IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 AS.No. 738 of 2000(E) ------------------------------ OS.768/1995 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): DEFENDANT ------------------------------------------ K.I.VARGHESE, KOLLAKOMBIL, VADAVATHOOR KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): PLAINTIFF ----------------------------------------- K.J.THOMAS, S/O. CHUMMAR, KYTHAPPADAM, AYMANAM KARA, PULIKUTTYSSERY P.O., AYMANAM VILLAGE, KOTTAYAM TALUK. ADV. SRI.JOHN RAMESH K.I.JOHN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.6740/2000 IN AS. 738/2000 DISMISSED 28/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.S. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 738 OF 2000 = = = = = = = = == = DATED THIS, THE 28TH DAY OF JULY, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Additional Subordinate Judge, Kottayam, in O.S. 768 of 1995. 2. The suit is one for realisation of the amount due as hire charges for renting out a motor, pump and its accessories. Rs. 15001/- is claimed for the period 1993-94 and Rs. 4,250/- for the subsequent period with interest. On the other hand, the defendant would contend that he is liable to pay the amount of Rs. 4,250/-; but so far as Rs. 15,001/- is concerned, it is his contention that he had already paid the amount and therefore, he is not liable to pay the same. The trial court, on appreciation of the materials, granted a decree for both the amounts with costs. It is against that, the defendant has come up in appeal. 3. Learned counsel for the appellant would bring to my notice the following circumstances to show that the plaintiff is not speaking the truth. According to him, PW.1 has admitted in evidence that in Ext.A1 agreement, he had obtained the signature when it was half written. The second point raised is that when the amount is due for the first transaction, A.S. 738/2000 2 ordinarily, no prudent man will again give the motor for hire which also probablise the plea of discharge. Thirdly, it is contended that after receiving the amount from Puncha Special Officer in the presence of DW.2, the amount has been paid and therefore, there is a full plea of discharge with respect to Rs. 15,001/-. Learned counsel appearing for both sides had carefully taken me through the pleadings as well as the evidence available in the case. Really, the evidence with respect to Rs. 4,250/- due need not be looked into very much for the reason that it is an amount which the defendant admits that he is liable to pay. So, the only point is regarding Rs. 15,001/-. According to the defendant, this amount was paid during the period wen he obtained the money from the Puncha Office. DW.2 also speaks about the fact that it was in between the 10th of August and 30th of August that he had witnessed the defendant handing over the amount to the plaintiff. This is totally denied by the plaintiff. But I find that in the written statement, in Para 5, there is a specific contention for the defendant that he had not only returned the motor on 25.5.1994, but on the same day, had given the amount of Rs. 15,001/- with interest. Therefore, the pleaded case is a plea of discharge on 25.5.1994. But in his evidence, he has stated that it was between August 20th and 30th. Therefore, the plea of discharge A.S. 738/2000 3 itself is inconsistent and therefore, it cannot be believed. Further, nothing is produced before the Court to show when did the defendant receive the amount from the Puncha Special Officer. The mere oral vibration of DW.1 and DW.2 in the light of the totally inconsistent development at the stage of evidence tends me to hold that plea of discharge is not properly proved and therefore, I hold that the defendant is liable to pay Rs. 15,001/- as well as Rs. 4,250/-. The motor was only rented out for the purpose of dewatering that is an agricultural purpose. But it was given for the purpose of making profit. Taking into consideration these aspects together, I feel that an amount of Rs. 15,001/- with 9% interest till the date of suit and thereafter, the decree interest at the rate of 6% on the sum of Rs. 15,001/- be calculated and so also, an amount of Rs. 4,250/- with 9% interest from 3.12.1994 till the date of decree and at the rate of 6% from the date of decree till realisation has to be paid by the defendant to the plaintiff. In the result, a revised decree is passed as follows: The plaintiff is entitled to a decree for realisation of Rs. 19,251/- with 9% interest on the sum of Rs. 15,001/- from 18.11.1993 till the date of the decree passed by the trial court and at the rate of 6% from the date of decree till realisation and also interest at the rate of 9% from 3.12.1994 on a sum of Rs. 4,250/- till the date of decree and at the rate of 6% on the very said Rs. A.S. 738/2000 4 4,250/- from th date of decree till realisation from the defendant with proportionate costs. The parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, (JUDGE) KNC/- A.S. 738/2000 5 M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 738 OF 2000 = = = = = = = = == = DATED: 28TH JULY, 2010. J U D G M E N T