IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 AS.No. 265 of 2001(E) -------------------------------- OS.241/1990 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): ADDL. PLAINTIFFS 2 TO 6 ---------------------- 1. BABUMATHAI, SON OF LATE MATHAI, ACHOTH THEKKENADA, VAIKOM. 2. SUSY MATHAI, DO. DO. 3. JANCY NOYAL, DO. DO. 4. JOLLY MATHAI, DO. DO. 5. MARY MATHAI DO. DO. BY ADV. SRI.P.R.VENKETESH SMT.R.BINDU RESPONDENT(S): DEFENDANTS ------------------------ 1. ALEYKUTTY, W/O. P.V.GEORGE, RESIDING AT PYNUMKAL THEKKENADA P.O. VAIKOM. 2. P.V.GEORGE, SON OF VARKEY RESIDING AT DO. DO. R1 & R2 BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE R1 & R2 BY ADV. SRI.P.GOPAL, SRI.GOVINDKUMAR MENON. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1877/2003 IN AS. 265/2001 DISMISSED 21/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.265 OF 2001 ............................................. Dated this the 21st day of May, 2010. J U D G M E N T This is an appeal preferred against the revised judgment and decree of the Subordinate Judge, Kottayam in O.S.No.241/1992. The brief facts are as follows: 2. It is the case of the plaintiff that the defendants approached him for a loan and that he has handed over Rs.16,000/= on 4.7.1989, Rs.10,000/= on 10.7.1989 and Rs.20,000/= on 1.9.1989 and towards the same the defendants had handed over their title deed of the property with other documents and in spite of repeated demands did not pay back the amount, and so the suit is instituted. On the other hand, the defendants would contend that they had not borrowed any amount from the plaintiff but as the plaintiff was anxious to purchase the property, he was handed over the document for scrutiny. But he did not give it back. The defendants' case is that no amount was borrowed or no equitable mortgage was created but the document was handed over for the purpose of perusal to A.S.NO.265 OF 2001 : 2 : purchase the property. Originally the suit was decreed. Against that judgment, the defendants moved an appeal, A.S.No.341/1992 and a learned Judge of this Court by the judgment dated 13.10.2000 set aside the decree and remanded the case for fresh disposal in accordance with law and in the light of the above observations, the parties would be at liberty to supplement their pleadings and adduce further evidence. So, this Court was not satisfied with the evidence available on record to render a finding in favour of the plaintiff. I would also refer to the discussion made by the learned Judge in the above judgment. The learned Judge had attempted to analyse the evidence witness by witness. The court first analysed the evidence of PWs 2 and 3. The case of the plaintiff was that the defendants had sought a loan for Rs.50,000/= and they took the title deeds to him. According to him, the title deeds were handed over on 4.7.1989 when the first instalment of Rs.16,000/= was paid. It has to be remembered that a land having an extent of 56 cents is said to be equitably mortgaged and when there was sufficient money in the savings bank A.S.NO.265 OF 2001 : 3 : account of the plaintiff and as the defendants had approached the plaintiff with the intention to get an amount of Rs.50,000/=, under ordinary circumstances, disbursal of the amount in instalments by the plaintiff is too remote a chance to believe the story of the plaintiff. It has to be remembered that, according to t he plaintiff, he wanted a person known to both for the purpose of disbursing the loan. But the averments would reveal that the plaintiff and the defendants were known to each other even before the alleged advancement of loan. 3. PW3 is a person called Vijayan who is conducting a shop at Vaikom. He is the person who according to the plaintiff had introduced the defendants to the plaintiff. He had deposed before the court that he had met the second defendant but he had no acquaintance with the first defendant at all. In the plaint it is specifically averred that he had no reason to suspect the truth of the representations made by the defendants as they are known people. So the plaintiff to start with and while presenting the plaint did not have any case regarding the need for an introduction A.S.NO.265 OF 2001 : 4 : of the defendants by a person because he himself felt that the defendants were truthful persons and their representations were correct. So as rightly observed by this Court, induction of PW3 as a witness does not appear to be convincing and it is only an attempt to create some evidence in the case. PW2 is an employee of a sawmill. It is true that interestedness of a person cannot be classified as a sole ground to reject the evidence of that person. What the law expects is intrinsic reliability and inherent probability of the version given by the witnesses. It has to be remembered that it is not a one time transaction. Even according to the plaintiff, the defendants came first on 2.7.1989, then again on 4.7.1989 and another two occasions till September, 1989 and the amount of Rs.46,000/= was paid only in three instalments. As rightly observed by this Court, it is too much to believe that an employee in a sawmill could have been aware of what transpires between the parties on each occasion. The learned counsel for the appellants submits before me that the very fact of the custody of the title deeds as well as A.S.NO.265 OF 2001 : 5 : other documents in the possession of the plaintiff would indicate that there was a loan transaction for which mortgage has been created. 4. If a person wants a security for the transaction and was very anxious about the same, I do not feel that any such person would advance loan even without getting a document evidencing the loan transaction. There is no difficulty for the plaintiff at any point of time to get a document executed regarding the loan transaction. However as observed by the learned Judge in the order of remand, it can be seen that encumbarence certificate etc., are much earlier to the period and for an equitable mortgage to be created the creditor would o insist for an up to date certificate so as to know whether the property to be mortgaged is otherwise encumbered or not. After the remand the defendants have chosen to examine the witnesses and had deposed about the intended agreement or intention to have sale of the property. Therefore the things remain as it were so far as the plaintiff is concerned even after the remand. He did not supplement any A.S.NO.265 OF 2001 : 6 : pleadings. He did not adduce any evidence and as rightly held by this Court the evidence originally tendered was not satisfactory to grant a decree in his favour. Therefore from the materials available it has to be held that the court below has not erred in dismissing the suit. Therefore the appeal fails and the same is dismissed but under the circumstances without any order as to costs. Since no amount is due from the defendants to the plaintiff, if the plaintiff had withdrawn any amount towards decree debt, defendants are entitled to get reimbursement of the same and in case of failure, they can realise that amount by moving an application in the suit itself for the same. M.N. KRISHNAN, JUDGE. cl A.S.NO.265 OF 2001 : 7 : M.N. KRISHNAN, J. .................................... A.S.NO.265 OF 2001 ..................................... 21st day of May, 2010. J U D G M E N T