IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 RFA.No. 823 of 2008(E) --------------------- OS.98/2007 of I ADDL.SUB COURT,ERNAKULAM .................... APELLANT/ DEFENDANT --------------------------------------- P.K.UTHUP, S/O.KURIAKOSE, AGED 57 YEARS RESIDING AT PAZHUKALIYIL HOUSE, KADATHY.P.O, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.J.KURIACHAN RESPONDENT/ PLAINTIFF ------------------------------------ MR.K.P.DAMODHARAN NAIR, S/O.A.KUNJAMBU NAIR, AGED 67 YEARS,RESIDING AT 35/1872, "SHABARI",SOUTH JANATHA ROAD,PALARIVATTOM DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, KOCHI-682025. BY ADV. SRI.MATHEW SKARIA FOR R SRI.JOSE THOMAS (PEEDIKAYIL) FOR R SRI.K.J.JOSEMON FOR R SRI.SUJESH J.MATHEW FOR R THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 5146 / 2008 IN R.F.A. NO: 823 / 2008 DISMISSED. SD/- (K.M. JOSEPH) JUDGE SD/- (M.L. JOSEPH FRANCIS) JUDGE 17.11.2009 // TRUE COPY // PA TO JUDGE K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 823 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of November, 2009 JUDGMENT Joseph, J. The appellant is the defendant. The respondent/ plaintiff instituted the suit for money. The case of the appellant, inter alia, is as follows. The parties maintained a business relationship since 1990 onwards. They were doing business at Puthukad. At that time the appellant had entrusted Rs.5,75,000/- to one of the partners of the plaintiff and the defendant, one K.K. Jose, towards payment of sales tax arrears. The respondent/plaintiff had also entrusted a cheque for Rs.4,75,000/- as security towards repayment of balance amount, entrusted by the appellant to the aforesaid transaction. Out of the above, a sum of Rs.2,25,000/- alone was remitting towards tax. The balance amount of R.F.A.No. 823 of 2008 2 Rs.3,50,000/- was due to the defendant from the plaintiff. Simultaneously, the defendant borrowed Rs. 7 lakhs from the plaintiff, on condition that he would pay the amount in 30 monthly instalments of Rs.32,500/- It is the further case of the appellant that 19 instalments were made by proper acknowledgment by the plaintiff. It was further stated that misusing the cheque and documents the litigation is resorted to. 2. The court below proceeded to find that the respondent/ plaintiff admitted repayment of 10 instalments as per Ext.B3, which is a handbook maintained by the defendant. According to the appellant, 19 instalments had been paid. It is found that payment of 10 instalments were effected through bank. The court found that the appellant has not discharged the burden, except production of Ext.B3, and therefore he is not entitled to claim any amount from the respondent. R.F.A.No. 823 of 2008 3 3. The court below placed reliance on Ext.A1, which is the letter of confirmation given by the appellant to the respondent. Ext.A2 is a photocopy of the cheque, which was admittedly a blank cheque at the time of execution. It is found that the appellant nodded for the presentation of the cheque by filling up the blank columns therein. The trial court also did not rely on Ext.B1, the original cheque for Rs.4,75,000/- and Ext.B2 agreement executed by the appellant in favour of the partners of the firm. 4. We heard the learned counsel for the appellant and the learned counsel for the respondent. 5. The learned counsel for the appellant would contend that this is a case where the appellant had specifically sought for reference of the matter to a handwriting expert. His application was rejected by the court below. According to him, the rejection of the application is erroneous and affects his case, as he has been R.F.A.No. 823 of 2008 4 deprived of an opportunity to establish his case. We see merit in this contention. We feel that the appellant should be given an opportunity to prove his case by having the matter referred to a handwriting expert. In such circumstances a remand is inevitable. 6. Accordingly we allow this appeal, set aside the judgment and decree of the court below and remand the matter back for fresh consideration and disposal in accordance with law. The parties shall appear before the court below on 10.12.2009. The court fee paid by the appellant in this appeal will be refunded to him. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm