IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 SA.No. 584 of 1995(C) --------------------- AS.165/1994 of ADDL.SUB COURT, THALASSERY OS.245/1992 of MUNSIF COURT, KUTHUPARAMBA .................... SECOND APPELLANT(S):APPELLANT:DEFENDANT: ---------------------------------------------------------------------------- P.K. MADHAVAN, S/O.RAMUNNI, AGED 52 YEARS, NO OCCUPATION, RESIDING AT HIRAN CELL, ERANHOLI AMSOM, DESOM, THALASSERY TALUK, POST ERANHOLI. BY ADV. MR.T.A.RAMADASAN RESPONDENT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------------- C.M.PRADEEPAN, S/O.PADMANABHAN, AGED 26 YEARS, BUS CONDUCTOR, RESIDING AT NAVARANGAM HOUSE, THILLENKERI AMSOM AND DESOM OF TELLICHERRY TALUK. BY ADVS. MR.V.V.ASOKAN, MR.K.I.MAYANKUTTY MATHER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K. M. JOSEPH, J. -------------------------------------- S.A.NO. 584 OF 1995 C -------------------------------------- Dated this the 10th June, 2009 JUDGMENT Appellant is the defendant. There is a Suit for money filed by the respondent. The respondent alleged that he had applied for the post of temporary Conductor in Hiran Travels bus owned by the appellant and paid Rs.10,000/= as required by the owner as security deposit. Further, a sum of Rs.5,000/= also was paid to the appellant, was the case of the plaintiff. In this regard, the plaintiff relied on Ext.A1 as the endorsement regarding payment of Rs.5,000/= more. It is the further case of the respondent that the vehicle owner, namely the appellant, transferred the ownership of the vehicle, but he did not repay the amount. He sent Ext.A2 lawyer notice to which there was no reply and hence the Suit. 2. According to the appellant, the plaintiff was a member of the Kannur District Engineering and Motor Masdur Sangh. The amount payable to the plaintiff, namely Rs.12,149/= had SA.NO.584/95 C 2 been paid to the plaintiff through the Union. He relied on Exts.B1 and B2. The trial court came to the conclusion that the plea of discharge cannot hold good. It is found, inter alia, that Exts.B1 and B2 are not proved in accordance with law. It is also noticed that there is no whisper relating to the difference of amount between a sum of Rs.15,000/= and a sum of Rs.12,149/= which was alleged to be returned to the appellant. It is found that neither the plaintiff, nor the defendant are parties to Ext.B1. The person who wrote the same was not examined. It is further found that there is no evidence before the court to show that Shri M. V. Suresh was managing the Company during the time. The agreement is purported to be executed by Shri M. V. Suresh on behalf of the defendant. In the cross-examination of DW2, he admitted that the bus was sold to one Shaji as per Ext.B1. The Court noted the contention of the appellant that the bus was subsequently sold to one Sajith Kumar. The person to whom the bus was sold as per Ext.B1 was not examined. The parties thereto were not examined. DW2 was a former President of the SA.NO.584/95 C 3 Kannur District BMS and the present Secretary of the said Union. He is found to have neither written the contents of Ext.B1, nor is he a party to Ext.B1. The appellate court noted that there is no reason why a receipt was not obtained from the respondent if, in fact, he has received the amount. It also found that even if the appellant's case is accepted, the compromise between the Union and Shri Sajith Kumar would not bind the respondent, inter alia. 3. I heard the learned counsel for the appellant and the learned counsel appearing on behalf of the respondent. Essentially, what is assailed before me is the finding that the appellant failed to repay the amount. It may be true that the plaintiff was not examined. But, it is to be noted that this is a case where the receipt of Rs.15,000/= is not disputed. It was for the appellant to discharge the burden and show that he has repaid the said amount. It cannot be said that Exts.B1 and B2 have not been considered. It is after appreciating Exts.B1 and B2 that the courts below have reached the conclusion that the SA.NO.584/95 C 4 appellant's case cannot be accepted. It is essentially a question of appreciation of evidence. I would think that the appellant has not made out a case under Section 100 of the CPC. Accordingly, the Second Appeal is dismissed with costs to the respondent. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.584/95 C 5 K.M. JOSEPH, J. S.A.NO.584 OF 1995C JUDGMENT 10th June, 2009.