IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 RSA.No. 887 of 2011() --------------------- AS.220/2008 of DISTRICT COURT, KOTTAYAM OS.367/2006 of MUNSIFF COURT, VAIKOM .................... APPELLANT/IST RESPONDENT/IST DEFENDANT ---------------------------------------------------------- BALAGOPAL.R.,AGED 46,S/O.RAGHAVA PANICKER,BHADRALAYAM,THEKENADA,NADUVILEMURI KARA, VAIKKOM, KOTTAYAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): --------------- 1. PAZHEMADAM FINANCE (P) LTD.,REP.BY ITS EXECUTIVE DIRECTOR K.V.JOLLY,S/O. VARGHESE, KAREEMADAM HOUSE, KIZHAKKEKARA, VADAYAR VILLAGE, VAIKOM. 2. RAJAMMA,W/O.RAJAGOPALAN NAIR,R/AT RAJAMANDIRAM,PADINJATTUMCHERY, VAIKKOM PO, KOTTAYAM DISTRICT. 3. SYAMALA DEVI,D/O.RAJAGOPALAN NAIR, W/O.BABY , NOW R/AT KARULLIL HOUSE, IRUMPANAM PO, THRIPUNITHURA, KANAYANNUR TALUK. 4. JAYACHANDRAN,S/O.LATE RAJAGOPALAN NAIR, R/AT RAJAMANDIRAM,PADINJATTUMCHERRY, PADINJAREMURI KARA, VAIKKOM PO, NADUVILE VILLAGE, VAIKKOM TALUK. 5. PAZHEMADAM FINANCE (P) LTD., REP.BY MANAGING DIRECTOR,E.K.LUKA,S/O.KURIAKOSE, PAZHEMADAM,VALLAKOM KARA, NADUVILE VILLAGE, VAIKKOM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.887 of 2011 ............................................ DATED THIS THE 8th DAY OF AUGUST, 2011 JUDGMENT Appellant is the first defendant in O.S.367 of 2006 on the file of Munsiff Court, Vaikkom. The suit was filed for realisation of the amount due under a chitty transaction. Respondents contended that appellant had subscribed to two chitties with a sala of Rs.50,000/- each being B class numbers 347 and 349, and he bid the chitty on the 6th instalment on 10.7.2003 for Rs.60,000/- and on receipt of the chitty amount, executed Ext.A3 receipt and Ext.A4 agreement and second defendant was the surety and under Ext.A4, he agreed to pay the future instalments from 8th instalment onwards at the rate of Rs.1250/- per instalment but he failed to pay the instalments from 14th instalment onwards. Plaintiff therefore sought a decree for realisation of the amount. Appellant filed a written statement resisting the suit contending that he has not subscribed to any chitty and he had not bid the chitty and he had not executed any agreement. It was contended that in June 2003, he had borrowed RSA 887/2011 2 Rs.5000/- and towards the security as insisted, issued a signed blank stamp paper for Rs.50/- and the suit was filed without any bonafides. The second defendant died before the institution of the suit and respondents 2 to 4, the legal heirs were impleaded. 2. Learned Munsiff on the evidence found that the suit as against the legal heirs of the second defendant is barred by time as second defendant died prior to the institution of the suit and the legal heirs were impleaded only after expiry of the period of limitation. Learned Munsiff on appreciating the evidence of Pws 1 and 2, DW1 and Exts.A1 to A10, dismissed the suit finding that evidence of PW1 does not establish execution of Ext.A4 agreement and evidence of PW2 also will not help the plaintiffs to establish the transaction and his evidence would only show that he attested the application for joining the chitty. The decree was challenged by the second plaintiff before District Court, Kottayam in A.S.220 of 2008. Learned District Judge, on re-appreciation of the evidence found that though PW1 had no personal knowledge of the transaction, evidence of PW2 establishes that he was present at the time when appellant received the amount due under the chitty and executed Ext.A4 agreement. Learned District RSA 887/2011 3 Judge also found that at the time of evidence, appellant as DW1 admitted the signature in Ext.A3 receipt issued for receipt of the amount. On a proper appreciation of evidence, it was found that appellant had received the amount as claimed by the plaintiffs and executed Ext.A3 receipt and Ext.A4 agreement and therefore granted a decree directing the appellant to pay Rs.98,125/- with interest at the rate of 9% per annum on the principal amount of Rs.67,500/- from the date of the suit till realisation. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that first appellate court did not properly appreciate the evidence and when the evidence of PW1 establishes that he was not present at the time of the transaction and the evidence of PW2 is insufficient to prove the execution, a decree should not have been granted. Learned counsel finally submitted that in any case, appellant may be granted time to pay the decree amount in instalments. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Appellant had denied not only the execution of Ext.A4 agreement but the very RSA 887/2011 4 fact that he was a subscriber to the two chitties as claimed by the plaintiffs. At the time of evidence, appellant as DW1 admitted his signature not only in Ext.A4 but even in Ext.A3 receipt, evidencing the receipt of the amount due under the chitties bid by him. First appellate court on proper appreciation of evidence found that evidence of PW2 establishes that he was present at the time when appellant received the amount and executed Ext.A3 and A4 and therefore granted a decree. I find no illegality in the factual finding rendered by the first appellate court based on the evidence on record. In such circumstances, the appeal can only be dismissed. Appeal is dismissed. As the learned counsel submitted that appellant is prepared to pay the amount within a period of three months, it is made clear that the decree shall not be executed for three months to enable the appellant to pay the amount. M.SASIDHARAN NAMBIAR, JUDGE lgk