IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 AS.No. 595 of 1998(C) --------------------- OS.149/1995 of SUB COURT, TIRUR .................... APPELLANT/DEFENDANT: --------------------------- CHONAMKANDATHIL SIVASANKARA MENON, S/O.LATE K.VELU NAIR, 'SREYAS' THRIKULAM AMSOM DESOM, TIRURANGADI - 676 306 BY ADV. MR.P.SHRIHARI MS.P.VANI RESPONDENTS/PLAINTIFF: ---------------------------- *CHERUKAT UNNIKRISHNAN NAIR, (DIED, LRs IMPLEADED) S/O.P.M.KUTTIKRISHNAN NAIR, ARIYALLUR AMSOM DESOM, TIRUR TALUK. ADDL.R2. K.MADHAVI, AGED ABOUT 58 YEARS, W/O.LATE C.UNNIKRISHNAN, KOLIYEDATH HOUSE, P.O. ARIYALLUR, VALLIKUNNU, MALAPPURAM DISTRICT. ADDL.R3: K.SHAJINI, AGED ABOUT 30 YEARS, D/O.LATE C.UNNIKRISHNAN, KOLIYEDATH HOUSE, P.O. ARIYALLUR, VALLIKUNNU, MALAPPURAM DISTRICT. ADDL.R4: K.SAJEEVAN, AGED ABOUT 26 YEARS, S/O.LATE C.UNNIKRISHNAN, KOLIYEDATH HOUSE, P.O. ARIYALLUR, VALLIKUNNU, MALAPPURAM DISTRICT. * THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 4 VIDE ORDER DTD. 24.7.2009 IN I.A.NO.4404/04. ADV. MR.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R2 & R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.595 of 1998 - C --------------------------------- Dated this the 20th day of January, 2010 J U D G M E N T The defendant in O.S.No.149 of 1995 on the file of the Sub Court, Tirur is the appellant. The plaintiff filed the suit for realisation of Rs.42,000 plus interest. The court below passed a decree directing the defendant to pay a sum of Rs.42,000/- with interest at 6% per annum from the date of suit with costs till realisation. Aggrieved by the decree and judgment passed by the court below the defendant has preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff's case is that the defendant owed Rs.60,000/- to the plaintiff and the accounts between them were settled in the presence of one Ummer Koya. Accordingly, the defendant executed Ext.A1 agreement in favour of the plaintiff by which he agreed to repay the amount in instalments. Subsequently, the defendant paid Rs.14,000/-. The suit was filed for realisation of Rs.46,000/- with interest. In Ext.A1 agreement A.S.No.595 of 1998 - C 2 the defendant agreed to repay the amount in 18 instalments. According to the defendant Rs.60,000/- mentioned in Ext.A1 is the total amount payable by him including the profit demanded by the plaintiff. In the written statement filed it is inter alia contented that he had executed a document in favour of the plaintiff agreeing to pay Rs.60,000/- and that in fact he received only Rs.18,000/- from the plaintiff. In paragraph 3 of the written statement it is stated that the agreement was executed because the plaintiff insisted that Rs.60,000/- should be shown in the document. It is pleaded that since the defendant was in need of money urgently, believing his words, the document was executed in favour of the plaintiff. It is also stated that at the time of execution of the said deed in fact Rs.30,000/- was owed to the defendant by the plaintiff. The defendant also contended that he had repaid Rs.18,000/- and therefore not liable to pay any further amount and prayed for dismissal of the suit. 2. Evidence in this case consists of oral evidence of PW1, DW1 and Exts.A1 to A6 and B1. 3. In the written statement itself the defendant admitted the execution of a document by which he had agreed to repay A.S.No.595 of 1998 - C 3 Rs.60,000/- in 18 instalments. The document referred to in the written statement is Ext.A1. A1 is dated 13.11.1993. A1 is an agreement executed by the defendant in favour of the plaintiff. In A1, it is recited that the defendant owed an amount of Rs.60,000/- and he agreed to repay the amount in 18 instalments. Ext.A2 is the lawyer notice sent by the plaintiff's counsel to the defendant. Ext.A3 is the reply notice sent by the defendant. In the reply notice also the defendant repeated the same contentions narrated in paragraph 2 and 3 of the written statement. 4. A contrary stand was taken by the defendant while he was examined as DW1. As DW1, he denied having been given Ext.A1 and disputed the signature in A1. The defendant also maintained the stand as DW1 that he is entitled to recover Rs.30,000/- from the plaintiff. If Rs.30,000/- is due from the plaintiff definitely the defendant would have initiated action against the plaintiff for realisation of the same. Moreover, no set off claimed nor any counter claim has been filed claiming the amount allegedly due from the plaintiff. The contention of the defendant that he owed only Rs.18,000/- and not Rs.60,000/- is A.S.No.595 of 1998 - C 4 not supported by convincing evidence apart from his oral testimony which itself is contrary to what is stated in the pleadings and, it is noticed that no evidence has been adduced in support of the said contentions. 5. The trial court observed that the evidence of DW1 and plaintiff do not coexist. The trial court noticed that when the defendant was examined as DW1, he had completely distanced from A1. Trial court observed that even though in Ext.A3 and written statement there is admission that he had prepared signed the document produced by the plaintiff, but, when cross examined, DW1 would further say, he had occasion to give his signatures in two other documents, one is a blank white paper and the other is a stamp paper for receiving Rs.18,000/-. The trial court disbelieved the evidence of DW1 and held that his evidence did not inspire confidence. The trial court also observed that if the defendant had actually entitled to get a sum of Rs.30,000/- from the plaintiff he should not have executed a document which would show that he had actually taken a sum of Rs.60,000/-. Ext.B1 is a letter issued by the plaintiff addressed to the defendant claiming the balance amount due from the A.S.No.595 of 1998 - C 5 defendant. The amount claimed is Rs.42,000/-. The trial court also taken note of the fact that Exts.A2 and A3 notices were sent by the parties after Ext.B1. 6. It is contended by the defendant that the plaintiff's claim may not be accepted without supporting proof by examining Ummer Koya who had acted as mediator. The trial court rightly held that going by the recitals in the written statement and the statement in Ext.A3 reply notice the defendant had admitted his signature in the document undertaking the liability of Rs.60,000/-. Taking into consideration the contentions of the defendant, the court below observed that the plaintiff cannot be found fault with for not examining the mediator Ummer Koya. In fact on the basis of the pleadings and Ext.A3 reply notice, the plaintiff thought that examination of Ummer Koya is not necessary. The contentions of the respective parties and the materials on record were examined, appreciated and the court below held that the plaintiff is entitled to realise a sum of Rs.42,000/-. The findings and reasonings entered by the court below are based on the facts, circumstances and evidence. I do not find any reason to interfere with the findings recorded by the A.S.No.595 of 1998 - C 6 court below. I also find that the view taken by the court below is the only view possible in the given circumstances. The plaintiff claimed Rs.46,000/- plus interest. The court below relied on Ext.B1 letter issued by the plaintiff to hold that the actual sum outstanding is Rs.42,000/- and therefore a decree was passed directing the defendant to pay a sum of Rs.42,000/- plus interest. In the result, the appeal fails, and the judgment and decree passed by the trial court are confirmed. Accordingly, the appeal stands dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-