IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 RSA.No.123 of 2008 (F) --------------------------- AS.71/2005 of SUB COURT, QUILANDY OS.22/2005 of MUNSIFF COURT, QUILANDY .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------ SOUTH MALABAR GRAMIN BANK, KEEZHARIYOOR BRANCH, REPRESENTED BY ITS BRANCH MANAGER, KEEZHARIYOOR AMSOM, KOYILANDY TALUK. BY ADV. SRI.P.GOPINATH MENON RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------- AYADATH MEETHAL KUNHIKELU, S/O.CHANDU, AGE NOT KNOWN, AGRICULTURIST, NADUVATHOOR P.O., KEEZHARIYOOR AMSOM, NADUVATHOOR DESOM, KOYILANDY TALUK. BY ADV. SRI.PHILIP ANTONY CHACKO SRI. M.R.MOUNEESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.123 of 2008 ------------------------------------------------ Dated this the 29th day of July, 2008 JUDGMENT This is appeal filed by the South Malabar Gramin Bank against concurrent decree passed by the courts below against them dismissing their suit for recovery of money from the respondent. 2. The appellant instituted O.S.22/05 before the Munsiff's Court, Koyilandy inter alia on the allegation that the defendant and the plaintiff/Bank entered into an agreement on 21/12/99 whereby the respondent/defendant is permitted to avail a loan of Rs.25,000/- for a period of one year with interest at the rate of 14% to be compounded half yearly and the entire amount of Rs.25,000/- was transferred to the account of the defendant and subsequently, the interest rate was reduced to 8.5% with effect from 01/06/04; R. S. A. No.123 of 2008 -2- that an amount of Rs.173/- which was in the account of the defendant was credited to the loan account; that the defendant did not pay the amount when he was called upon to pay the amount, but he executed an acknowledgment of debt on 07/02/02 and thereby the period of limitation is saved and hence, this suit for a decree for recovery of an amount of Rs.34,795/- due from the respondent/defendant. 3. The defendant resisted the suit contending that he has repaid the entire amount by making payment of Rs.22,000/- on 23/01/01 and a further amount of Rs.6,970/- on 25/01/01 and that no liability is outstanding against him to the Bank. He further contended that the acknowledgment of debt alleged to be executed on 07/02/02 is false. According to the defendant, he is the Chairman of District Debt Relief Forum and has been leading agitation against Banks including the R. S. A. No.123 of 2008 -3- plaintiff and therefore, the plaintiff is on enimical terms with him and the suit is hence, filed on an experimental basis on account of the vengeance towards him. The trial court raised necessary issues for trial on the above pleadings and after trial and considering the evidence adduced at trial which consisted of oral evidence of PWs.1 and 2 and documentary evidence Exts.A1 to A5 and B1 to B4 dismissed the suit. Appeal filed by the plaintiff assailing the said dismissal before the first appellate court as A.S.71/05 was also dismissed with costs. Hence, this R.S.A by the plaintiff. 4. It is contended before me by the learned counsel for the appellant that over and above Rs.25,000/- disbursed to the respondent/defendant on 21/12/99 which has been repaid by him by making payments of Rs.22,000/- on 23/01/01 and of Rs.6,970/- on R. S. A. No.123 of 2008 -4- 25/01/01. He has also availed of a further amount of Rs.25,000/- on 07/02/02 and that the said amount is due from the respondent and that a decree be granted for recovery of that amount. In other words what the counsel for the appellant submits is that a decree be passed for recovery of amounts for recovery of which there was absolutely no claim in the plaint. 5. It is the specific case of the appellant that the respondent had availed a loan of Rs.25,000/- from the plaintiff/Bank as per Ext.A1 agreement executed between the appellant/plaintiff and the respondent/ defendant on 21/12/99; that though the defendant was called upon to pay the amount, he has failed to make repayment; that the defendant also executed a letter of acknowledgment of debt on 07/02/02. But according to the contentions of the defendant R. S. A. No.123 of 2008 -5- he had repaid the entire amount due to the bank and that he had not executed acknowledgment of debt on 07/02/02. The first appellate court has observed in paragraph No.3 of the plaint that plaintiff has clearly averred that it was as per agreement executed between the plaintiff and defendant on 21/12/99 that a sum of Rs.25,000/- was availed by the defendant as loan. The said agreement is Ext.A1 and is dt.21/12/99. There is no averment in the plaint that there was any transaction other than the one mentioned in Ext.A1 between the appellant/plaintiff and respondent/defendant. But in the course of trial, plaintiff set up a case that when they called upon the defendant to make payment of amount the defendant produced Exts.B3 and B4 to establish his contention that he has discharged the entire liability due to the plaintiff/Bank. Exts.B3 and B4 are R. S. A. No.123 of 2008 -6- respectively two receipts issued by the plaintiff/Bank for payment of Rs.22,000/- and Rs.6,970/- as already stated, by payment of which the loan of Rs.25,000/- availed of as loan on 21/12/99 admittedly stood discharged. If at all Ext.A3 acknowledgment is not executed by the defendant, it is not in dispute that the suit will be barred by limitation. It was urged before the first appellate court that in the absence of a contention in the written statement that the suit is barred by limitation, the trial court should not have suo motu framed an issue regarding limitation. The contention was repelled for the reason that it is the duty of the court to see as to whether the suit was within the period prescribed by the law of limitation and the suit filed beyond the period prescribed is liable to be dismissed though limitation may not be set up as a R. S. A. No.123 of 2008 -7- defence or the defendant remains ex parte. 