IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 RSA.No. 906 of 2008 --------------------------------- AS.12/2006 of II ADDL. DISTRICT COURT, PALAKKAD OS.10/1998 of SUB COURT, OTTAPPALAM .................... APPELLANT/APPELLANT/ DEFENDAN: LUKKAMAN, AGED 39 YEARS, S/O.PATTARATHIL MUHAMMED, RAYIRANELLOOR AMSOM, NADUVATTOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR CHELUR RESPONDENT/RESPONDENT/PLAINTIFF: MOIDU, AGED 53 YEARS, S/O.PATTARATHIL MUHAMMED, RAYIRANELLOR AMSOM, NADUVATTOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.906 of 2008 -------------------------- JUDGMENT The defendant in O.S.No.10/98 on the file of the Sub Court, Ottapalam is the appellant. His brother, who is the plaintiff in the said suit, is the respondent. 2. The respondent/plaintiff instituted the said suit for recovery of an amount of Rs.1,50,000/- with interest, costs, etc. from the appellant/ defendant, inter alia, on the allegations that while he was working in Saudi Arabia, his brother, the appellant/defendant, requested for a loan of Rs.1,50,000/- and accordingly, he issued a cheque for Rs.1,50,000/- dated 3.12.1995, drawn on his account with Koppam Service Co-operative Bank; that the appellant/defendant received the cheque and got it encashed on 9.12.1995; that in November 1996, when he came over from abroad, he demanded repayment of the amount from the appellant/ RSA 906/08 2 defendant and the appellant/defendant gave a written undertaking that the amount would be repaid in September 1997; that thereafter despite repeated demands, the appellant/defendant did not repay the amount and that on 14.11.1997, a notice was issued to the appellant/defendant for repayment of the amount, but, he did not repay nor did he send any reply. Hence the suit. 3. The appellant/defendant resisted the suit by filing written statement contending, inter alia, that it is false to say that cheque dated 3.12.1995 for Rs.1,50,000/- drawn on the account of the respondent/defendant with the Koppam Service Co- operative Bank was given to him and he encashed it on 9.12.1995; that it is incorrect to say that in November 1996, when the respondent/plaintiff came over from abroad he demanded the amount and then he gave a written undertaking promising to give back the amount in September 1997; that he had not borrowed any amount from the respondent/plaintiff RSA 906/08 3 at any time; that the earnings of both the respondent/plaintiff and himself were managed together without keeping any account; that lorry bearing Reg.No.KL-9/6408, which was in his name, was sold for Rs.3,40,000/- and the entire amount was deposited in the account of the respondent/ plaintiff; that even the amounts belonging to him was deposited in the account of the respondent/ plaintiff and such was the relationship between them; that the respondent/plaintiff was also sending cheques in his name without keeping any account and all those amounts were spent for meeting the family expenses at home; that in September 1996 when the respondent/plaintiff came over from Saudi Arabia, there was some difference of opinion between them and the relationship got strained and the respondent/plaintiff took the stand that an amount of Rs.1,50,000/- is due to him and as insisted by the respondent/plaintiff, a signed write up was given agreeing to pay an amount RSA 906/08 4 of Rs.1,50,000/- within 30.9.1996, but that he could not pay the amount within that time; that in discharge of that liability, the land and the building therein, which he had purchased from one Thottungal Narayanan under Sale Deed No.1236/1996, was assigned to the respondent/plaintiff; that under threat of the respondent/plaintiff, he could not go through the deed and understand the consideration mentioned in it; that after the assignment of that property, the respondent/ plaintiff admitted that all his liabilities stood discharged; that therefore, the respondent/ plaintiff is not entitled to any amount and that the suit has to be dismissed with costs. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of only the respondent/plaintiff and the appellant/defendant respectively as PW1 and DW1 and documentary evidence Exhibits A1 to A10, RSA 906/08 5 decreed the suit. The appellant/defendant filed A.S.No.12/06 before the District Court, Palakkad and the learned District Judge, vide judgment dated 7.7.2008, dismissed the appeal concurring with the findings of the trial court. Hence this Regular Second Appeal assailing the concurrent verdicts passed by the courts below. 