IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 AS.No. 259 of 1997() -------------------- OS.258/1993 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/PLAINTIFF: -------------------------------- P. SASIKUMAR, S/O. VELAYUDHAN AGED 47 YEARS, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.VATHSALAN RESPONDENT/DEFENDANT: ---------------------------------------- MOOTHAT BHASKARAN, S/O. CHEKKU, AGED 56 YEARS, RESIDING AT VENGERI AMSOM, VARADOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NEITHER THE APPELLANT NOR HIS COUNSEL PRESENT. THIS APPEAL IS HENCE DISMISSED FOR DEFAULT. 16.7.2009 SD/- M.L. JOSEPH FRANCIS, JUDGE /TRUE COPY/ P.S. TO JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.259 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of August, 2009 JUDGMENT Plaintiff is the appellant. The suit was for recovery of advance amount paid under an oral agreement for sale which was dismissed by the lower court. 2. The case of the appellant/plaintiff as stated in the plaint and as testified by him as PW1 before the lower court in brief is this : The defendant has agreed to sell 66 ½ cents comprised in Sy.No.42/1 belonging to the plaintiff for a consideration of Rs. 5600/- per cent. The defendant received an advance amount of Rs. 20,000/- on November 14, 1990 for which the defendant has issued a receipt - Ext.A1. The agreement was to execute the sale deed within two years of payment of the balance sale consideration. Inspite of the notice issued - Ext.A6(a) dated December 7, 1992, the defendant refused to execute the sale deed or return the advance amount. 3. The case of the respondent/defendant was of total denial. A.S.No.259/1997 2 The plaintiff was examined as PW1, a witness to Ext.A1 examined as PW2 and Exts.A1 to A8 were produced on the side of the plaintiff before the lower court. The defendant was examined as DW1 before the lower court. The lower court on an appreciation of evidence found that the plaintiff has failed to prove the oral agreement for sale as well as the alleged execution of Ext.A1 by the defendant and dismissed the suit. The plaintiff has now come up in appeal. 4. The learned counsel for the appellant argued that the lower court went wrong in finding that Ext.A1 was not executed by the defendant and the comparison of admitted signature of the defendant in Ext.A8 with the disputed signature in Ext.A1 is not legal. The learned counsel for the respondent/defendant on the other hand would submit that the lower court is perfectly justified in finding that Ext.A1 was not executed by the defendant. 5. The main question which arises for consideration is whether the appellant/plaintiff has succeeded in proving the alleged oral agreement of sale and alleged payment of the advance amount of Rs. 20,000/- and execution of Ext.A1 by the defendant/respondent. A.S.No.259/1997 3 6. I have gone through the evidence adduced by both parties and the judgment of the lower court. The lower court has given convincing and cogent reasons for disbelieving the evidence of PW1 regarding the alleged oral agreement for sale. The lower court is also justified in comparing the admitted signature of the defendant in Ext.A8 with that of the disputed signature in Ext.A1 and coming to the conclusion that there are glaring dis-similarities between those signatures. In Ext.A1 a stamp is seen affixed to cover some other writing. According to the plaintiff, two years time has been given for executing the sale deed and at the same time he would say that the agreement for sale was not written in stamp paper due to urgency of the respondent/defendant. It is correctly observed by the learned Subordinate Judge that if the plaintiff can get a receipt like Ext.A1 which is styled as an agreement for sale, there is nothing prevented him from executing a regular agreement for sale. Therefore, the reason put forward by PW1 for not executing an agreement for sale appears to be unconvincing. The lower court has also disbelieved the evidence of PW2, one of the attesting witnesses to Ext.A1 for obvious reasons. A.S.No.259/1997 4 I have gone through the evidence of PW1, PW2 and DW1 and perused the documents. I find no reason to disagree with the findings entered by the lower court. 7. Under these circumstances, I am of the view that the lower court is perfectly justified in rejecting the evidence of PW1 and PW2 and holding that plaintiff has failed to prove the alleged oral agreement for sale and alleged receipt of Rs. 20,000/- as advance by the defendant and execution of Ext.A1. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed with costs. P.Q.BARKATH ALI JUDGE sv. A.S.No.259/1997 5