IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 RSA.No. 836 of 2009() --------------------- AS.81/2007 of I ADDL.SUB COURT, KOZHIKODE OS.533/2001 of PRL.M.C.-II KOZHIKODE .................... APPELLANT:APPELLANT/DEFENDANT ------------------------------------------------- N.GOPALAKRISHNAN,S/O.DR.KRISHNA KURUP, AGED 44 YEARS,OOTHAYAMANGALATH HOUSE,VELLAYIKODE DESOM,PERUMANNA AMSOM,KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENT: RESPONDENT/PLAINTIFF ------------------------------------------------------------ K.APPUTTY,S/O.CHANDUKUTTY, KURUNGATTUMMAL HOUSE,VELLAYIKODE DESOM,PERUMANNA AMSOM,KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1811 OF 2009 IN R.S.A. NO. 836 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 10.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 836 of 2009 ---------------------------------------- Dated this the 10th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 81/2007 on the file of the Sub court, Kozhikode which arises from the judgment and decree In O.S. No. 533/2001 on the file of the Principal Munsiff Court,-II,Kozhikode. The suit for realsiation of money was decreed by the trial court and confirmed in appeal . Hence the second appeal. The defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. It is the plaintiffs case that the defendant borrowed Rs. 60,000/-as loan and promised to repay the same within one month. The transaction took place on 4.7.1998. When the plaintiff demanded the defendant to repay the said amount, the defendant issued a cheque in favour of the plaintiff drawn on Perumanna Service Cooperative Bank for an amount of Rs. 60,000/-. When the plaintiff has presented the cheque for encashment on 11.8.1998 the same was dishonoured due to insufficiency of funds. Therefore the suit was filed for realisation of money with interest. 3. In the written statement , the defendant denied the borrowal of the said amount He also denied the issuance of the said cheque in favour R.S.A. No.836 of 2009 -2- of the plaintiff. 4. The trial court examined and appreciated the oral and documentary evidence viz. PW1, DW1 Exts. A1 to A6. 5. The trial court believed the oral evidence of PW1 to the effect that he has acquaintance with the defendant as they are neighbours and due to this acquaintance the defendant approached him and borrowed Rs. 60,000/- and that subsequently the defendant issued a cheque dated 11.8.1998 and the same was dishonoured due to insufficiency of funds. PW1 also brought out in evidence that he filed a complaint as C.C. 674/1998 before the JFMC-V , Kozhikode against the defendant for the commission of offence under Section 138 of the Negotiable Instruments Act. Ext.A5 is the certified copy of the judgment in the C.C. 674/1998. Taking into account all the facts, circumstances evidence and after considering the defence set up by the defendant, the trial court held that on a careful scrutiny of the oral evidence tendered by PW1, DW1 coupled with Ext.A1 to A6 it can be seen that the defendant has borrowed a sum of Rs. 60,000/- from the plaintiff and in discharging that liability the defendant has issued the cheque in favour of the plaintiff for an amount of Rs. 60,000/-drawn on the above said bank. The trial court found that the plaintiff has succeeded in proving his case against the defendant . 6. The question of limitation raised by the defendant was also considered and found against . A decree was passed allowing the R.S.A. No.836 of 2009 -3- plaintiff to realise Rs. 92,650/- and also allowed him to realise interest at the rate 6% per annum on the principal amount. 7. In appeal, the lower appellate court considered all the issues and appreciated the entire evidence on record. The lower appellate court also concluded that the findings arrived at by the trial court requires no interference The lower appellate court also examined all the contentions in detail and held that the transaction is true, that the defence setup by the defendant is not correct and dismissed the appeal with costs. I have examined the contentions raised by the defendant/appellant in this Second Appeal. I have also examined the findings entered by the courts below which are based on facts ,evidence and circumstances. I find that no different view is possible other than the views taken by the courts below in the given circumstances. I find that no grounds are made out by the defendant/appellant to invoke this Court's jurisdiction under section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 836 of 2009 ---------------------------- JUDGMENT 10th August, 2009