IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 SA.No. 948 of 2000(D) ------------------------------- AS.102/1995 of ADDL. DISTRICT COURT-I, MAVELIKKARA OS.133/1994 of MUNSIFF COURT, KAYAMKULAM .................... APPELLANT-APPELLANT/DEFENDANT: ---------------------------------------------------------- MADHAVAN PILLAI, CHITTY FUND FOREMAN, SANTHY NILAYATHIL, PATHIYOOR KIZHAKKUM MURI, PATHIYOOR VILLAGE. BY ADV. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) RESPONDENTS-RESPONDENT/PLAINTIFF: --------------------------------------------------------------- G. MAHADEVAN PILLAI, LEKHA BHAVAN, PATHIYOOR KIZHAKKUM MURI, PATHIYOOR VILLAGE. BY ADV. SRI.S.M.PREM, SMT.K.P.SANTHI. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ---------------------------- S.A.No. 948 of 2000 --------------------------------- Dated this the 7th day of June, 2011 JUDGMENT The appellant is the plaintiff in O.S.No.133/1994 before the Munsiff's Court, Kayamkulam. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is an admitted fact that the defendant was the foreman of a chitty and plaintiff was the subscriber of the said chitty. According to the plaintiff, he had remitted 40 instalments from 31.07.1990 till 15.10.1993. The chitty was for a sum of Rs.12,000/-. He alleged that 39th and 40th instalments were not recorded in the pass book, as it was not taken to the office at the time of remittance of the amount. Plaintiff requested the defendant to give back the entire amount after deducting the chitty commission, which was not paid. Plaintiff issued a notice, calling upon the defendant to pay back the amount with interest. Since there was no response, the suit is filed for realization of the amount with interest. 3. The suit was resisted by the defendant. According to the defendant, the averments in the plaint that the 39th ad 40th S.A.No. 948 of 2000 2 instalments have been paid are untrue. The total amount due to the plaintiff was only 10,800/-. He had stood as a surety for a subscriber by name Prasannan. Prasannan had defaulted to pay the instalments after biding the chitty in his name and receiving the amount. On that account a sum of Rs.4,400/- with interest is due to the defendant from the plaintiff, as surety of Prasannan. That amount was adjusted towards the amount due to the plaintiff and balance amount of Rs.4,000/- was paid as per Ext.B1 receipt. On the basis of these allegations, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. Defendant had DWs 1 and 2 examined and document marked as Ext.B1. The trial court on an evaluation of the evidence found that the plea taken in the plaint, 39th and 40th instalments have been paid has not be proved. However, the contention of the defendant that he had paid Rs.4,000/- to the plaintiff by cash as evidenced by Ext.B1 was found against by the S.A.No. 948 of 2000 3 trial court. After making the necessary adjustment the court below determined the amount due to the plaintiff as Rs.10,800/-. The decree was accordingly granted for the said amount. 5. The aggrieved defendants carried the matter in appeal as A.S.No.102/1995 before the Additional District Court, Mavelikara. The lower appellate court on an independent consideration of the materials before it found no reason to take a different view than one taken by the trial court and dismissed the appeal. 6. Notice is seen issued on the following substantial questions of law: “i. Did not the courts below act without jurisdiction and contrary to law in entertaining the suit and passing the impugned decree in view of the express exclusion of jurisdiction in view of section 64 of the Chit Funds Act, 1982? ii. In view of the fact that the plaintiff disowned the signature in the vakkalath, did not the lower appellate court act contrary to law in comparing the signature in exhibit B1 and the one in the vakkalath and the plaint etc. to hold in favour of the plaintiff? iii. On the facts and in the circumstances of the case, did not the lower appellate court act contrary to law and unreasonably in comparing the signature in exhibit B1 and the one in the vakkalath and the plaint etc. to hold in favour of the plaintiff, in view of section 73 of the Indian Evidence Act? iv. Having disbelieved the evidence of PW1 on the most crucial aspect of the case, as to whether he had paid the entire S.A.No. 948 of 2000 4 subscription for the chit as pleaded by him and he having disowned the signature in the vakkalath, thus proving himself to be unworthy of credence, did not the courts below act contrary to law in acting on his evidence to decree the suit ? Did not the courts below act contrary to law in the matter of appreciating the oral and documentary evidence in the case?” 7. The learned counsel appearing for the appellant very vehementally contended that the courts below were not justified in decreeing the suit in favour of the plaintiff. The learned counsel contended that the act of the trial court making a comparison of the signature in Ext.B1 and other available signatures is quite uncalled for and the decision is unsustainable in law. Referring to the evidence of PW1 it was contended that it cannot be believed at all. These vital aspects have been omitted to be noticed by the courts below and that according to the learned counsel resulted in miscarriage of justice. 8. Though the arguments look very attractive, they are without any basis whatsoever. As rightly noticed by the courts below, the defendant in the suit being foreman of a chitty, should be in possession of necessary documents to substantiate his contention. Except for the mere production of Ext.B1 document which was found to be concocted by the trial court and also by S.A.No. 948 of 2000 5 the lower appellate court nothing else was done. One may remember here that he has admitted that the amounts were due to the plaintiff. The case of the defendant was that plaintiff had stood as a surety for one Prasannan, who was a subscriber for the chitty. Prasannan received the amount and thereafter defaulted repayments. The defendant had a case that a sum of Rs.4,200/- was due from the plaintiff to the defendant. Except for mere assertion there was no evidence or proof at all adduced by the defendant in support of his claim. The courts below rightly rejected the said contention. 9. The complaint raised on the basis of comparison of signature though may have some substance, decisions of the courts below were not solely on the basis of Ext.B1 alone. Both the courts below have taken into consideration the evidence adduced by the parties and non-production of documents by the defendant which would have established his case. Thereafter, the courts below have come to the conclusion that the plaintiff's case was more probable. 10. Ext.B1 can be treated only as a receipt. Both the courts S.A.No. 948 of 2000 6 below have considered the admission of the defendant that the amount was in fact due to the plaintiff. Both the courts below have also found that the claim of the plaintiff 39th and 40th instalments were remitted to be untrue. After interest and commission due to the defendant the amount was arrived at by the trial court which was confirmed in appeal. 11. The findings of the evidence are based on appreciation of the evidence in the case and are question of facts and no substantial question of law arises for consideration in the second appeal. It is pointed out that in pursuance of the direction of this court, Rs.5,000/- has been deposited before the court below. If it is so, it will be adjusted towards the decree debt. The second appeal is without any merits and accordingly, it is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln