IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 AS.No. 588 of 1999(B) ------------------------- OS.222/1995 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)/PLAINTIFF: ---------------------------------- K. SAJEEV, AGED 32 YEARS, S/O CHATHUKUTTY, VAYALIL HOUSE, ELATHUR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.STALIN SRI.P.KUMARANKUTTY RESPONDENT(S)/DEFENDANT: ---------------------------------- P. ABOOBACKER, AGED 35 YEARS, S/O PAREEDKUTTY, PUTHANKULANGARA, MANNARAKKAL HOUSE, KODAKKATTUPARA, THENHIPALAM, AMSOM, DESOM, P.O. THENHIPALAM TIRUR TALUK. ADV. SRI.K.PRAVEEN KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 588 OF 1999 = = = = = = = = = = = = = = = Dated this the 2nd day of February, 2009. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.222/95 of the Subordinate Judge, Kozhikode. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.40,000/- agreeing to repay the same with 12% interest within a period of one year and that he had entered into an agreement with the defendant for the said purpose. The amount has not been paid hence the suit. 2. The defendant in his written statement would contend that he had no acquaintance with the plaintiff at all and that he has not borrowed any amount from the plaintiff nor executed any agreement in his favour and therefore the suit is not liable to be entertained. 3. In the trial court PW1 and DW1 were examined. Exts.A1, A2, A2(a) and A2(b) were marked. On an analysis of the evidence the trial court dismissed the case. It is against A.S. NO. 588 OF 1999 -2- that decision the plaintiff has come up in appeal. The whole controversy can be resolved only if there is some materials or evidence to establish execution of Ext.A1 agreement coupled with the borrowing of Rs.40,000/- as alleged by the plaintiff. The defendant has not only denied the execution of the agreement but has denied even the acquaintance with the plaintiff. There were two witnesses to the agreement. The plaintiff in spite of opportunity did not examine the witnesses to prove the execution of the same. He did not move an application for comparison of signature of the defendant with admitted signatures. So the Court found that the evidence of PW1 is insufficiently established the execution of Ext.A1. 4. The Court also considered the question of the probability of advancement of the amount. It is to be remembered the plaintiff is only a mini lorry driver. Even according to him previously defendant used to borrow a sum of Rs.100/- or 200/- from him. He would depose that he had conducted a kuri kalyanam for raising the funds. I do not feel that anybody will conduct a kuri kalyanam for the purpose of A.S. NO. 588 OF 1999 -3- advancement of money to somebody else. It will be done only if one is in requirement of the amount. It is a practice in Malabar that in order to conduct the marriage of children or for emergency reason of funds this practice is adopted. It is never adopted for the purpose of advancing amount for somebody else. Further there is no evidence before Court to show that the plaintiff had conducted a kuri kalyanam and nobody has been examined. So the trial Court rightly found that there is no evidence acceptable to establish the factum of the capacity of the plaintiff to advance amount and therefore the trial court dismissed the suit on the ground of non proof of execution of Ext.A1 as well as the capacity to part with Rs.40,000/-. I do not find any mistake committed by the trial Court in passing such a judgment. Therefore the finding of the trial court does not call for any interference. Hence the appeal lacks merit and he same is dismissed but without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 588 OF 1999 -4- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 588 OF 1999 = = = = = = = = = = = J U D G M E N T 2nd February, 2009.