5. It is vehemently contended before me by the learned counsel for the appellant that no proof is furnished by the respondent/plaintiff regarding encashment of the alleged cheque by the appellant/ defendant; that there were ever so many transactions between the appellant/defendant and the respondent/plaintiff; that all financial disputes between the parties were settled by execution of Exhibit A5 sale deed on 8.1.1997 and that the suit, in the circumstances, should have been dismissed. 6. It is worthy to note that though the appellant/defendant denied receipt of Rs.1,50,000/- RSA 906/08 6 by encahsment of the cheque dated 3.12.1995 as alleged in the plaint and execution of Exhibit A1 in the written statement initially, in the latter part of the written statement, he has, practically, admitted receipt of the amount, when he contends that during September 1996, when the respondent/ plaintiff came over from Saudi Arabia, there was some difference of opinion between the appellant/ defendant and respondent/plaintiff and their relationship got strained and the respondent/ plaintiff took up the stand that an amount of Rs.1,50,000/- was due to him and insisted for payment of so much amount and that no amount was due to the respondent/plaintiff and as insisted by the respondent/plaintiff Exhibit A1 was executed. The appellant/defendant, when examined as DW1, admitted in cross-examination that he has executed Exhibit A1 undertaking to pay Rs.1,50,000/- to the respondent before 30th September. Though no year is mentioned, from the pleadings, it is evident that RSA 906/08 7 the year is 1996, when the respondent/plaintiff came over from abroad. What DW1 states in cross- examination is that Exhibit A5 sale deed was executed by him in favour of the respondent/ plaintiff on 8.1.1997 in full settlement of all monetary liabilities to the respondent/plaintiff. He admits that he has purchased the property and the building so sold for an amount of Rs.35,000/- and Exhibit A5 shows that the self same property purchased by him under Exhibit A6 was being assigned to the respondent/plaintiff for a consideration of Rs.35,000/-. PW1 has stated that purchase under Exhibit A5 was being effected by making payment of Rs.35,000/-. 7. It is also worthy to note that in cross- examination, it is the case of the appellant/ defendant that there were ever so many transactions between himself and the respondent/plaintiff and that therefore, he is unable to say whether cheque dated 3.12.1995 was encashed by him or not. There RSA 906/08 8 is no convincing explanation given by the appellant/defendant to explain away the admission made in Exhibit A1 regarding his liability and unless the admission in Exhibit A1 is convincingly explained away, the said admission binds him and is conclusive against him. It is further worthy to note that though the appellant/defendant has contended that Exhibit A5 assignment deed was executed in favour of the respondent/plaintiff on 8.1.1997 specifying a total consideration of Rs.35,000/- in discharge of all the liabilities to the respondent/plaintiff, he did not issue any reply to Exhibit A2 lawyer notice dated 14.11.1997 demanding payment of the amount of Rs.1,50,000/- received by him vide cheque dated 3.12.1995 and acknowledged by him vide Exhibit A1, though the said notice was received by him under Exhibit A2(c) postal acknowledgment card. It has to be borne in mind that no ordinary prudent man would avoid sending a reply disputing his liability when a RSA 906/08 9 registered notice of demand is received through Lawyer and that too, especially in a case where the amount claimed is already discharged, if at all it is actually discharged by execution of Exhibit A5, as contended. The questions involved are practically a re-appreciation of evidence in the case and there is no question of law and much less, any substantial question of law arising for consideration by this Court in this Regular Second Appeal. I do not find any infirmity in the concurrent verdicts of the courts below, on evidence either, upholding the claim of the respondent/plaintiff and passing verdict against the appellant/defendant. In the result, I dismiss this Regular Second Appeal. 20th March, 2009 (K.P.Balachandran, Judge) tkv