IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 RSA.No. 977 of 2004() --------------------- AS.188/2002 of ADDL.DISTRICT COURT,KOTTAYAM OS.94/1999 of SUB COURT, PALA .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- K.N.GOPINATH, S/O. M.N.NARAYANAN NAIR, KARIMPANNOOR HOUSE, KUMMANNOOR KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT/ RESPONDENT/DEFENDANT: ------------------------------------ LEELA DIVAKARAN, S/O. DIVAKARAN, KALAPPURACKAL HOUSE, METHIRI KARA, RAMAPURAM VILLAGE, AMANA KARA P.O., KOTTAYAM. ADV. SRI.P.C.HARIDAS FOR R THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVEREDTHE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.977 OF 2004 --------------------------- DATED THIS THE 14TH DAY OF JULY, 2009 JUDGMENT Plaintiff in O.S.No.94/99 on the file of the Sub Court, Pala is the appellant. This appeal is directed against the judgment and decree in A.S.No.188/2002 on the file of the Additional District Court, Kottayam. The suit for realisation of money was dismissed by the trial court and was confirmed in appeal. Hence, this second appeal. 2. It is the case of the plaintiff that the defendant borrowed an amount of Rs.1,15,000/- from the plaintiff on 10/2/1999 agreeing to repay the amount on or before 10/8/1999 with interest at the rate of 18% per annum. Since the demand for payment was not acceded to, the suit was filed for realisation of the said amount. 3. In the written statement filed by the defendant, she denied the transaction and that the disputed cheque was given to -2- R.S.A.No.977/04 the plaintiff as security for the amount in connection with the employment. The defendant is the agent of the plaintiff. The plaintiff has been carrying on the business of distribution of Ayurveda medicines. According to the defendant, Ext.A1 cheque was happened to be issued by her by way of security while employed as a commission agent. The trial court examined the respective contentions of the parties in detail in paragraphs 7 to 9. The trial court referring to the evidence of PW-1 stated that it is not believable that the plaintiff who has no known the assets of his own and who conducts his business with the money borrowed from banks is likely to have lent Rs.1,15,000/- on 10/2/1999 as alleged by him. The trial court also appreciated the evidence of PW-1 in the right perspective and his admission as PW-1 that he runs the business of the agency with the overdraft facility of Rs.2,00,000/- borrowed from the S.B.T., Ramapuram. The trial court took into consideration that no account books showing the volume of his business and his income thereof have been produced and that except his own testimony there is nothing inh -3- R.S.A.No.977/04 evidence to show that the plaintiff had sufficient funds as on 10/2/1999 to lend Rs.1,15,000/- to the defendant. The plaintiff also admitted that the income of the defendant from her employment under him also was only around Rs.800/-. All these facts pointed out that there is no transaction as alleged by the plaintiff. Considering the financial capacity of the defendant it is highly improbable that an amount of Rs.1,15,000/- will be given as loan. 4. The second question examined by the court below is about the circumstances under which Ext.A1 cheque was happened to be issued by the defendant. After considering the question elaborately in paragraph 9 of the judgment, the trial court rightly concluded that there was no passing of consideration for Ext.A1 cheque, that Ext.A1 was bereft of consideration and therefore to ignore Ext.A8 as a subsequently cooked up document using the blank signed stamp paper. The trial court further held that the plaintiff could not establish the case that the amount in Ext.A1 cheque was given to the -4- R.S.A.No.977/04 defendant as a loan to her. The plaintiff filed A.S.No.186/2002 before the Lower Appellate Court. The Lower Appellate Court also considered elaborately the contentions raised in the appeal and reached the conclusions based on the same set of facts, circumstances and evidence. The Appellate Court in detail discussed the oral and documentary evidence and agreed with the findings of the trial court in paragraph 14 to 16 and dealt with the grounds urged by the appellant. Since the fact finding court reached the very same conclusions on the basis of evidence, facts and circumstances, I do not find any reason to interfere with the findings reached by the courts below. The appellant has not made out any grounds to invoke the jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. 5. In the result, the appeal fails and it is accordingly dismissed. 6. In paragraph 14 of the trial court's judgment it is stated that the parties were heard on the question of impounding -5- R.S.A.No.977/04 Ext.A8 document. Since it is insufficient, the court below during examination ordered to recover stamp duty and penalty on finding that Ext.A8 is a bond as defined in Section 2(a) of the Kerala Stamp Act. It is submitted by the learned counsel for the appellant that till date the stamp duty and penalty in respect of Ext.A8 document are not recovered, though the court ordered that there is nothing wrong in impounding the same and sending it to the Collector for realisation of the stamp duty and penalty. In the facts and circumstances especially when the plaintiff was non- suited by the trial court and the Lower Appellate Court with costs, I do not think it is a fit case for imposing penalty by way of impounding the document. Therefore, the direction to impound and recover stamp duty and penalty stands set aside. HARUN-UL-RASHID, Judge. kcv.