IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 RSA.No. 238 of 2011() --------------------- AS.211/2009 of SUB COURT, PERUMBAVOOR OS.362/2007 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/DEFENDANT ---------------------------------------------------------- M.A.BASHEER, AGED 55 YEARS, S/O.ABDU, MUTTATHUCHALIL HOUSE, SOUTH KARA, VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.SUNILKUMAR SMT.BEENA DEVASSY RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- VENUGOPAL, AGED 50 YEARS, S/O.RAGHAVAN NAIR, PLAPPILLIL HOUSE, SOUTH VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK 686670. ADV. SRI.P.V.ELIAS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 238 OF 2011 =========================== Dated this the 23rd day of September ,2011 JUDGMENT Defendant in O.S.362/2007 on the file of Munsiff's Court, Perumbavoor is the appellant. Plaintiff is the respondent. Suit was filed for realisation of Rs.65,750/- with interest alleging that he is a cook by profession and appellant offered him a job as cook in Sypham Ittalian Company in Muscat on the respondent paying Rs.65,750/- and giving him the passport and the documents. Accepting the offer, on 11.12.2006 respondent paid Rs.65,750/-. The amount was paid on the belief that appellant would arrange the job. But he did not make arrangement and appellant did not provide a job. Ultimately when the respondent demanded the amount, appellant did not pay the same and he is entitled to realise the amount. It was RSA 238/2011 2 also contended that appellant received money from several persons giving false job offers and several criminal cases were registered against him and appellant had executed Ext.A2 agreement undertaking to pay the amount in a stamp paper and the respondent is therefore entitled to realise the amount. Appellant resisted the suit contending that he had not offered any job to the respondent and had not received Rs.65,750/- on 11.2.2006 as alleged and he has not received any amount from any person on offering job and hence he is not liable to pay any amount. It was also contended that appellant has not given any document admitting the liability and Ext.A2 was not given by him and he had not issued Ext.A2 letter admitting the liability. 2. Learned Munsiff on the evidence of Pws.1 and 2, DW1, Exts.A1 to A4, B1 to B5 found that appellant had offered a job to the respondent in Muscat and received Rs.65,750/- and did not arrange RSA 238/2011 3 the job and did not repay the amount and therefore he is liable to repay the same with interest at 12% per annum from the date of payment till the date of the suit and thereafter at the rate of 6% per annum. 3. Appellant challenged the decree and judgment before Sub Court, Perumbavoor in A.S.211/2009. Before the first appellate court appellant produced certain documents and filed an application under Rule 27 of Order 41 of Code of Civil Procedure to receive them as additional evidence contending that on the date of Ext.A2 he was in judicial custody and therefore Ext.A2 could not have been executed by him voluntarily. Learned Sub Judge did not admit the documents or receive them as additional evidence. On reappreciation of the evidence, he confirmed the findings of the learned Munsuff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant RSA 238/2011 4 was heard. 5. The argument of the learned counsel is that courts below granted the decree solely based on Ext.A2 which could not have been executed by the appellant as he was in judicial custody on that date. It is contended that first appellate court should have admitted the additional documents produced and those additional documents would establish that appellant was in judicial custody on the date of execution of Ext.A2 and therefore the decree granted is not sustainable. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 7. The respondent has specifically contended in the plaint that appellant had offered him a job as a cook in an Ittalian Company at Muscat and demanded Rs.65,750/- promising to give the job. Accepting the offer respondent paid Rs.65,750/- on 11.12.2006. Respondent had obtained that amount RSA 238/2011 5 from his brother as well as by obtaining loan. Inspite of the promise, appellant did not provide the job or return the amount. It was also contended in the plaint that respondent had given the passport and other documents to the appellant. In the written statement appellant has denied the entire thing. Ext.A1 copy of the plaint, instituted by the appellant before Munsiff Court, Perumbavoor was produced by the respondent. Ext.A1 establishes that there is an unambiguous admission in that plaint that appellant along with Ali had received amount and passports from defendants 24 to 31 therein, including the respondent herein. True, there is an allegation that the amount received from those defendants as well as the other defendants, which would together to be more than Rs.24 lakhs, was entrusted to the first defendant in that suit. But it is admitted case that the suit was subsequently not prosecuted by the appellant. Therefore as rightly found by the RSA 238/2011 6 courts below, Ext.A1 establishes that the passport and money were received from the respondent herein, though it was alleged that the amount received as well as the passport were entrusted by the appellant to the first defendant in that suit. There is no evidence in support of that case. When respondent was examined as PW1, he has given evidence that appellant offered him the job and demanded Rs.65,750/- and respondent obtained the money from his brother and also by borrowing it from others and on 11.12.2006 he paid the amount to the appellant and also handover his passport. Learned counsel made available the copy of the deposition of PW1. It is seen from the deposition that the evidence of PW1 with regard to the acceptance of the offer, the payment of the money by the respondent to the appellant and receipt of the money by the appellant were not even challenged in cross examination. Therefore it is futile for the appellant now to contend that he did not offer RSA 238/2011 7 a job to the respondent or did not receive Rs.65,750/- from the respondent. Therefore even if Ext.A2, as canvassed by the appellant is not relied on, the unchallenged evidence of PW1 is sufficient to grant the decree. On the evidence as rightly found by the courts below, Ext.A2 is not a fraudulent document as canvassed by the appellant. On the evidence, Ext.A2 can only be accepted. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006