IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 CRP.No. 290 of 2003() --------------------- AS.93/1998 of SUB COURT, KASARAGOD OS.342/1997 of MUNSIFF COURT, KASARAGOD .................... REVN. PETITIONER(S): RESPONDENT/DEFENDANT ------------------------------------------ CHANIYAPPA MOOLYA, S/O. KORAGA ALIAS KORAGU MOOLYA, AGRICULTURIST, MANILA HOUSE, MANILA VILLAGE, KARNATAKA STATE, P.O. MURUVA. BY ADV. SRI.K.SHRIHARI RAO RESPONDENT(S): PETITIONER/PLAINTIFF ----------------------------------- RAGHAVAN S/O. KANNA PATALI, AGRICULTURIS, RESIDING AT SONKALA IN MANGALPADY VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.MANGALPADY. ADV. SRI.V.V.ASOKAN FOR R1 SMT.S.AMINA FOR R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 290/03 ORDER ON CMP NO.1991/03 IN CMP NO.752/2003 IN CRP NO.290/2003 DISMISSED 26.2.2009 SD/- K.T.SANKARAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.290 of 2003 --------------------------------------------- Dated this the 26th day of February, 2009 ORDER The defendant in O.S.No.342/1997 on the file of the court of the Munsiff of Kasaragod is the Revision Petitioner. The suit was filed by the respondent for realisation of a sum of Rs.5,000/- with interest. The trial court dismissed the suit. On appeal by the plaintiff, the lower appellate court, reversed the decree of the trial court and decreed the suit. 2. The case of the plaintiff is that the defendant borrowed a sum of Rs.5,000/- on 3.3.1997 from the plaintiff. The defendant undertook to repay the amount on or before 4.7.1997. Evidencing the transaction, the defendant issued Ext.A1 letter to the plaintiff. Since the defendant did not repay the amount as agreed upon, Ext.A2 lawyer notice was issued which was not served on the defendant and it was returned unserved. Later, the plaintiff caused to send another notice dated 28.7.1997 to which the defendant issued Ext.A3 reply. In the reply notice, the defendant disputed the transaction of loan. The suit was filed for realisation of the amount with interest at 10% per annum. CRP No.290/2003 2 3. The defendant contended that the trial court had no territorial jurisdiction to try the suit. He also contended that he did not borrow Rs.5,000/- from the plaintiff. The issue of Ext.A1 letter was also denied by him. He contended that Ext.A1 is a concocted document and it is not admissible in evidence. The defendant contended that the plaintiff is not entitled to any relief. He also raised a contention that the rate of interest is excessive. 4. The trial court held that it has jurisdiction to try the suit. On the merits, the trial court held that the plaintiff has proved the transaction. The plaintiff was examined as PW1 and one witness was examined a PW2. The trial court held that PW2 admitted in cross examination that he was not present at the time of lending money. On that finding, the trial court concluded that there is only the interested testimony of the plaintiff available in the case. The trial court also held that though Ext.A1 not admissible as a promissory note, as not properly stamped, the plaintiff was entitled to institute the suit on original cause of action. 5. The appellate court held that PW2 has stated in evidence that the defendant borrowed Rs.5,000/- from the plaintiff. It was held that the trial court misread the evidence of PW2. There CRP No.290/2003 3 was no admission by him that he did not witness the transaction. He only stated that he was not asked by the plaintiff to appear as a witness in Ext.A1. The appellate court on appreciation of the oral evidence held that the plaintiff has proved the transaction. The appellate court also took note of the evidence of the defendant who was examined as DW1. In the written statement, the case of the defendant was that the plaintiff is a total stranger to him. At the time of cross examination of DW1, it was admitted that this statement in the written statement is not true. It has come out in evidence that the plaintiff had purchased an item of immovable property from the defendant before the transaction alleged in the plaint. On a consideration of the evidence of DW1, the appellate court held that his evidence cannot be believed. As regards Ext.A1, the appellate court held that the suit on original transaction is maintainable. The court below also compared the thump impression of the defendant in Ext.A1 and Ext.A4 acknowledgment card. However, no definite finding was arrived in this regard. It is not necessary to refer to that aspect of the case. Since the court below has found, on appreciation of the oral evidence, that the plaintiff has proved that the defendant borrowed Rs.5,000/- from the plaintiff, there is no ground to take a different view than the CRP No.290/2003 4 view taken by the lower appellate court. Since the findings are on fact, I do not think it is proper to interfere with the findings, in exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. 6. The court below has granted interest at the rate of 10% per annum from the date of suit till realisation. I think, the interest awarded is excessive. I hold that from the date of decree, the plaintiff is entitled to get interest only at 6% per annum. To that extent, the decree passed by the court below is liable to be modified. In the result, the Civil Revision Petition is allowed in part modifying the decree for interest from the date of decree till realisation. The plaintiff will be entitled to get interest only at the rate of 6% per annum from the date of decree to the date of realisation. In all other aspects, the decree passed by the court below is confirmed. K.T.SANKARAN, JUDGE csl