IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RSA.No. 179 of 2010() --------------------- A.S.NO.58/2008 OF SUB COURT, VADAKARA. OS.4/2007 of MUNSIFF COURT, VADAKARA .................... APPELLANT/APPELLANT/DEFENDANT: -------------------- GEETHA, AGED 46 YEARS, W/O.KUMARAN, KAREECHERI VEEDU, EDACHERRY POST, EDACHERY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.P.M.HABEEB RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- V. PRADEEP KUMAR, S/O.GOPALAN, AGED 48 YEARS, CONTRACTOR, VALIYAPARAMBATH HOUSE, NADAKKUTHAZHA AMSOM, PUTHUPPANAM DESOM, VATAKARA TALUK, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.179 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of February, 2010 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned Sub Judge, Vatakara in A.S. No.58 of 2008 confirming judgment and decree of learned Munsiff, Vatakara in O.S. No.4 of 2007. As per decree under challenge appellant-defendant is saddled with liability to pay Rs.1,00,000/- with interest at the rate of 6% per annum from the date of suit till realisation. According to the respondent, appellant agreed to sell her vehicle to the respondent for a total consideration of Rs.3,00,000/- and received Rs,1,00,000/- as advance. Balance amount was to be paid to the appellant and the vehicle to be delivered to the respondent on 12.2.2006 after clearing the existing liability on the vehicle. Respondent approached appellant on 12.2.2006 ready to perform her part of the contract but learnt that existing liability on the vehicle had not been cleared even on that day. Appellant requested further time. Respondent wanted appellant to return the advance amount and accordingly a fresh agreement was executed on 15.2.2006 cancelling the agreement dated 12.12.2005. As per the latter R.S.A. No.179 of 2010 -: 2 :- agreement appellant agreed to return the advance amount and issued a cheque for the said sum of Rs.1,00,000/- in favour of the respondent. That cheque on presentation was returned for insufficiency of funds. In spite of dishonour intimation and notice given to the appellant she did not pay the amount. Hence the suit. Appellant made a counter claim denying the agreement dated 12.12.2005 and receipt of the advance amount. She pleaded that she had no transaction with the respondent. Instead she had transaction with one Mohanan who had offered to arrange loan from M/s.Sakthi Finance. Mohannan introduced husband of the respondent as an agent of M/s.Sakthi Finance. Accordingly she happened to give signed blank cheques to Mohanan. Respondent has acted as benami of Mohanan. Mohanan also caused complaints to be filed against the appellant based on the remaining cheques. Prayer in the counter claim is to direct respondent to hand over the vehicular documents and signed blank cheques. Respondent filed a replication to the counter claim denying the allegations and asserting averments in the plaint. Trial court found against contentions raised by the appellant and decreed the suit while counter claim was dismissed. First appellate court confirmed the R.S.A. No.179 of 2010 -: 3 :- same. Hence the Second Appeal urging by way of substantial question of law whether findings entered by the courts below are erroneous. It is contended by learned counsel that there is no proper appreciation of evidence let in by the appellant and the claim made in the counter claim. 2. Respondent gave evidence as P.W1 and testified to her case. She proved Exts.A1 to A10. Exhibits A2 and A3 are agreements dated 12.12.2005 and 15.2.2006 between appellant and respondent of which the former evidenced receipt of Rs.1,00,000/- by the appellant and the latter cancelled the former on account of inability of appellant to fulfill her part of the contract. As per Ext.A3 appellant agreed to return the sum of Rs.1,00,000/- received as advance to the respondent and issued Ext.A4, cheque dated 16.9.2006 as security. Dishonour of that cheque for insufficiency of funds is proved by Exts.A5 and A6. Notice of dishonour was given to the appellant as proved by Exts.A7 to A9. Exhibit A10 is the reply. Contra evidence is given by the appellant as D.W.1. Courts below were not inclined to accept the evidence of D.W.1 in the absence of any corroborating material. Courts below after consideration of the evidence accepted the testimony of the respondent as P.W.1 and R.S.A. No.179 of 2010 -: 4 :- Exts.A2 to A10. Exhibit A1 is the form of notice of transfer dated 12.12.2005 as per which the vehicle was proposed to be transferred to the respondent. Thus findings of courts below rest on appreciation of evidence and it does not present any substantial question of law. Second Appeal is only to be dismissed. 3. At this stage learned counsel for appellant submitted that the vehicle belonging to the appellant and valued at about Rs.4,00,000/- is proposed to be sold in court auction this day. Learned counsel requested that appellant may be granted six months’ time to pay off the amount, otherwise, if vehicle is sold appellant will be put to heavy loss and irreparable injury. Counsel submits that appellant is prepared to furnish Bank Guarantee as security for the amount due under the decree under challenge. 4. Having regard to the circumstances stated by the learned counsel I am inclined to direct the executing court to adjourn the sale of the vehicle for a period of seven days from this day on condition that appellant waived fresh proclamation for such sale. I make it clear that it will be open to the appellant to make a request to the executing court to grant her time for payment of the decree amount on condition of furnishing Bank Guarantee or such R.S.A. No.179 of 2010 -: 5 :- other security as the executing court finds it fit after hearing counsel for the respondent also. If any such request is made the executing court shall consider the same after hearing counsel for respondent as well. Resultantly, Second Appeal is dismissed in limine. It is directed that sale of the vehicle scheduled to be conducted this day in E.P.No.104 of 2008 in O.S. No.4 of 2007 of the court of learned Munsiff, Vatakara will stand adjourned for seven days from this day on condition that appellant waived fresh proclamation for such sale. I make it clear that it will be open to the appellant to make the request in the executing court for time for payment of the amount due under the decree and if any such request is made, that court will consider the request as stated above and pass appropriate orders. This judgment is pronounced at 11.45 a.m. this day. Interlocutory Application No.438 of 2010 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv