IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 AS.No. 688 of 1996(A) -------------------- AGAINST THE DECREE AND JUDGMENT DTD.23.6.1995 IN OS.781/1991 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/1ST DEFENDANT: -------------------------------- FRANCIS SAVIO, S/O.MATHEW, ARROKUZHIPPIL, MUTTUCHIRA P.O., KADUTHURUTHY, REPRESENTED BY POWER OF ATTORNEY HOLDER JOSE MATHEW, S/O.MATHEW AROOKUZHIPPIL, MUTTUCHIRA P.O. BY ADV. MR.V.G.ARUN MR.T.R.HARIKUMAR. RESPONDENT/PLAINTIFF: --------------------------- STATE BANK OF INDIA, CENTRAL OFFICE AT BOMBAY, BRANCH AT ARUNOOTTIMANGALAM, MULAKKULAM, VAIKOM, KOTTAYAM, REPRESENTED BY ITS PRINCIPAL OFFICER AND MANAGER, SRI.K.SIVASUBRAMONIAM. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.688 of 1996 - A --------------------------------- Dated this the 10th day of March, 2010 J U D G M E N T The 1st defendant in O.S.No.781 of 1991 on the file of the Principal Sub Court, Kottayam, is the appellant. The suit was decreed allowing the plaintiff to realise from the 1st defendant Rs.46,909/- with interest at the rate of 13.5% per annum from the date of suit till realisation. Aggrieved by the decree and judgment, the first defendant has preferred this appeal. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff is the State Bank of India, represented by the Branch Manager. It is the case of the plaintiff that the 1st defendant borrowed Rs.30,000/- from the plaintiff bank agreeing to repay it in monthly instalments at the rate of Rs.840/- commencing from 21.5.1988. The amount was borrowed on 21.4.1988. On the said date, the 1st defendant executed an agreement in favour of the bank and also hypothecated goods and machineries to the bank. The plaintiff filed the suit for A.S.No.688 of 1996 2 realisation of amount due as on the date of suit. The prayer is to pass a decree allowing the plaintiff to recover Rs.46,909/- with interest at the rate of 13.5% per annum. 3. In the written statement filed by the first defendant he questioned his own identity. According to the first defendant he is not K.V.Thomas and his name is Francis Savio. He denied the transaction with the bank. He also denied the averments in the plaint that on 31.3.1990 he acknowledged the liability to the bank. 4. In support of the plaint averments, the plaintiff examined PWs 1 to 4 and produced documents which are marked as Exts.A1 to A12. The power of attorney holder of the first defendant was examined as DW1. Exts.B1 to B4 were marked on his side. 5. The first defendant in the suit is K.V.Thomas @ Savio, S/o.K.V.Varkey. In the plaint the address of the first defendant is K.V.Thomas @ Savio, aged 28, S/o.K.V.Varkey, business man, Kidangil House, Kaduthuruthy, and now residing at Arookuzhippil House, Muttuchira, Vaikom Taluk. The name and address given A.S.No.688 of 1996 3 in the documents executed by the borrower are the same. PW1 testified that the first defendant Francis Savio introduced himself as K.V.Thomas and availed loan in that name. It has come out in evidence that the first defendant is not known by the name K.V.Thomas and that address given by him at the time of availing the loan was false. The court below examined whether the borrower Francis Savio availed the loan in the false name of K.V.Thomas. 6. The loan was sanctioned on 31.3.1988. On 21.4.1988 the first defendant executed an agreement and availed the loan. The court below discussed the oral evidence tendered by PWs 1 to 4. PW4 deposted before the court that Francis Savio admitted to him that it was he who borrowed the amount in the name of K.V.Thomas; the said Francis Savio went to the bank twice, promised to pay the amount within three months; and that Ext.A12 letter was handed over to him by Francis Savio. PW4 further testified that the hand writing in the letter was of Francis Savio and it was signed in his cabin by Francis Savio. The court below compared the signature in Ext.A12 letter with the admitted A.S.No.688 of 1996 4 signatures of the first defendant in other documents. The vakalath executed by Francis Savio and Ext.B2 power of attorney executed on 12.12.1992 are compared with the signature contained in Ext.A12 letter. The court below on a comparison found that the signatures are identical and held that there is no doubt that the author of all the signatures is one and the same person. The learned Judge also held that the hand writing are also identical and the handwriting in Ext.A12 letter are of the same person. The court below examined DW1, who is none other than the brother of the Francis Savio. According to the learned Judge his testimony does not inspire the confidence of the court. The court held that Ext.A12 letter was written by the person who executed the vakalath and Ext.B2 power of attorney and that is Francis Savio. In Ext.A12 letter, Francis Savio had admitted that it was he who borrowed Rs.30,000/- from the plaintiff bank on 21.4.1988. He had requested the manager not to set the criminal law in motion. He also promised to repay the amount within three months. Therefore, referring to Ext.A12 letter, learned Judge held that the admission is a substantive piece of A.S.No.688 of 1996 5 evidence and it establishes the allegations of the plaintiff that it was Francis Savio who borrowed amount from the plaintiff bank claiming himself to be K.V.Thomas. The court below relied on the evidence on PW4 which corroborates Ext.A12 letter produced by the bank. 7. It was further contended by the first defendant that the suit is barred by limitation. The court below examined the question of limitation also. The court below held that the transaction took place on 21.4.1988. The suit was filed on 18.9.1991; that the amount to be repaid in monthly instalment was Rs.840/-; and the first instalment was payable on 21.51988. It was found that the suit should have been filed before 21.7.1991 to claim all the instalments. The court held that the claim for the instalments payable on 21.7.31988 and 21.8.1988 are time-barred. The court relied on Ext.A12 letter to save the period of limitation. The trial court rightly held that Ext.A12 is sufficient to prove that the suit is not barred by limitation. 8. All the contentions raised by the defendant/appellant was considered in detail by the court. The court on oral and A.S.No.688 of 1996 6 documentary evidence found that the first defendant borrowed the amount claimed in the plaint and therefore the plaintiff is entitled to a decree for realisation of money. I do not find any reason to interfere with the findings recorded by the court on the basis of materials on record, facts and circumstances of the case. In the result, the appeal fails and it is accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-