,JUDGE vkm