IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 RFA.No. 227 of 2008() -------------------------- OS.416/2002 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/DEFENDANT ----------------------------- MOTHIAN DASAN, AJU BHAVAN, VIZHINJAM POST, THIRUVANANTHAPURAM BY ADVS. SRI.K.K.MOHAMED RAVUF SRI.K.PAUL KURIAKOSE RESPONDENT(S)/RESPONDENT/PLAINTIFF --------------------------------------------------- DASAMMA JAMES, STEPHEN HOUSE KOTTAPURAM, VIZHINJAM, NEYYATTINKARA R1 BY ADVS. SRI.P.S.RAMESH KUMAR SMT.ANNAMMA ABRAHAM THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ RFA No.227 of 2008-E ------------------------------------------------------------------------ Dated 3rd December 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal is by the defendant in a suit for money. The plaint claim is that on 19.12.1996, the plaintiff deposited an amount of Rs.2 lakhs with the defendant and that it has not been returned. No other term of the transaction is pleaded except to say that there was an agreement to pay interest, a passbook was issued and it was agreed that the amount would be repaid. The defendant denied the transaction and contended that he does not run any financial institution in the name and style of which Ext.A1 passbook is shown to be issued. Ext.A1 is a passbook issued in the name of one “Ajju Finance”. It does not disclose the identity of any person either as proprietary, a firm or a company, which runs that establishment. It contains no authentication. There is only an initial in the passbook which relates to the deposit of Rs.2 lakhs. The plaintiff sent a suit notice. That was returned unserved. The oral evidence of the plaintiff as PW1 and that of the defendant as DW1 were considered by the court below and it was held that the defendant was the one, who RFA 227/08 2 received the amount of Rs.2 lakhs. Such identity is established by saying that the defendant's son is named Aju and his other children have also names, which are similar and identical to that name. This is how the evidence has been appreciated by the court below. 2. We looked into the question whether there is any corroborating material in the form of legal evidence. There is none. Now, we will consider the attendant circumstances and available inferences, even on the basis of legally permissible presumptions. The common course of human conduct does not inspire confidence in us to hold that a person, who had entrusted two lakhs of rupees on 19.12.1996 to another, allegedly on an agreement to pay interest @ 12%, has no material to show either of having received any interest or of having made any demand for such interest until the passage of nearly 5 years from 19.12.1996, when the suit notice was drafted and issued in March 2001 and the suit was laid in August 2001. We do not find any circumstance, which would tilt the probabilities of the case in favour of the plaintiff. In fact, the totality of the facts and circumstances of the case improbabilises the plaintiff's version as against the defendant and at any rate, does not overcome the total denial made by the defendant as regards the plaint allegations. RFA 227/08 3 3. For the aforesaid reasons, we are unable to sustain the impugned decree. We are, however, told that the parties, going by the evidence, appear to be relatives. We, therefore, desist from making any order of costs in favour of the appellant in this appeal. In the result, this appeal is allowed and the impugned decree is set aside. As a consequence, the suit is dismissed. The parties are directed to suffer their respective costs. At the request of the learned counsel for the plaintiff/respondent, we clarify that this judgment would not stand in the way of any complaint that the plaintiff may make in accordance with law in relation to the establishment which has issued Ext.A1 passbook. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta RFA 227/08 4 RFA 227/08 5