IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 SA.No. 70 of 1995(G) -------------------- AS.122/1993 of PRL.S.C.,THALASSERY OS.351/1991 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- CHEVIDAN KRISHNAN, S/O.RAMAN, KOTTAYAM AMSOM DESOM OF TELLICHERRY, KANNUR DISTRICT. BY ADV. SRI.P.V.SURENDRANATH SRI.K.V.SOHAN RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------- K.M.MOHAMMED KUNJU, S/O.USSANKUTTY, ADVOCATE, KANNUR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO.70 OF 1995 ------------------------------------------ Dated 22nd February 2008 J U D G M E N T Plaintiff in O.S.351/1991 on the file of Munsiff court, Kuthuparamba is the appellant. Defendant is the respondent. According to appellant he was working as clerk of respondent, an advocate practicing at Kannur. Respondent was constructing a house and he was finding it difficult to raise funds for the construction. As per the pleadings in the plaint, respondent approached the appellant at his house and requested appellant to give him Rs.15,000/- as loan by borrowing from some others and appellant promised to give the amount within two days and told the respondent to meet him two days thereafter. On 7/4/1988 respondent came to his house. Then appellant paid Rs.10,000/- which was borrowed from one of his friends. When that friend demanded the amount, appellant pledged the ornaments of his wife and repaid it to the friend. Subsequently respondent again approached the appellant to grant a further SA 70/95 2 loan of Rs.1,000/- stating that he could not raise the fund. Appellant paid Rs.1,000/- which he had with him on account of sale of the timber. While returning respondent asked for Rs.100/- more it was also paid on 11/10/1988. According to the appellant, respondent had agreed to repay the amount but did not pay and after repeated request he paid Rs.5,000/- as per a cheque dated 15/1/1990 drawn in his account in State Bank, Kannur and the balance was not paid in spite of sending of Ext.A2 notice. No reply was also sent. Appellant claimed a decree for realisation of the amount with interest. Respondent resisted the suit contending that he did not borrow any amount from the appellant. It was admitted that appellant was working with respondent for some time, but it was not as his clerk, but as errand boy, office boy and domestic servant. It was contended that marriage of the appellant was arranged by the respondent and they were on very cordial terms and when the respondent was in difficult circumstance to complete the construction of his house, wife of the appellant had paid Rs.6,000/- and 5,000/- on two occasions and respondent repaid that amount by cheques. It was contended that a cheque for Rs.5,000/- was SA 70/95 3 issued in the name of the appellant and it was not towards repayment of the loan from the appellant. It was contended that respondent is not liable to pay amount to the appellant and suit is to be dismissed. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 to 4, Exts.A1 to A4, B1 and X1 dismissed the suit holding that appellant did not establish the transaction or the liability of respondent. Appellant challenged judgment before Sub court, Thalassery in A.S.122/1993. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Appeal was admitted formulating following substantial questions of law. 1) Whether perverse appreciation of facts, evidence and circumstances of the case render the judgment perverse. 2) Whether courts below justified in recording a finding inferentially and without any basis exchewing material portions of the evidence. 4. Learned counsel appearing for appellant heard. SA 70/95 4 Though notice was served on respondent, he did not appear. 5. Arguments of learned counsel is that courts below did not properly appreciate the evidence and appreciation of evidence was perverse. It was argued that apart from the appellant who was examined as PW1, PW2 was also examined to prove that respondent had borrowed Rs.10,000/- on 7/4/1988 and Ext.A1 was produced to corroborate the case that appellant repaid the amount to the bank by pledging ornaments of his wife who was examined as DW3, on the side of respondent. Learned counsel also argued that when the case of respondent was that he did not borrow any amount from appellant it is admitted that a cheque for Rs.5,000/- was issued to the appellant and evidence of DW3 falsifies the case of respondent that the cheque for Rs.5,000/- was issued towards payment of the amount borrowed from DW3. It was further argued that evidence of PW1 establish that said payment by cheque was towards the transaction entered into by the respondent with the appellant and that transaction is the one spoken to by PW1 and corroborated by PW2 and as appreciation of evidence was perverse this court has to re-appreciate the evidence and substitute SA 70/95 5 its findings to that of the courts below. 