IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 AS.No. 583 of 2001(C) ------------------------------ OS.179/1996 of PRL.SUB COURT,KOTTAYAM ........................................ APPELLANT(S): DEFENDANT --------------------------------------- K.V. ANTONY, S/O. VARKEY, KODIKULAM VEEDU, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.SUBHASH CYRIAC SMT. SHEEBA JOSEPH RESPONDENT(S): PLAINTIFF ----------------------------------------- P.K. THOMAS, KOTTARAPARAMBIL, MALLUSSERY KARA, AYMANAM VILLAGE, KOTTAYAM. ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.ABU MATHEW SMT.LAKSHMI B.SHENOY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. M.N. KRISHNAN,J ----------------------------- A.S. No.583 OF 2001 --------------------------------- Dated this the 28th day of June, 2010 J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate judge, Kottayam in O.S.179/1996. The suit is one for realisation of the amount. Plaintiff has been granted a decree and it is against that the defendant has come up in appeal. 2. Heard. 3. The brief facts necessary for the disposal of the appeal are as follows: The case of the plaintiff is that he had entered into an agreement with the defendant for purchase of a bus and had paid Rs.1,25,000/- as advance and got possession of the bus. After running the bus for 132 days as he was unable to pay the balance consideration, he surrendered the vehicle to the defendant and the defendant has paid back Rs.60,000/- to him. It is the case of the plaintiff that he wanted some more amount and there was a mediation and as per the mediation, it was agreed to pay A.S. No.583/01 2 Rs.35,000/- more to the plaintiff and for the same, defendant had issued a cheque. But unfortunately, the plaintiff lost the cheque and therefore, informed the defendant who in turn informed the bank by a stop memo to stop the payment. Thereafter the defendant did not pay the amount and therefore a case was filed. On the other hand, defendant would contend that there was a transaction as alleged in the plaint. The bus was returned and he had paid a sum of Rs.60,000/-. Plaintiff demanded for the balance of Rs.35,000/- and when it was not paid he along with his friend Divakaran had stolen the vehicle from the defendant and the bus remained idle for 36 days in the police station and defendant had to spend some money for getting release of the vehicle. Defendant had sustained a loss of about Rs.28,000/- and therefore he is only liable to pay Rs.7,000/- more to the plaintiff. The court below granted a decree in favouor of the plaintiff and dismissed the counter claim. 4. Admittedly, there is a transaction between plaintiff and the defendant in the form of an agreement for sale of a bus and in pursuance of the agreement the plaintiff paid Rs.1,25,000/- and the defendant handed over possession of the bus to the plaintiff. After running the bus for 132 days as the plaintiff could not raise A.S. No.583/01 3 the balance consideration, he surrendered the bus to defendant who in turn paid back Rs.60,000/- to the plaintiff. According to the plaintiff there was a negotiation for return of more amount in the presence of respectable mediators and it was decided to pay Rs.35,000/- more and towards the same the defendant had issued a cheque in favour of the plaintiff which is a post dated one. On the contra the defendant would contend that after the surrender of the bus the plaintiff and friend Divakaran had stolen away the bus from the custody of the defendant, which forced him to file a criminal case and he had to spend amount and the bus was lying idle in the police station for 36 days and he lost the amount @ Rs.600/- per day. So he had filed a counter claim as well. Now the relevant point that will decide the fate of the case is relating to date of the agreement that took place between the plaintiff and the defendant in the presence of mediators. Admittedly, a police complaint had been filed by the defendant on 29.9.1995. According to the defendant the agreement to pay Rs.35,000/- was prior to the filing of this complaint and by subsequent conduct of the plaintiff the defendant had sustained loss and therefore, it is the defendant who is to get the amount. So, if there is agreement as projected by the plaintiff as on 20.10.1995 is proved, then case A.S. No.583/01 4 of the defendant that the settlement talk was prior to the date of the alleged stealing of the bus will fall to the ground. The learned Subordinate Judge had referred to the written statement of the defendant. A perusal of the written statement that is, paragraph 6 would show that defendant admits regarding the settlement and admittedly there is no case for any of the parties that there were two settlements. In paragraph 6 of the written statement, it is categorically asserted that “20.10.1995¤ K¾Of}¡ÕO v|vò DºLpSÕL¥” It also refers to the case relating to the Magistrate court. Now the star witness of the defendant, namely DW2 in the chief examination itself had admitted that a settlement has taken place “1995,10&LU oLy¾]¤10&LU f]áf]SpL 20 SjL BefV.” In the cross examination he would again say “qºLofV 1995, 10&LU oLy¾]sLeV \¡\ÿ”. He would also say later last settlement was dated 20.10.1995. So from the evidence available, with the admission of the defendant in the written statement it is crystal clear that settlement has taken place only on 20.10.1995. If it is so, it can be only after the alleged case of stealing, for which a complaint was filed on 29.9.1995. So at the time of settlement on 20.10.1995 all the materials were taken into consideration A.S. No.583/01 5 altogether and it was agreed that defendant should pay back Rs.35,000/- to the plaintiff and for the said purpose admittedly the defendant issued a cheque in favour of the plaintiff. Unfortunately for the plaintiff, the cheque was lost and he informed the defendant who in turn issued a stop memo to the bank. So conduct of the defendant makes it clear that he owed as per the agreement a sum of Rs.35,000/- to the plaintiff which he did not pay as promised. Therefore, the learned Sub Judge was perfectly justified in granting a decree in favour of the plaintiff with interest at 12% to the date of decree and thereafter at 6%. Therefore there is nothing to interfere with the judgment and decree rendered by the court below. Therefore the appeal fails and the same is dismissed but under the circumstances without order as to costs. M.N. KRISHNAN, JUDGE. Sou.