IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 AS.No. 403 of 1999(A) --------------------- OS.1270/1991 of SUB COURT,THRISSUR .................... APPELLANT(DEFENDANT): -------------- PARANGODAN, S/O. MACHANGALATH VELU, KAVANAM CHITTUR DESOM, CHOVANNUR VILLAGE, THALAPPILLY TALUK. BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARI SHARMA SRI.T.P.ELDHOSE RESPONDENT(PLAINTIFF): --------------- K.M. BAVA, S/O. KUNDULLY VEETTIL MOSSA, OTTAPILAYIL, KORATTIKKARA DESOM, KADAVALLUR VILLAGE, TALAPPILLY TALUK. ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/01/2009 ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.No. 403/1999 ORDER ON C.M.P.NO. 3205/99 IN A.S.NO. 403/1999 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 01.01.2009 //TRUE COPY// P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- A.S.No. 403 OF 1999 & CROSS OBJECTION IN A.S. 403 OF 1999 ----------------------------------------------- Dated this the 1st day of January, 2009 JUDGMENT This appeal is preferred against the judgment and decree of the Subordinate Judge, Thrissur in O.S. 1270/91. The suit is one for realisation of money alleged to be due under an agreement and the trial court has decreed the suit for Rs. 17,500/- with 12% interest on the said sum from 10.6.1990 till realisation with proportionate cost from the defendant. Aggrieved by that decision the defendant has come up in appeal and the plaintiff has filed a cross objection challenging the denial of the entire plaint claim. 2. To understand the case, brief facts are to be stated. It is the case of the plaintiff that the defendant agreed to supply 35 Thulam of dried arecanut and had borrowed a sum of Rs. 17,500/- as per Ext. A1 agreement dated 10.6.1989. A perusal of the agreement would reveal that the amount has been handed over with the said stipulation and in case of default of supply the value on the date of breach has to be given. It is scribed by PW1 Kesavankutty that it contains the signature of the plaintiff as well as A.S.No. 403/99 & CROSS OBJECTION IN A.S. 403/99 -2- the defendant. The other witness to Ext. A1 is one Surendran. On the other hand the defendant totally denies the transaction and according to him he had purchased some gold ornaments from one C.L. Varghese for his daughter's marriage and at that time he had given a blank signed paper as well as his documents of title and thereafter had paid Rs. 30,000/- to C.L. Varghese. According to him, Mr. Varghese did not give him any receipt and subsequently has concocted a document and the suit is initiated in this form. So in other words, there is a total denial of the execution of the agreement. 3. In a civil case it is true that the burden is squarely on the plaintiff to prove the execution of the document. When matters are analysed, it is the preponderance of probabilities that may have to be weighed in accepting the case of the parties. The plaintiff has not been examined in this case and the explanation tendered is that he is working abroad. PW1 is the scribe as well as one of the attesting witness. He had deposed before the court that the defendant is personally known to him where as the plaintiff is not known to him personally and that they came together to his office and that the document was executed and both of them had affixed A.S.No. 403/99 & CROSS OBJECTION IN A.S. 403/99 -3- their signature and in his presence an amount of Rs. 17,500/- was handed over to the defendant in this case. PW2 is an Ex-service man who is not a signatory to the document. He would depose that it was the plaintiff who helped his son to get a visa and he was present when the document was signed by the plaintiff and the defendant. PWs. 1 and 2 has been squarely cross examined and nothing has been brought out in this case to discredit their version and one cannot find that they have any axe to grind against the defendant and tender false evidence before the court. So the mere non examination of the plaintiff especially in the backdrop of his non availability in the place cannot be said to be fatal if the evidence of PWs. 1 and 2 are acceptable. 4. The learned counsel for the appellant strongly contends before me that the document Ext. A1 stamp paper has been purchased in the year 1984 i.e on 8.11.1984 and the document is executed in the year 1989 and that itself will create a suspicion regarding the genuineness of the same. The learned counsel would contend before me that his daughter's marriage was in the year 1984 and it was at that time he approached C.L. Varghese for the purchase of gold ornaments and as he was not having any money, A.S.No. 403/99 & CROSS OBJECTION IN A.S. 403/99 -4- he had pledged the documents which covered an extent of 89 ½ cents of land and a stamp paper signed without any writing. One has to find out whether there is any evidence to connect this C.L. Varghese with the plaintiff. Except for the mere ipsi dixit of the defendant there is nothing available to connect the plaintiff with the said Varghese. Similarly if the defence version that he had paid Rs. 30,000/- to C.L.Varghese and if C.L. Varghese had not returned back the documents or the alleged stamp paper certainly as a prudent man, the defendant would not have kept quite. Therefore the defence set up by the defendant appears to be quite artificial and not convincing where as the independent evidence of PWs. 1 and 2 inspires confidence and attaches credibility to the case of the plaintiff. The court below had an opportunity to see the demeanour of the witness and it had appreciated and accepted the version of PWs. 1 and 2. From the reading of the deposition of PWs. 1 and 2 as well as DW1 and the circumstances, I too have no reason to hold that the trial court has not erred in accepting their evidence. Therefore when it is accepted the execution of the document is proved, the passing of consideration is established and as there is no case regarding any discharge by the defendant to the plaintiff it A.S.No. 403/99 & CROSS OBJECTION IN A.S. 403/99 -5- remains proved that the plaintiff is entitled to the amount as stated in the documents. 5. The next question is regarding the contention in the cross objection whether the plaintiff is entitled to get an amount of Rs. 35,000/- as claimed in the plaint. There is a stipulation in Ext. A1 agreement that when there is a breach of supply of arecanut within the stipulated time, the amount has to be returned back at the price of the arecanut on that date. Unfortunately no materials are placed by the plaintiff here to establish that factor. Really there is no evidence at all regarding the price of the arecanut in the year 1991 or 1990. Therefore in the absence of any evidence one cannot accept contention of the plaintiff that he is entitled to an amount of Rs. 35,000/-. 6. So far as the interest is concerned, the agreement is for supply of arecanut and one cannot say that it is an out and out commercial transaction which will draw the exception under Section 34 of the Civil Procedure Code so as to grant any higher rate of interest than what is stipulated under Section 34. But considering the nature of the transaction and the borrowal of the amount I award 12% interest as ordered by the court below from 10.6.90 till A.S.No. 403/99 & CROSS OBJECTION IN A.S. 403/99 -6- the date of the decree i.e. till 6.2.99 and thereafter at the rate of 6% from the date of decree till realisation with proportionate cost. The cross objection does not merit consideration and therefore it is rejected. In the result, the appeal is disposed of by altering the rate of interest to 6% from the date of decree till realisation and the cross objection is rejected or in other words the plaintiff is given a decree for realisation of Rs. 17,500/- with 12% interest on the said sum from 10.6.1990 till 6.2.1999 and at the rate of 6% on Rs. 17,500/- from 7.2.99 till realisation from the defendant with proportionate cost. The parties are directed to bear their respective cost in their appeal. M.N. KRISHNAN,JUDGE vkm