IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 AS.No. 517 of 1995() -------------------- OS.239/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT/DEFENDANT --------------------------- GUNASEKHARANM, SON OF PARANGODAN POOVAKKATTIL, ARAKURUSSI AMSOM PERIMBIDARI DESOM, MANNARKKAD TALUK. BY ADV. MR.P.G.PARAMESWARA PANICKER (SENIOR) BY ADV.SRI.P.GOPAL RESPONDENT: PLAINTIFF ---------------------------- T.M. CHERIYAN, S/O.MARKOSE ABILASH, ARAKURUSSI AMSOM AND DESOM IN MANNARKKAD TALUK. (DIED. LRS. IMPLEADED) ADDITIONAL RESPONDENTS 2 TO 4 ----------------------------------------- ADDL.R2. ALEYKUTTY CHERIAN, W/O.CHERIAN, ABHILASH, NARANGAPATTA, T.S. ROAD, MANNARKKAD (P.0) ADDL.R3. ANUMOL, D/O.CHERIAN OF -DO- -DO- ADDL.R4. SINUMOL OF -DO- -DO- (ADDITIONAL RESPONDENTS 2 TO 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT AS PER ORDER DT. 8.10.2003 IN CMP 1179/2003) BY ADV. SMT.PREETHY KARUNAKARAN FOR ADDL.R2TOR4 SRI.R.RAJESH KORMATH FOR R2 TO 4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.4008/1995 IN A.S.NO.517/1995 7.4.2009 DISMISSED Sd/- M.SASIDHARAN NAMBIAR JUDGE /TRUE COPY/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO. 517 OF 1995 =========================== Dated this the 7th day of April,2009 JUDGMENT Defendant in O.S.239/1994 on the file of Sub Court, Ottapalam is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.25,000/- with interest due under Ext.A1 promissory note and Rs.30,000/- due under Ext.A2 agreement. According to the respondent, on 4.1.1993 appellant availed a loan of Rs.25,000/- after executing Ext.A1 promissory note and handing over a cheque undertaking to repay the same with interest at 12% per annum and thereafter on 25.7.1993 appellant again borrowed Rs.30,000/- undertaking to repay the same and executed Ext.A2 agreement and inspite of demand he did not repay and Ext.A3 notice was sent demanding the amount for which Ext.A4 A.S.517/1995 2 reply was sent denying the liability due under Ext.A2. Respondent sought a decree for realisation of the entire amount with interest at 12% per annum. 2. Appellant resisted the suit admitting that he borrowed Rs.25,000/- and executed Ext.A1 promissory note and also handed over a cheque and the said amount is due. But according to appellant he did not receive Rs.30,000/- as alleged or shown in Ext.A2 and he is not liable to pay the said amount. Appellant contended that though under Ext.A1 the rate of interest payable was 12% the agreed rate was at 48% and on the failure of the appellant to pay the amount, respondent threatened him to initiate civil and criminal proceedings unless he execute an agreement as dictated by the respondent and therefore Ext.A2 agreement was written and handed over to the respondent but he is not liable to pay the said amount and therefore the suit regarding the claim under Ext.A2 is to be A.S.517/1995 3 dismissed. 3. Learned Sub Judge framed the necessary issues. Respondent was examined as PW1. Appellant was examined as DW1. Learned Sub Judge on the evidence found that Ext.A2 shows that appellant had undertaken the liability to discharge Rs.30,000/- received by him from the respondent and though it was contended that Ext.A2 was vitiated by coercion, evidence is insufficient to prove that fact and therefore held that respondent is entitled to the decree. The suit was decreed directing appellant to pay Rs.63041/- with interest at 6% per annum on Rs.55,000/-, the principal amount from the date of the suit. Appeal is filed challenging the judgment with regard to Rs.30,000/- and interest. Appellant has not challenged that part of the decree enabling respondent to realise the amount covered under Ext.A1 promissory note with interest. 4. Learned senior counsel appearing for the appellant and learned counsel appearing for the A.S.517/1995 4 respondent were heard. 5. Learned senior counsel pointed out that Ext.A2 shows that the said agreement was executed on 25.7.1993 undertaking to repay Rs.30,000/-, which was received by the appellant on the same day and evidence of respondent as PW1 is sufficient to prove that Rs.30,000/- was not received by the appellant as stated in Ext.A2 and therefore the decree for realisation of that amount is unsustainable. Learned senior counsel pointed out that the case of the respondent at the time of evidence was not that Rs.30,000/- was paid by him or received by the appellant as stated in Ext.A2 on 25.7.1993 and instead case was that he had subscribed to a chitty conducted by the appellant and twenty two instalments were paid and towards the repayment of that amount, Ext.A2 agreement was executed and this case disproves the recitals in Ext.A2 and so no other evidence is necessary to prove that appellant did not receive Rs.30,000/- as A.S.517/1995 5 stated in Ext.A2 and therefore the decree to that extent is unsustainable. Learned senior counsel also pointed out that if in fact there was a chitty conducted by the appellant and respondent had remitted subscriptions and the amount stated in Ext.A2 was thus due, it would have been mentioned either in Ext.A2 or at least in Ext.A3 lawyer notice or in the plaint and the evidence unsupported by the pleading can only be ignored. It is therefore argued that the decree for realisation of Rs.30,000/- granted in favour of the respondent is to be set aside. 