IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 AS.No. 306 OF 1995(C) --------------------- OS.61/1991 OF SUB COURT, KASARAGOD APPELLANTS/DEFENDANTS: 1. V.J. JOSE, VELLAKKADA HOUSE, PARAMBA P.O. VIA. PARAOPPA 671 531. 2. VELLAKKADA VARKEY, VELLAKKADA HOUSE, PARAMBA P.O., VIA. PARAPPA 671 531. 3. JOHN VELLAKKADA VELLAKKADA HOUSE, PARAMBA P.O., VIA. PARAPPA 671 531. BY ADV. SRI.K.JAJU BABU RESPONDENTS/PLAINTIFF 1. INDUSTRIAL CREDIT AND DEVELOPMENT SYNDICATE LIMITED, M.G. ROAD, KASARAGOD 670 121. BY ADV. SRI.S.R.DAYANANDA PRABHU THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ = = = = = = = = = = = = = = = = = A.S. 306/1995 = = = = = = = J U D G M E N T 16.6.2008 P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = A.S. NO. 306 OF 1995 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF JUNE, 2008. J U D G M E N T Raman, J. This is an appeal against the judgment and decree passed by the Sub court, Kasaragod, in O.S. 61/1991. Defendants are the appellants. The suit was filed for recovery of of an amount of Rs.1,87,022.14 with future interest at 30% per annum on Rs. 1,16,728/- and for costs. 2. According to the plaintiff, he purchased a motor vehicle. The first defendant was the hirer and defendants 2 and 3 were guarantors and they had executed a hire purchase agreement - Ext.A2 - in his favour in November, 1986. Thereafter, agreeing to pay the hire in 47 instalments, the first defendant made an initial payment of Rs.30,000/-. The monthly instalment was to start from 11.12.1986. Defendants defaulted payment of hire amount and by letter dated 6.12.1988 acknowledged their liability to pay the hire amount. In spite of demand, the amount was not paid and hence the suit was filed. 3. The defendants in their joint written statement contended that they had not executed the agreement, that the motor vehicle never belonged to A.S. 306/1995 :2: the plaintiff and he was never in possession of the same and there was no contract between the plaintiff and the defendants. According to them, the vehicle belonged to one Moosa Ahamad with whom the first defendant exchanged his vehicle and after the exchange the first defendant transferred the registration and the vehicle was assigned number KLS 2284 and that there was no loan transaction. 4. The court below framed necessary issues for trial. The evidence on the part of the plaintiff consists of the oral testimony of PW.1 and ExtsA1 to A16 (b). On the side of the defendants, the first defendant gave evidence as DW.1 and the third defendant gave evidence as DW.2, besides marking Exts.B1 and B2. The court below, on an appreciation of the evidence on record, found that Exts.A9, A11, A13 and A15 would clearly afford a strong circumstance probablising the execution of Ext.A2 hire purchase agreement. It has also noticed that the defendants did not respond to the notice sent by the plaintiff and the fact that the first defendant had given the particulars of the third defendant to the plaintiff which is shown in all the documents and the admission that the particulars were given by none other than the first defendant, would show that the third defendant is also connected with the transaction in question. It was also found that the suit is not barred by limitation. DW.1 had admitted the signatures in A.S. 306/1995 :3: Exts.A2, A3 and A4 as that of defendants 1 and 2. The third defendant is also a party to Ext.A4 which is a valid acknowledgment made by all the defendants. Hence the suit is found to be well within time. We have heard the learned counsel Sri. Jaju Babu appearing on behalf of the appellant. According to him, Ext.A4 will not hold a valid acknowledgment. He also submitted that Moosa was not alive during trial. We find that the evidence already produced on record would clearly show that the hire purchase agreement was executed by the defendants in favour of the plaintiff in respect of the vehicle in question. No acceptable evidence comes forth from the defendants' side as to why then they have executed such an agreement. Further, the acknowledgment Ext.A4, cannot be validly disputed which binds the defendants and was made during the subsistence of the date and constituted a valid acknowledgment. 5. In the above circumstances, we find that the finding of the court below is based on the evidence available on record and the conclusion reached therefrom is also a possible one. In the above facts and circumstances, the judgment and decree of the court below is perfectly valid and no interference is called for. The court below has reduced the interest to 20% towards future interest. 6. We may also point out that at the time of issuing notice to the A.S. 306/1995 :4: respondents before admission, this Court had directed deposit of an amount of Rs. 87,022.14 on or before 29.5.1996. More than 12 years are over. Yet the appellants have not complied with the order. In the above facts and circumstances, there is no merit in the appeal. Accordingly, the appeal is dismissed. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/- A.S. 306/1995 :5: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = A.S. NO. 306/1995 = = = = = = = = = = J U D G M E N T = = = = = = = = = 16.6.2008