6. PW1/the Bank Manager of the plaintiff deposed in the course of trial that on 07/02/02 the defendant has withdrawn another sum of Rs.25,000/- as per Ext.A2 withdrawal slip and that it was on that day that Ext.A3 acknowledgment of debt was got executed. This as observed by the first appellate court is a new case which was brought out at the time of evidence which is absent in the plaint. The only allegation in the plaint is regarding the transaction on 21/12/99. There is no pleading at all in the plaint that any further loan was availed by the defendant on 07/02/02. Further, Ext.A3 did not make it clear as to what is the debt that is acknowledged. It did not make any reference to Ext.A2. Ext.A2 is a document which was produced on 30/09/05 three days prior to the date of trial. Marking of Ext.A2 was also objected by the defendant. According R. S. A. No.123 of 2008 -8- to the defendant, Ext.A2 is a concocted document. As observed by the lower appellate court, if any amount is withdrawn as per Ext.A2 that would have found a place in Exts.B1 and B2. The counsel for the respondent has placed before me copies of Exts.B1 and B2 dated respectively 31/05/03 and 25/02/03 issued by the appellant/Bank calling upon the defendant to pay Rs.5,100/- and Rs.3,800/- respectively. In both the notices, the defendant is informed that the period of transaction is over on 21/12/99 and he was called upon to renew the loan whereas Ext.A2 which is disputed by the defendant is dt.07/02/02. If at all there was any transaction on 07/02/02 the said date would have been shown in Exts.B1 and B2 wherein the date of transaction was shown as 21/12/99 only. Similarly, in Ext.A4 which is a notice issued through lawyer prior to the filing of R. S. A. No.123 of 2008 -9- the suit on 02/03/04 also only the transaction on 21/12/99 is made mention of and what is called upon to be paid is the amount due to the Bank in the transaction made on 21/12/99. There is no explanation by the plaintiff as to why transaction on 07/02/02 is not made mention of in Ext.A4. As observed by the first appellate court when Exts.B1 and B2 are taken into consideration, the question remains as to why Ext.A3 acknowledgment of debt was to be executed as both Exts.B1 and B2 are subsequent to Ext.A3. It was therefore, rightly being found by the courts below that Ext.A3 is not genuine. If Ext.A3 is not genuine there is no acknowledgment of liability and the suit is barred by limitation and no interference is called for in the concurrent findings of the courts below. Exts.B3 and B4 show that the entire amount of loan availed of by Ext.A1 agreement on 21/12/99 has been discharged. R. S. A. No.123 of 2008 -10- PWs.1 and 2 have no dispute regarding the authenticity of Exts.B3 and B4. Hence, the entire loan amount availed of on 21/12/99 stands repaid with interest. The said repayment is not disclosed in the plaint though that fact was admitted by the plaintiff's witnesses at the time of trial. As rightly observed by the courts below it was producing Ext.A2 withdrawal slip dt.07/02/02 that plaintiff put forward a case that the defendant is liable to pay the amount covered by the said Ext.A2. When the plaintiff is having no case regarding a different transaction on 07/02/02, the appellant/ plaintiff cannot succeed on the plea advanced in the plaint for recovery of any amount as the claim was advanced only on the strength of the amount advanced under Ext.A1 on 21/12/99. A different claim cannot be pressed into service on the pleadings advanced by the R. S. A. No.123 of 2008 -11- appellant/plaintiff in the court below. It has been further observed by the courts below that Ext.A2 relied on by the plaintiff has not been produced along with the plaint nor is it a document made mention of in the plaint and relied on by the plaintiffs. In Ext.A4/lawyer notice which preceded the institution of suit also, there is no mention regarding the transaction, if any, covered by Ext.A2 on 07/02/02. It is also not mentioned in Exts.B1 and B2 which are issued after 07/02/02. Even reading the entire pleadings in the plaint or in the notice preceding the institution of the suit one cannot get any idea of any transaction having taken place on 07/02/02 as is attempted to be pressed into service by production of Ext.A2. It was in the above circumstances that the courts below concurrently found that plaintiff is not entitled to any relief and dismissed the suit R. S. A. No.123 of 2008 -12- accordingly. There is absolutely no merit in this R.S.A and no question of law and much less any substantial question of law does arise for consideration by this Court in the R.S.A. 7. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-