IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 RSA.No. 1031 of 2008() ---------------------- AS.27/2005 of PRL.SUB COURT, KOZHIKODE OS.575/2002 of PRL.MUNSIFF'S COURT-I, KOZHIKODE. .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- VELAYUDHAN, S/O.APPU, AGED 64 YEARS, CHALIKKARA HOUSE, MAKKADA AMSOM DESOM, KAKKODI, KOZHIKODE. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT/ RESPONDENT/PLAINTIFF ----------------------------------- M/S.R.B.TRADING CORPORATION, REPRESENTED BY MANAGING PARTNER BABY VARKEY, AGED 50 YEARS, S/O.JOSEPH, R.B.TRADING CORPORATION PULAMKANDIYIL, KATCHERI AMSOM DESOM, KOZHIKODE. ADV. SRI.ANTONY MATHEW FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1031 OF 2008 ---------------------------- DATED THIS THE 8th DAY OF JUNE, 2009 JUDGMENT The defendant in O.S.No.575/2002 on the file of the Court of the Principal Munsiff-1, Kozhikode is the appellant herein. The appeal is directed against the judgment and decree in A.S.No.27/2005 of the Principal Sub Court, Kozhikode. The trial court decreed the suit as prayed for and the same was confirmed in appeal. Hence, this second Appeal. 2. The respondent as plaintiff filed the suit alleging that he has sold 1050 sq.ft. of 'Pink Makrana' marble slabs for a total consideration of Rs.65,000/-, that the defendant paid an amount of Rs.20,000/- and Rs.22,000/- on two occasions and an amount of Rs.23,000/- was remain due. In spite of repeated demands, the amount was not paid. Hence, the suit for realisation of the said amount with interest. The defendant admitted the transaction. It is not disputed that the -2- R.S.A.No.1031/2008 appellant/defendant purchased 'Pink Makrana' marble slabs from the plaintiff's firm. It is also not disputed the value of the marbles and labour charges at Rs.65,000/-. Now the dispute is only with respect to the balance amount of Rs.23,000/-, which according to the plaintiff, is the amount due from the defendant. 3. In the written statement filed by the defendant it was contended that he has paid the entire amount of Rs.65,000/- and nothing remains as balance. In the box the defendant testified that he paid an amount of Rs.23,000/- as labour charges. The court below observed that in the written statement the defendant has no case of payment of labour charges. But only in evidence he has shifted his version and contended that he has paid the balance of Rs.23,000/- towards labour charges. There is no receipt for the balance payment of Rs.23,000/-. Exts.A1(a) and A1(b) are the receipts for the payment of Rs.42,000/-. The court below noticed that there is no receipt except the interested testimony of the defendant and that there is no corroborating -3- R.S.A.No.1031/2008 evidence to show that the balance of Rs.23,000/- is paid. The trial court also rightly held that once the payment is denied by the plaintiff the burden to prove the discharge is upon the defendant and that the defendant has not discharged that burden by showing that the amount is paid. In the circumstances, the court below passed a decree for realisation of Rs.23,000/- with interest at the rate of 6% per annum. 4. The Lower Appellate Court also considered the contentions of the appellant. The Lower Appellate Court discussed the points raised in appeal and came to the same conclusion of the trial court. The Lower Appellate Court, after appreciating the evidence on record, held that the appellant is liable to pay Rs.23,000/-. The Appellate Court also disbelieved the version of the defendant that he has paid the balance of Rs.23,000/-. Finding that no evidence has been adduced other than the oral interested testimony by the defendant and that even a single scrap of paper is not produced in order to show the -4- R.S.A.No.1031/2008 payment made, the Lower Appellate Court also dismissed the appeal. 5. Heard the learned counsel for the appellant. I find that the findings arrived at by the trial court and confirmed by the Appellate Court are purely based on facts. The evidence adduced by both sides if appreciated in the proper perspective, this Court cannot arrive at any finding other than the findings arrived at by the courts below. In the circumstances, there is no merit in the appeal and accordingly, it is dismissed. HARUN-UL-RASHID, Judge. kcv.