IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 AS.No. 688 of 1999(B) ------------------------------ OS.1217/1994 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF: --------------------------------- SUBHASH, S/O.PERUMAL ACHARY, KATHANA VEETTIL, VALLACHIRA DESOM, VALLACHIRA VILLAGE, THRISSUR TALUK. BY ADV. MR.DINESH MATHEW J.MURICKEN RESPONDENT/DEFENDANT: ---------------------------------------- APPU ACHARY, S/O.KUNJAN ACHARY, PUTHENVEETTIL, OORAKAM DESOM, OORAKAM VILLAGE, THRISSUR TALUK. BY ADV. MR.P.V.CHANDRA MOHAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 03/11/2009 DELIVERED THE FOLLOWING: rs. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= A.S. No. 688 of 1999 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3rd day of November, 2009 JUDGMENT Challenge in this appeal by the plaintiff in O.S.No.1217 of 1994 of First Addl. Sub Court,Thrissur is to the judgment and decree of the lower court dismissing the suit for recovery of money allegedly due under an agreement Ext.A1 dated April 19,1993. 2.The case of the appellant/plaintiff, as detailed in the plaint and as testified by him as PW1 before the lower court, was that on April 19, 1993 respondent/defendant borrowed Rs.52,000/- from him and executed agreement Ext.A1 agreeing to repay the amount with interest at the rate of 12% per annum within two months, that on June 19,1993, as requested by the defendant, time was extended till July 5, 1993, which was endorsed by the defendant on the back of Ext.A1 as Ext.A1(a) and that in spite of repeated demands, the defendant did not re-pay the amount. 3. The case of the respondent/defendant of total denial. According to him, the plaintiff is his nephew and that misusing some signed blank papers of the defendant, the plaintiff created Ext.A1. 4. Plaintiff was examined as PW1 and he produced Exts.A1 and A1(a) and defendant was examined as DW1 before the lower court. AS 688/99 2 5. On an appreciation of the evidence, the lower court found that the plaintiff has failed to prove Ext.A1 and dismissed the suit with cost. Plaintiff has now come up in appeal. 6. Heard both the counsel. The only question which arises for consideration is whether the plaintiff has proved the execution of Ext.A1 by the defendant and passing of consideration? 7. The counsel for the appellant argued that in the light of evidence of PW1 the trial court should have decreed the suit. On the other hand counsel for respondent would support the judgment of the lower court. 8. Ext.A1 is an agreement written on Rs.15/- stamp paper. It is seen attested by two witnesses. The scribe is also seen signed therein. As the defendant deny the execution of Ext.A1and Ext.A1(a)the appellant/plaintiff should have examined one of the attesting witnesses or the scribe to prove the due execution of Ext.A1. The passing of consideration was also not proved by the appellant/plaintiff by examining the witnesses. The specific case of the defendant was that plaintiff has no financial capacity to advance Rs.52.000/- Plaintiff as PW1 would say that he had obtained loan from Cherpu Co-operative Bank. But no document is produced by him to prove the same. That apart the loan was allegedly taken on 19-4-1993. But the stamp paper was seen purchased on 16-4-1993 which is not explained by PW1. Therefore, in my view the lower court is perfectly justified in dismissing the suit holding that plaintiff has failed to prove the execution of AS 688/99 3 Exts.A1 and A1(a) and passing of consideration. That being so the appeal has to be dismissed with cost. In the result, the appeal is dismissed with costs. P.Q. BARKATH ALI, JUDGE mn AS 688/99 4 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= A.S. No. 688 of 1999 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 3rd day of November, 2009