6. Learned counsel appearing for the respondent vehemently argued that eventhough appellant contended that Ext.A2 agreement was vitiated by undue influence and coercion, there is no acceptable evidence to prove the case. It was pointed out that in Ext.A4 reply, sent to Ext.A3 notice, appellant has no case that the interest payable for the amount borrowed under Ext.A1 A.S.517/1995 6 promissory note was not 12% as stated therein but 48% and that case developed at the time of filing the written statement and sought to be proved by the evidence of DW1 can only be rejected. Learned counsel also argued that Ext.A2 agreement is written in a stamp paper purchased by the appellant on 24.7.1993 and as DW1 he admitted that he purchased the stamp paper and evidence of DW1 establish that there was no threat by the respondent on 25.7.1993 when Ext.A2 agreement was executed and Ext.A2 establishes that he had undertaken the liability to pay Rs.30,000/-. It was argued that though the consideration for Ext.A2 is not the amount borrowed as stated therein or in Ext.A3 and the plaint, evidence of PW1 estabish that consideration for Ext.A2 was the amount due under the chitty conducted by the appellant and subscribed by the respondent and therefore findings of the learned Sub Judge is perfectly correct. A.S.517/1995 7 7. The only point for consideration in this appeal is whether appellant had borrowed Rs.30,000/- on 25.7.1993 and if so whether respondent is entitled to a decree for realisation of that amount. 8. Even if it is taken that Ext.A2 agreement was executed by the appellant and Ext.A2 contains a recital that appellant had undertaken the liabiity to repay Rs.30,000/- received, appellant is entitled to disprove the recitals in Ext.A2 and prove that he did not receive any consideration as stated therein. When Ext.A3 lawyer notice was sent by the respondent to the appellant, demanding the amount due in addition to the amount covered under Ext.A1, Rs.30,000/- covered under Ext.A2 was demanded stating that it was received on 25.7.1993 and Ext.A2 agreement was executed. In Ext.A2 also what is stated is that Rs.30,000/- was received by the appellant on 25.7.1993 and it is executed and not that the amount was received any day prior to A.S.517/1995 8 25.7.1993 much less on a chitty transaction. But when the respondent was examined as PW1 he has no case that Rs.30,000/- as stated in Ext.A2 was paid either on 25.7.1993 or it was paid in cash as a loan. On the other hand, his evidence was that appellant had conducted a chitty with a sala of Rs.80,000/- and monthly subscription of Rs.2500/- and respondent had remitted twenty two instalments and deducting the dividend the balance was due to the respondent from appellant and as on 25.7.1993 the balance was Rs.30,000/- and Ext.A2 was executed. Apart from the conspicuous absence of a liability under the chitty transaction in Ext.A2 and the pleadings, if in fact Rs.30,000/- shown in Ext.A2 was the amount which was liable to be returned by the appellant to the respondent in the chitty transaction Ext.A2 in the ordinary course would have revealed that appellant was conducting a chitty and respondent was a subscriber and out of the subscriptions paid respondent is entitled to A.S.517/1995 9 get Rs30,000/- and under Ext.A2 appellant has undertaken to repay the same. There was no impediment for showing the said fact in Ext.A2, if that was the true fact. In the absence of a case either in Ext.A3 or in the plaint that Rs.30,000/- stated in Ext.A2 was the amount due under chitty transaction, evidence of PW1 that Rs.30,000/- was due under the chitty transaction cannot be accepted. It is more so because according to the respondent, he has records to establish that appellant was conducting a chitty. It was deposed by PW1 in cross examination that he was in custody of the document to prove the remittance of the chitty amount to the appellant. Learned senior counsel appearing for the appellant rightly pointed out that when PW1 was examined, he did not produce any record and even after his examination he did not produce any document evidencing the chitty transactions or remittance of the amount in that chitty and instead when DW1 was cross examined a A.S.517/1995 10 document was shown and he was asked whether the initial therein was that of the appellant. Appellant had denied it. Respondent thereafter did not mark the same or sought to prove the same. Therefore there is absolutely no evidence to prove either that appellant was conducting a chitty or that respondent was a subscriber of the chitty or that he had remitted twenty two monthly instalments and Rs.30,000/- was due as on 25.7.1993. Therefore on the evidence it can only be found that the consideration shown in Ext.A2 was not received by the appellant. If that be so, respondent is not entitled to a decree for realisation of the amount shown in Ext.A2, for the sole reason that Ext.A2 shows that there was an undertaking. The question of enforcing an undertaking arises only if as stated therein, appellant had received Rs.30,000/-. When the evidence establish that he did not receive the consideration, respondent is not entitled to the decree granted by the trial court. A.S.517/1995 11 The appeal is allowed. The decree passed by Sub Court,Ottapalam in O.S.239/1994 is modified. The decree for realisation of Rs.30,000/- with interest covered under Ext.A2 is set aside. The claim in the plaint for realisation of the amount covered under Ext.A2 stands dismissed. The decree for realisation of Rs.25,000/- with interest at 6% per annum from 4.1.1993 till the date of the suit and thereafter at the rate of 6% per annum and proportionate cost is confirmed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- A.S.NO.517 /1995 --------------------- JUDGMENT 7TH APRIL, 2009