IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 AS.No. 505 of 1996() -------------------- OS.822/1993 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT: -------------- K.B.DILEEP KUMAR AGED 30 YEARS KANIYAMPADICKAL HOUSEHO AZAD ROAD, KALOOR KOCHI-682 017 BY ADV. SRI.V.V.SIDHARTHAN,T.SAJI RESPONDENT: --------------- PETER BENEDICT S/O MANUEL MATHUPURATH HOUSE NEAR DON BOSCO VADUTHALA. KOCHI- 682 021 ADV. SRI.K.V.AUGUSTINE SRI.MOHAN I. ABRAHAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 3183 OF 1996 IN A.S. NO. 505 OF 1996 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 17.9.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 505 of 1996 ---------------------------------------- Dated this the 17th day of September, 2009 JUDGMENT The defendant in O.S. No. 822 of 1993 on the file of the 1st Additional Subcourt, Ernakulam is the appellant herein. The suit was filed for realisation of money. The trial court partly decreed the suit with costs allowing the plaintiff to recover a sum of Rs. 60,000/- plus 12% interest from 1.5.1993 to 30.9.1993 and with future interest at the same rate per annum on the principal amount of Rs.60,000/- from the date of suit till realisation. Aggrieved by the judgment and decree, the above appeal is filed by the defendant in the suit. . The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The plaintiff's case is that he advanced a sum of Rs. 35,000/- on 2.11.1992 and Rs.30,000/- on 12.11.1992 to the defendant as loans repayable with interest at the rate of Rs.3 per month for Rs. 100/- It is also submitted that the defendant has paid interest till the end of April 1993, that subsequently no amount was paid by the defendant and therefore the suit was filed for realisation of Rs.65,000/- with interest . 3. The defendant in the written statement denied the liability and prayed for the dismissal of the suit . According to him the suit was filed by A.S. No. 505 of 1996 -2- the defendant with an intention to tarnish this defendant's image and there is no truth in the plaint allegations. According to the defendant he owes only Rs.15,000/- and is ready to furnish sufficient security by way of Bank Guarantee for the said amount. 4. The evidence in this case consists of oral testimonies of PWs1 to 4 DW1,Exts A1 to A4, B1 to B4, X1 and X2. 5. The defendant issued Ext.A1 lawyer notice to the plaintiff stating that the plaintiff took loan of Rs. 10,000/- on 15.10.1992 and Rs. 5,000/- on 6.2.1993 respectively from the plaintiff and handed over two signed blank cheques and signed non-judicial stamp paper worth Rs. 15/- and signed blank papers. In the Ext.A2 reply notice the plaintiff intimated the defendant that the defendant owes Rs. 65,000/- and if it was not repaid, he will be compelled to file a suit for realisation of the said sum. It is contended by the plaintiff before the court that the receiving of Rs. 65,000 was admitted by the defendant and he issued Exts.X1 and X2 cheques. The cheques were encashed by PW3 who is an employee of the defendant. It is not disputed that PW3 was an employee of the defendant -proprietary concern at the time when Exts.X1 and X2 cheques were issued by the plaintiff to the defendant. PW3 testified that the proceeds of Exts.X1 and X2 cheques were given to the defendant and the same fact was intimated to the plaintiff. PW4 is another witness who testified that the defendant availed a loan of Rs. 30,000/- from him with the same rate of interest as given to the defendant by the plaintiff and the said liability was A.S. No. 505 of 1996 -3- discharged by the defendant. Ext.B1 is the notarised photocopy of page 58 of the cash book for the period 1992-93 which shows a sum of Rs. 10,000/- was received as loan from the plaintiff on 15.10.1992 Ext.B2 is the notarised photocopy of the page No.92 of the cash book for 1992-93 which shows that the a sum of Rs. 5,000/- was received as advance from the plaintiff on 6.2.1993. Ext.B3 is the notarised photocopy of the Ledger Folio of 132 relating to the transactions with the defendant and the plaintiff and Ext.B4 is the balance sheet as on 31.3.1993. From the entries in Ext.A4 pass book the trial court found that on 2.11.1992 there are two withdrawals one for Rs. 5,000 and another for Rs. 30,000/- and on 12.11.1992 there is also a withdrawal of Rs. 30,000/-. The trial court on evidence held that the plaintiff has not succeeded in proving the payment of Rs. 5,000/- on 2.11.1992 by summoning the said cheque whereas Ext.X1 and X2 cheques were proved through PWs 2 and 3 for the withdrawal of Rs.60,000/- In the light of the positive proof regarding the withdrawal of Rs. 60,000/- vide Exts.X1 and X2 cheques , the admission of the defendant that he has borrowed only Rs. 15,000/- is not believable. For the said reason the trial court rightly held that the defendant has not succeeded in proving the case set up and partly decreed the suit. 6. The learned counsel for the defendant/ appellant contended that the defendant's evidence were not appreciated by the trial court in the right perspective, and went wrong in believing and accepting the A.S. No. 505 of 1996 -4- evidence tendered by the plaintiff and his witnesses. According to him Exts.B1 to B3 account books and B4 balance sheet has been properly proved by the defendant and are kept in the ordinary course of the business of the defendant and therefore the decree and judgment passed by the trial court is liable to be interfered with by this Court. it is also argued that the trial court failed to note the fact that Ext.X1 cheque amount is only for Rs.30,000/- and X2 cheque is for Rs.30,000/-The counsel also attacked the oral evidence of PW1 to Pw4 and submitted that the trial court ought to have seen that the defendant/appellant has succeeded in proving the facts alleged in the written statement and that in such circumstances the trial court ought not have dismissed the suit. I have examined the oral and documentary evidence adduced by the parties and the respective contentions raised by them. I am also of the view that the view taken by the trial court in the given circumstances, is the only view possible . I do not find any reason to interfere with the considered judgment and decree passed by the trial court. The appeal fails and accordingly dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 505 of 1996 ---------------------------- JUDGMENT 17th September, 2009