IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 AS.No. 483 of 1998(A) -------------------------------- OS.202/1994 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANTS NOS. 1 TO 3 --------------------------------------------------------------- 1. SALEEM, ALIAS ABBASALI P.M., AGED 29 YEARS, S/O. MUHAMMEDALI, ORAMPALLATH, ATHIKKAL MANKARA AMSOM, AND DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. MUHAMMEDALI, AGED 65 YEARS, S/O. SULAIMAN, ORAMPALLATH, ATHIKKAL MANKARA, AMSOM AND DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 3. BEEVATHUMMA, AGED 56, W/O. MUHAMMEDALI, ORAMPALLATH, ATHIKKAL MANKARA AMSOM AND DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.A.K.SRINIVASAN SRI.N.S.MOHAMMED USMAN SRI.A.S.BENOY RESPONDENT(S): PLAINTIFF ------------------------------------------- N.K.ANU, AGED 27 YEARS, S/O. KASHINATHAN, RESIDING AT ANURANGA NIVAS, KIOZHAKKUMPURATH KIZHAKKUMPURAM AMSOM AND DEOSM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SABU S.KALLARAMOOLA SRI.P.PRAVEEN FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3922/1998 IN AS. NO.483/1998 DISMISSED 16/08/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.483 OF 1998 ............................................. Dated this the 16th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Palakkad in O.S.No.202/1994. The suit is one for realisation of money and the court has granted a decree in favour of the plaintiff from the defendants and their assets. It is against that decision, the defendants have come up in appeal. 2. First appellant is the son and appellants 2 and 3 are the father and mother. During the pendency of the appeal, I am informed that the parents are dead and since the first defendant is there already in the party array, there is substantial representation. It is the case of the plaintiff that the first defendant had promised to obtain a visa for him and for the said purpose, the plaintiff has paid Rs.27,000/= to him. Defendants 2 and 3 had undertaken to pay back the amount, if it is not paid back by the first defendant. Thereafter the plaintiff did not get visa and the defendants had promised to pay the amount. : 2 : A.S.NO.483 OF 1998 3. On the other hand, the defendants would contend that none of them had received any amount for the purpose of getting visa and the agreement alleged to be executed is as a result of fraud and threat and therefore, it has not the backing of law. So far as the alleged agreement is concerned, unfortunately the lower court did not mark it on the ground that essential formalities in law has not been complied with. So it is an unmarked document. Nothing can be done with an unmarked document which is exhibited before the court. We have to rely upon the evidence submitted by the parties. The plaintiff has deposed before the court about his entrustment of Rs.27,000/= to the first defendant and failure to obtain visa and also subsequent agreement entered into between the parties. The defendants would contend that the first defendant never received any amount and there was no promise by defendants 2 and 3. It is also contended that the alleged agreement was as a result of threat. Since the agreement is not marked and since the plaintiff wants to rely on that agreement, it may not be possible for this Court also to rely on that agreement or permit oral evidence to be looked into : 3 : A.S.NO.483 OF 1998 for the purpose of proving of terms of the agreement. So, it is quite unbelievable to start with defendants 2 and 3 would undertake even at the time of advancement of the amount that they will discharge the amount if the first defendant does not pay. I am not inclined to accept that agreement but the fact that the first defendant had obtained money appears to be probable and acceptable. The first defendant was associated with one Usman who was dealing with visa. According to him, the first defendant married the daughter of Usman without his consent and there has been enmity between them. But the enmical mother-in-law is supported by the first respondent by being a witness in a case against her. So it can be seen that what is stated by the first defendant is not truthful. Not only that the alleged transaction in the case was on 29.12.1993 whereas the marriage which resulted in enmity between Usman and the first defendant was in January, 1994. So the transaction had taken place even prior to the marriage. The story developed appears to be quite improbable. Sothe evidence of PW1 inspires confidence in me as well regarding the transaction. The first defendant was duty bound either to : 4 : A.S.NO.483 OF 1998 get him a visa or at least to return the amount which he had received. Since he has not done it, the plaintiff is entitled to the decree as prayed for. So far as it relates to the agreement between defendants 2 and 3 with the plaintiff and as the document itself is not accepted, I cannot grant any decree in their favour. Therefore, I confirm the finding of the trial court with respect to the decree passed against the first defendant and set aside the decree passed against defendants 2 and 3. 4. In the result a revised decree is passed as follows: The plaintiff is given a decree for realisation of Rs.27,000/= with 12% interest on the said sum from 5.4.1994 till the date of decree and thereafter at the rate of 6% from the first defendant personally and from his assets. The plaintiff is also entitled to get his cost in the suit from the first defendant. In the appeal, all are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.483 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.483 OF1998 ............................................. 16th day of August, 2010. J U D G M E N T