6. Both the trial court and first appellate court on appreciating the evidence found that evidence by courts below adduced on the side of the appellant is insufficient to prove the oral loan obtained by the respondent. Question of re-appreciation of evidence is warranted only if appreciation of evidence by courts below was perverse. Though learned counsel argued that appreciation of evidence by the trial court as well as by the first appellate court was perverse, on going through the evidence of Pws.1 and 2 in the back ground of the case disclosed in Ext.A2 notice and also the plaint, I do not find that appreciation of evidence was perverse. 7. According to the appellant, transaction between the appellant and respondent was oral. In such circumstance, evidence adduced by the appellant to establish the oral loan, is to be appreciated in the light of the pleadings as well as first version of the transaction disclosed in Ext.A2. Ext.A2 lawyer notice was issued prior to the institution of the suit. What was pleaded in Ext.A2 notice was that appellant paid Rs.10,000/- on 7/4/1988 and Rs.1,100/- on 11/10/1988 and SA 70/95 6 he raised Rs.10,000/- by pledging gold ornaments in Kannur Co-operative Bank at Kannapuram which was subsequently redeemed on 2/7/1988 and the latter amount was raised by selling trees. Therefore as per Ext.A2 Rs.10,000/- was paid on 7/4/1988, from the amount the appellant received by pledging gold ornaments of his wife. This is the first version of the oral transaction. When the suit was filed the version given in the plaint is different. As per paragraph 2 of the plaint, respondent approached the appellant at his house and requested to arrange Rs.15,000/- as loan from somebody. Because of the relationship appellant promised to arrange the money. He asked respondent to meet him after two days. As agreed appellant raised the amount from a friend. On 7/4/1988 respondent came to his house and he paid that amount to the respondent. Thereafter friend from whom the appellant borrowed the amount, demanded the money. Appellant pledged the ornaments of his wife raised the money and repaid that amount. So the case as the plaint was that ornaments of his wife was pledged by appellant not for raising money to pay it to respondent but to the friend from whom appellant had borrowed the amount earlier and paid to the respondent. SA 70/95 7 This is a contradictory case than what is stated in Ext.A2. Even though when the disputed transaction is oral, appellant is expected to disclose the whole details including the presence of witness if any who was present at the time of transaction, he has no case either in Ext.A2 or in the plaint that when respondent borrowed or appellant paid the amount any other witness was present. But when he was examined as PW1, the case was projected was different. According to PW1, during 1988 respondent approached him and requested him to raise Rs.15,000/- to be paid to the respondent. Respondent again approached the appellant at his house on 7/4/1988. Then appellant went to the house of Govinda Marar of Retired Sub Inspector, who was residing 10 meter away from his house at that time and borrowed Rs.10,000/- and in his presence the amount was paid asking appellant to repay the amount within one month. Said Govinda Marar was examined as PW2. Arguments of learned counsel is that as PW2 corroborated the evidence of PW1 courts below should have accepted the evidence. If PW2 was present at the time of transaction as deposed by PW1, appellant would have definitely mentioned the name in Ext.A2 or at SA 70/95 8 least in the plaint. Conspicuous absence of such a case in the plaint that any other person much less PW2 was present and witnessed the granting of the loan, the version of Pws.1 and 2 cannot be believed is sufficient to discard the new case. Move over, if we are to believe the evidence of Pws.1 and 2, though appellant had agreed to pay that amount on 7/4/1988 when respondent met him two days back after the respondent reached his house, appellant went to the house of PW2 his neighbour and along with PW2, came to his house where respondent was waiting and paid that amount in the presence of PW2 so that PW2 can witness the transaction. There is no other explanation for the presence of PW2 at that time. If PW1 wanted the presence of a third person so as to witness the incident, he would have got something in writing from the respondent evidencing the appellant. Added to this, even though respondent agreed to repay the amount within one month, he failed to pay and appellant had to pledge the ornaments to his wife and repay the amount to PW2. Still appellant paid Rs.1,100/- again on 11/10/1988. It is not at all natural. When appreciating the entire evidence in the light of the contrary case in the pleading and evidence, SA 70/95 9 I do not find appreciation of evidence by the courts below was in the proper perspective. In any event, it cannot be said that appreciation of evidence was perverse. Even if evidence is to be appreciated afresh, ignoring the findings of the courts below, on the evidence of Pws.1 and 2, with the contradictory case pleaded in Ext.A2 notice and plaint, it is not possible to believe the evidence of Pws.1 and 2. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 70/95 10 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.70 OF 1995 22nd February 2008 ============================