IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 RSA.No. 1103 of 2008() ---------------------- AS.333/2002 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.2449/1997 of PRL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/DEFENDANT -------------------------------------- C.SUNIL,ST.JUDGE ALUMINIUM FABRICATORS TC.12/512, VADAKKATHALAKKAL, MUDAVANA ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.C.C.ABRAHAM SRI.DILEEP P.PILLAI SMT.B.S.SEEMA RESPONDENT(S): ------------------- ROY MATHEW, THUNDATHIL HOUSE' KACHANI PO., PEROORKADA THIRUVANANTHAPURAM. POWER ATTORNEY HOLDER B.JAYAKUMAR, KACHANI, KARAKULAM THIREUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT NO REPRESENTATION FOR THE COUNSEL FOR THE APPELLANT REPEATEDLY. HENCE THIS APPEAL IS DISMISSED FOR NON- PROSECUTION. 5.6.2009 SD/- HARUN-UL-RASHID,JUDGE es ORDER IN I.A. NO.846 OF 2009 IN R.S.A. NO. 374 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 5.6.2009 M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1103 OF 2008 =========================== Dated this the 16th day of February,2011 JUDGMENT Defendant in O.S.No.2449/1997 on the file of Munsiff Court, Thiruvananthapuram is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.53,000/- contending that appellant is a contractor doing Aluminium Fabrication Works on contract basis. On 24.5.1994 he entered into an agreement with the respondent by which he had undertaken to do the Aluminium fabrication works, in the building of the respondent, for a total consideration of Rs.53,000/-. He received an advance of Rs.45,000/- by cash, which he encashed on 26.5.1994. In spite of the undertaking, he did not perform the contract and therefore respondent is entitled to realise the same with R.S.A.1103/2008 2 intent. It was contended that for return of the amount defendant endorsed a cheque for Rs.10,000/- in his favour issued by Poonthura Siraj and for the remaining Rs.35,000/- he issued another cheque dated 1.1.1996 drawn on Central Bank of India and when they were presented, both the cheques were dishonoured. Suit was filed confining relief for th amount covered by the cheque issued by the appellant. 2. Appellant resisted the suit contending that he did not enter into an agreement to perform the Aluminium Fabrication Works and he never received any advance amount by way of cheque or otherwise and hence he is not liable to pay any amount. 3. Learned Munsiff on the evidence of PW1, Dws. 1 and 2 and Exts.A1 to A8 and Ext.B1, granted a decree for Rs.53,600/- with future interest at the rate of 18% per annum till the date of the decree and thereafter at the rate of 6% per annum. Appellant challenged the judgment before District Court, Thiruvananthapuram in A.S.No.333/2002. R.S.A.1103/2008 3 Learned District Judge on reappreciation of evidence confirmed the decree but modified the interest at 12% per annum till the date of the decree and thereafter at the rate of 6%. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that though it is the specific case of the respondent that appellant entered into an agreement to execute Aluminium Fabrication Works, no such agreement was produced and therefore courts below should have non suited the respondent. It was also argued that though respondent contended that a cheque for Rs.10,000/- was issued by Poonthura Siraj and endorsed by the appellant, that cheque was not produced and in such circumstances, on a proper appreciation of evidence, courts below should have accepted the case of the appellant based on the preponderance of probability and therefore the decree is to be set aside. R.S.A.1103/2008 4 6. Respondent has not pleaded in the plaint that there was a written agreement. What was alleged in the plaint is that appellant entered into an agreement on 24.5.1994. When there is no case that there was a written agreement, respondent cannot be non suited as sought for, for non- production of a non-existing agreement. In the suit respondent has restricted the claim in respect of Rs.35,000/- covered by the cheque issued by the appellant alone and did not claim the amount covered by the cheque issued by Poonthura Siraj. Therefore the non production of the cheque issued by Poonthura Siraj is not a ground to interfere with the decree. 7. The question is whether courts below appreciated the evidence in the proper perspective. On going through the judgments of the courts below, it is clear that appreciation of evidence was not perverse. In any event, the view taken by the courts below is definitely a possible view that could be taken on the evidence. That R.S.A.1103/2008 5 finding of fact cannot be interfered in the second appeal. As no substantial question of law is involved , appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.888 /2002 --------------------- JUDGMENT 16th FEBRUARY,2011