IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 RSA.NO. 980 OF 2008() ---------------------------------- AS.167/2005 OF S.C.,THALASSERY OS.753/1999 OF PRL.M.C.,KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------- S.KUMAR, S/O.NARAYANAN NAMBIAR, RESIDING AT VIII/473, TALAP HOUSING COLONY, TALAPP WARD, KANNUR. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): RESPONDENT/DEFENDANT ------------------------------------------------------------- MUTHATHI PANAYANTHATTA BABURAJ, S/O.RAGHAVAN NAIR, VELLORA VILLAGE, P.O.KAKKARA, THALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.O.V.MANIPRASAD THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.980 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of February, 2010 J U D G M E N T --------------------- Plaintiff, unsuccessful in the courts below in getting a decree for realisation of money has come up in this Second Appeal urging by way of substantial question of law whether, when the appellant who is a party to the agreement produced and gave evidence that the agreement undertaking to pay him was written up by the respondent, and, whether when the respondent filed application to send the disputed agreement for examination to the expert and the court on allowing it directed respondent to pay the necessary fee and respondent having failed to take proper steps without assigning any reason should not the court take an adverse inference against the respondent? 2. These substantial questions of law are urged by the appellant in a suit for money instituted against the respondent. Appellant claimed to be Manager of M/s.Singer India Limited, Kannur and alleged that respondent was working as the sales representative of that Company. Respondent collected amounts totaling Rs.32,748/- from various customers but did not remit the R.S.A. No.980 of 2008 -: 2 :- same to the Company. When appellant initiated action, respondent agreed to pay the amount and executed Ext.A1, agreement on 28.8.1997 undertaking to pay the amount but he did not comply with the agreement. Hence the suit. Respondent denied that he collected any amount or installments or failed to pay any amount to the Company. He denied execution of Ext.A1 and claimed that on getting a Government job he resigned from the Company but was not given his benefits due from the Company. To avoid disbursement of benefits he has been falsely implicated in the case. Trial court found that there is no evidence for execution of Ext.A1 and dismissed the suit. First appellate court concurred with the same. Hence the Second Appeal. It is contended by learned counsel that so far as due execution of Ext.A1 is concerned there is evidence of P.Ws.1 and 2 and there was no reason to reject the same. It is also contended that respondent had filed I.A No.2101 of 2001 in the trial court to send the agreement for expert opinion, appellant filed objection to that application stating that not only the signature but also handwriting in Ext.A1 which according to the appellant is that of respondent is also to be examined. Trial court dismissed the application since respondent did not pay batta. That R.S.A. No.980 of 2008 -: 3 :- according to the appellant is a reason to draw adverse inference against respondent when according to the appellant Ext.A1 was written and signed by respondent. 3. Suit was initially decreed on 31.1.2002 with the evidence of P.W1 and Ext.A1. Respondent filed appeal before the first appellate court. First appellate court allowed the appeal and remanded the case for further evidence. After remand appellant examined P.W2 and respondent gave evidence as D.W.1. Thereafter trial court found that there is no reliable evidence to prove execution of Ext.A1 and dismissed the suit. 4. Regarding execution of Ext.A1 it is true after remand P.W2 was examined and he stated about the execution of Ext.A1 by the respondent. But it has come in evidence that P.W2 is a close associate of appellant and working under him during relevant time. Further fact which was taken note of by the courts below is that there was no mention in the plaint about presence of P.W.2 at the time of execution of Ext.A1. He is not an attesting witness in Ext.A1. Fact remained that P.W2 came into the picture only after the case was remanded. According to the appellant attester in Ext.A1 was not available for examination as he left the service of R.S.A. No.980 of 2008 -: 4 :- Company. But that is not an excuse for not examining the attester in Ext.A1. P.W2 is not in any way related to the attester in Ext.A1 so that he could have identified the signature. Respondent when examined as D.W.1 denied that he wrote or signed Ext.A1. 5. So far as I.A. No.2101 of 2001 is concerned assuming that respondent failed to pay batta for the expert and consequently application was dismissed, that did not prevent appellant from filing application to send Ext.A1 for expert opinion. Such a request could have been made at least in the first appellate court which also was not done. Courts below were not satisfied with evidence adduced by the appellant regarding alleged execution of Ext.A1. 6. A further fact to be borne in mind is that the case of appellant as stated in the plaint if accepted would amount to a case of misappropriation by the respondent. There is no evidence that any action was taken for such act. True it is the case of appellant that when action was proposed respondent came forward offering to pay the amount and executed agreement. But no evidence is let in by the appellant to show that respondent collected any amount from customers. Nor is there evidence to show that appellant paid any amount to the Company. It is not shown that there was any R.S.A. No.980 of 2008 -: 5 :- direction to the appellant to pay any amount to the Company and any such payment was made by the appellant to the Company. Hence respondent cannot be saddled with liability. In the above circumstances when the appellant failed to adduce evidence regarding due execution of Ext.A1 and other relevant factors he cannot contend that merely because respondent failed to deposit batta for the expert as ordered in I.A. No.2101 of 2001 adverse inference has to be drawn against respondent and it must be taken that he executed Ext.A1. 7. On going through the judgments under challenge and hearing learned counsel for appellant I am not satisfied that any substantial question of law is involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.2235 of 2008 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv