IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 RSA.No. 374 of 2009() --------------------- AS.74/2006 of ADL.SUB COURT, THALASSERY OS.403/2000 of MUNSIFF COURT, THALASSERY .................... (S): APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- N.K.RAJU MASTER, AGED 62 YEARS, S/O.KUNHIKANNAN, RETD.TEACHER, CHALLOTH HOUSE, P.O.THOTTADA, EDAKKAD VILLAGE, CHALA WEST, KANNUR. BY ADV. SRI.K.MOHAMMED RAFU SRI.A.K.ABDUL AZEEZ RESPONDENT(S): --------------- K.K.PRADEEPAN, PROPRIETOR, BABU ENTERPRISES, M.T.BAZAR, THALASSERY THROUGH POWER OF ATTORNEY HOLDER M.V.NALINAKSHAN, S/O.KRISHNAN, 'KRISHNA', PERUMATHATHIL, THALASSERY. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.374 of 2009 ---------------------------------------- Dated this the 15th day of June, 2009 JUDGMENT The defendant in O.S.No.403/2000 on the file of the Munsiff's Court, Thalassery is the appellant. The appeal is directed against the judgment and decree in A.S.No.74/2006 on the file of the Subordinate Judge, Thalassery. The trial court decreed the suit as prayed for and the same was confirmed by the appellate court. Hence the second appeal. 2. It is the case of the plaintiff that he and defendant are known to each other for the last five years, that he paid Rs.25,000/- as loan to the defendant when he undertakes to repay the amount within two days. It is further pleaded that on the next day itself the plaintiff wanted money and therefore he contacted the defendant and demanded for return of the money. Then the defendant issued a cheque for Rs.25,000/- dated 30/7/97, the cheque was subsequently dishonoured by the bank with the return memo (“funds insufficient”). Hence the suit was filed for realisation of the amount with interest. The defendant denied the transaction as alleged by the plaintiff. Before the trial court PW1 was examined and marked Exhibits A1 to A8 on the side of the plaintiff. No oral or documentary evidence was R.S.A.No.374 of 2009 2 adduced by the defendant. The trial court examined the evidence on record. The oral evidence of PW1 and Ext.A1 to A8 are also relied on by the trial court. It concluded that there is a transaction entered into between the plaintiff and the defendant and the defendant received Rs.25,000/- from the plaintiff as loan. The trial court further examined the case set up by the appellant and held that he has failed to prove discharge of the liability as pleaded in the written statement. Taken into account the fact that the plaintiff is a money lender and the other facts and circumstances the trial court held that the plaintiff is entitled to get a decree as prayed for in this suit. It is also held that the plaintiff has succeeded in proving that Ext.A1 cheque is supported by consideration and alleged transaction is a probable one. The trial court also examined the contentions raised by the defendant in detail and observed that it is for the defendant to rebut the resumption available to the plaintiff but no contra evidence is adduced from the side of the defendant. No oral evidence was adduced by the defendant denying the transaction alleged by the plaintiff which was proved by the oral evidence of the plaintiff and by the production of documents in support of the case. The Appellate court also considered the contentions raised by the appellant/defendant and came to the very same conclusions holding that the materials on record probabilise the case of the R.S.A.No.374 of 2009 3 plaintiff. The Appellate Court also observed that the defendant has also not even to enter into oral evidence. The transaction alleged by the plaintiff was found to be proved on facts. 3. I find that no sustainable grounds are made out to take a different view than the one taken by the courts below on facts. I find that no questions of law much less any substantial question of law arises for consideration in this appeal. Appeal therefore fails and accordingly it is dismissed. (HARUN-UL-RASHID, JUDGE) skj.