IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 AS.No. 382 of 1997() -------------------- OS.312/1994 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)PLAINTIFF: ------------------------------------- C.S. BHASKARAN, AGED 34 YEARS, RESIDING AT CHULLIPARAMBIL HOUSE, MULLASSERI AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S)DEFENDANT: ----------------------------------------- A.S. SAJITH, AGED 24 YEARS, S/O. SUKUMARAN, RESIDING AT ANDUPARAMBIL HOUSE, JOSEPH ROAD, KELATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK (DIED) LEGLAL HEIRS. 1. VENGALI SUSEELA (MOTHER) ANTHUPARAMBIL HOUSE, JOSEPH ROAD, CALICUT. 2. SONI, 2/O. ANILKUMAR, CHANDHI NIVAS, PAYYANADAN HOUSE, CHALAPURAM, CALICUT-2. 3. ANTHUPARAMBIL SONA, SISTER OF SAITH, -DO- -DO- 4. ANTHUPARAMBIL ABHILASH, BROTHER OF SAJITH, -DO- -DO- ADV. SRI.M.PREMCHAND SRI.P.V.GIRI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON 12/01/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - .A.S. No. 382 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2010. JUDGMENT The non-suited plaintiff is the appellant. 2. The suit was one for money. According to the plaintiff, the defendant had borrowed a sum of Rs.45,000/- from him for his business purpose and had executed a promissory note dated 22.6.1993 undertaking to return the amount within four months with 10% interest. The defendant did not repay the amount as undertaken by him. Therefore, the plaintiff issued Ext.A1(a) notice calling upon the defendant to repay the debt due to him. No reply was furnished. Since the amount remained unpaid, the suit was laid. 3. Since the defendant was laid up due to paralysis and not able to defend himself, his mother was appointed as his next friend. The next friend filed a written statement denying the transaction put forward in the plaint. She would say that the defendant had no occasion, necessity or need to borrow A.S. 382/1997. 2 from the plaintiff and the plaintiff had no financial ability or capacity to pay a sum of Rs.45,000/-. Denying the allegations in the plaint, she prayed for a dismissal of the suit. 4. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and marked Exts.A1 to A4 from the side of the plaintiffs. The defendant examined D.W.1. Ext.X1 was marked as third party exhibit. On a consideration of the materials before it, the court below came to the conclusion that the plaintiff had failed to prove the alleged transaction and accordingly dismissed the suit. The said judgment and decree are assailed in this appeal. 5. The only question that arises for consideration is whether the court below was justified in dismissing the suit. 6. Initially, it appears that the suit was based on a promissory note said to have been executed by the defendant in favour of the plaintiff. It was then found that the said promissory note was insufficiently stamped and was not admitted in evidence. A.S. 382/1997. 3 Thereafter the plaintiff filed an amendment petition seeking to fall back upon the original transaction in support of his claim for refund of money. Since the document that was sought to be tendered in evidence was inadmissible in evidence, there was nothing to show that the defendant had infact borrowed a sum of Rs.45,000/-, except the oral testimony of the witnesses. 7. There can be no dispute regarding the fact that even if the promissory note is inadmissible in evidence, the plaintiff can fall back upon the original transaction and pray for return of the amount due to him. Therefore the amendment of the plaint does not alter the position as the parties are concerned. But the fact remains that the plaintiff has still to prove that the claim made by him is genuine and he had infact paid Rs.45,000/- to the defendant. He has examined P.W.3 in support of his claim. As rightly noticed by the court below P.W.3 is a very close friend of P.W.1. That may not by itself be an infirmity. It is only reasonable and probable that a close friend would have watched the transaction. A.S. 382/1997. 4 But the lower court has meticulously analysed his evidence and has come to the conclusion that regarding his own matters he is unable to give the details, but regarding the transaction he has given meticulous details. His evidence was found unworthy of credit. The court below has also noticed that the documents produced by the plaintiff namely Exts.A2, A3, A4 etc did not show that the plaintiff had sufficient means and capacity to advance a sum of Rs.45,000/- as claimed by him. It must be remembered that the document, on the basis of which the suit was laid, was not before court. If that document was before court, at least there could have been a comparison of the signatures. It has come out in evidence that in fact the plaintiff had borrowed a sum of Rs.20,000/- from the defendant and it is true that it has been re-paid by him as evidenced by Ext.X1. As rightly noticed by the court below, there is nothing to indicate that the defendant was in dire need of money even though the plaintiff would say that the borrowal was for the business purpose of the defendant. If as a matter of fact the A.S. 382/1997. 5 defendant could advance a sum of Rs.20,000/- to the plaintiff, it is rather unbelievable that soon thereafter the defendant would borrow a sum of Rs.45,000/-. 8. The evidence disclosed that the defendant was running a hotel business till he was bed ridden. For a short while thereafter his mother looked after the business and presently it is being run by the younger brother of the defendant. It was on a consideration of the materials before it that the court below had come to the conclusion that the plaintiff has failed to establish the transaction as alleged by him. 9. It is difficult to believe that if as a matter of fact there was a transaction between the plaintiff and the defendant, the plaintiff would not have taken care to ensure a proper document in support of his claim. Moreover, there is no evidence to show that the plaintiff had the capacity to advance Rs.45,000/- to the defendant. The defendant had taken a definite contention in the written statement that the plaintiff was not financially well off to A.S. 382/1997. 6 advance the amount as claimed by him. This is further fortified by the fact that he had borrowed a sum of Rs.20,000/- from the defendant. On a careful analysis of the evidence in the case, the court below had come to the conclusion that the plaintiff had failed to establish his case. No grounds are made out to interfere with the judgment and decree of the court below. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. A.S. 382/1997. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - . A.S. No. 382 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 12.01.2010.