IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 SA.No. 207 of 2000(G) --------------------- AS.260/1996 of ADDL. DISTRICT COURT, THALASSERY OS.90/1994 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- ABDURAHIMAN HAJEE,S/O.AHAMMED KUTTY, AGED 52 YEARS, IRIVERY AMSOM, DESOM, P.O.IRIVERY, KANNUR. BY ADV. SRI.C.KHALID ADV.N.GOPINATHA PANICKER ADV.P.VISWAMBHARAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- P.PURUSHOTHAMAN,S/O.PODIYAN, AGED 46 YEARS, BETHAL HOUSE, P.O.ETTUKUDUKKA, TALIPARAMBA TALUK, KANNUR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.NO.207/2000 ORDER IN C.M.P.NO.563/2000 IN S.A.NO.207/2000 DISMISSED. 14.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.207 OF 2000 ----------------------------------- Dated this the 14th day of October, 2010 J U D G M E N T Defendant in a suit for money is the appellant. Concurrent decision rendered by the two courts below in favour of the respondent/plaintiff decreeing his suit, as prayed for, is challenged in this appeal. 2. Plaintiff was the owner of an autorickshaw. That vehicle was subject to a hypothication agreement with a bank for the loan extended for its purchase. While the liability under the loan transaction prevailed, according to the plaintiff, with the permission of the bank, the vehicle was transferred to the defendant under an agreement, whereby, a part of the sale price was paid to the plaintiff and the rest reserved for discharge of the loan amount without default in the repayment of the instalments as and when due. According to the plaintiff, S.A.NO.207 OF 2000 2 pursuant to transfer of the vehicle under the terms covered by the agreement, the defendant remitted only two instalments to the bank and the repayment of the instalments was thereafter defaulted. The bank proceeded against the plaintiff, and, ultimately a decree was passed for recovery of the money outstanding on the loan from him. Plaintiff, therefore, laid the suit for a sum of Rs.22,994.40 with interest at 12% per annum as the sum due from the defendant in terms of the agreement over the transfer of the vehicle. The appellant/defendant resisted the suit claim contending that pursuant to the agreement and transfer of vehicle, he had transferred the vehicle to another person, one Abdullah, and such transferee had promised to repay the loan amount due to the bank, but it was honoured only in its breach. Claim of the bank as against the plaintiff has not become final as an appeal was pending, was yet another defense raised by the defendant to resist the suit claim. It was also contended that the suit claim was barred by limitation as the agreement was executed in the year 1989 but the suit instituted only in 1994. The trial court, on the materials placed, found no merit in the defense raised by the defendant against the suit S.A.NO.207 OF 2000 3 claim of the plaintiff, and negativing the challenges raised suit was decreed in favour of the plaintiff. Appeal preferred by the defendant was also negatived by the lower appellate court concurring with the finding entered by the trial court. 3. The respondent, though notice was effected by publication, as personal service was found impracticable, has not entered appearance. I heard the learned counsel for the appellant. Knowing the limitations in raising challenges against the concurrent findings rendered by two courts below, this Court in a second appeal, except to the extent where consideration of a substantial question of law is borne out on the materials placed, the learned counsel for the appellant confined his submissions to impeach the correctness of the findings entered by the two courts below on the question of limitation raised in the suit as barring the claim of the plaintiff. Both the courts have not considered the challenge raised by the appellant that the suit is barred by limitation in the proper perspective with reference to the evidence let in the case, is the submission of the counsel. Plaintiff has alleged a false case that the two instalment S.A.NO.207 OF 2000 4 payments were made by the defendant during 1991 to get over the period of limitation and the case so set up was not supported by any materials, is the submission of the counsel to contend that the courts below should have viewed the non-production of any materials to support such claim as fatal. Perusing the materials tendered, I find though the defendant had set up a challenge that the suit is barred by limitation, he did not dispute the case of the plaintiff alleged in his plaint that two instalment payments were made by him to the bank towards the liability under the loan over the vehicle, on 13.3.1991 and 17.4.1991, both times paying a sum of Rs.1,000/-, then he filed a written statement in answer to his plaint claim there was no denial, leave alone specific denial of the instalment payments alleged to have been made by him toward the loan. Further more, no counter evidence was let in by the defendant. He did not mount the box to swear in support of the contentions raised by him in his written statement despite the plaintiff giving evidence as PW1 and exhibiting A1 to A6 to substantiate his suit claim. Plaintiff, in his evidence as PW1, has asserted that the defendant had paid two instalments towards the loan in the bank as alleged in his plaint. The S.A.NO.207 OF 2000 5 assertion so made by the plaintiff, it is seen, was not even challenged during his cross examination. When such be the case, there is apparently no reason to doubt the case canvassed by the plaintiff that there was subsequent instalment payments by the defendant towards the loan in the bank. Even otherwise going by the agreement, which is not disputed, it could be seen that the defendant had taken over the liability to discharge the loan to the bank in instalments. So much so, the plaintiff is entitled to reckon the period of limitation for suing the defendant, in the event of his default in repayment of the loan, from the date of completion of the period of instalments provided for discharge of the loan by the bank. The trial court, after appreciating the materials, has found that the plea of limitation raised by the defendant is unworthy of any merit. The lower appellate court, in its judgment, has observed that the plea of limitation though raised as a ground in appeal was not urged before that court. When such be the position, there is absolutely no merit in the challenge now raised in the second appeal to impeach the concurrent decision rendered by the two courts below on the question of limitation, especially, where the S.A.NO.207 OF 2000 6 defendant has not even disputed the instalment payments alleged to have been made by him on 13.3.1991 and 17.4.1991, in his written statement. That challenge, needless to point out, deserve to be taken note of only for its rejection. The appeal is devoid of any merit, and it is dismissed, but, without costs as the respondent has not entered appearance. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.207 OF 2000 ----------------------------------- J U D G M E N T 14th day of October, 2010 S.A.NO.207 OF 2000 8