IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 AS.No. 629 of 1995() -------------------- OS.226/1992 of ADDL.SUB COURT, NORTH PARAVUR .................... APPELLANT: PETITIONER --------------------- SARADAMMA, W/O. RAVEENDRAN NAIR, PAVANAKOPPARAMBIL HOUSE, VALLUVALLY MURI, KOTTUVALLI VILLAGE, PARUR TALUK. BY SR. ADV. SRI.K.RAMAKUMAR SMT.VANI.P. RESPONDENT: RESPONDENT ----------------------- RAGHUNANDANAN, WORKING AT CHALAKUDY APPOLO TYRES, TREKKER C SECTION, CHALAKUDY. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.629 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 29th September, 2008 JUDGMENT The plaintiff in a suit for money which was dismissed by the trial court is the appellant. Briefly stated the plaintiff's case is that the defendant-respondent had availed a loan of Rs.20,000/- from the Parur Co-operative Bank and as requested by the defendant the plaintiff and her husband stood as sureties. The plaintiff happened to stand as surety for the loan transaction on the basis of an assurance given by the defendant that the loan will be closed without delay and that the plaintiff and her husband will never be called upon to liquidate the loan amount. The defendant violated the assurance and a situation arose whereby the plaintiff's properties were about to be proceeded with since in spite of demands by the plaintiff, the defendant did not bother to discharge the liability due to the Bank. To avert that situation, the plaintiff herself remitted a sum of Rs.26,399.25 with the Bank on behalf of the defendant. After making such remittances, several demands followed by a written notice was issued to the defendant for repayment of the amount. The suit is instituted for repayment of the amounts since the plaintiff's demands on the defendant for repayment were not successful. 2. The respondent-defendant contended inter alia that though AS No.629/95 - 2 - the loan stood in his name, he had not received the proceeds of the loan nor utilised the loan amount. According to him, the plaintiff's husband and his brother one Narayana Pillai were operating a bus service by name Haris and request the plaintiff's son who was managing the affairs of the bus service. As many as three loans were taken in the names of different persons including the defendant for the business purposes of the plaintiff and others. The other two loans were availed in the name of the plaintiff and her husband themselves with the defendant as surety. All the three loans were utilised by the plaintiff and her husband who undertook to close the loan taken in the name of the defendant without delay. It was contended that the defendant is not liable to account for the plaint transactions. It was specifically contended that the security property was sold by the plaintiff and her husband who purchased another bus with the sale proceeds. The disputes arose between the plaintiff's husband and his brother Narayana Pillai and the partnership arrangement between them was brought to an end. 3. The learned Subordinate Judge on the above pleadings raised the following four issues: 1. Whether the suit is bad for non-joinder of necessary parties? 2. Whether the loan from the Paravur Co-operative Bank mentioned AS No.629/95 - 3 - in the plaint was availed by the plaintiff? Whether that loan amount was received and utilised by the plaintiff herself? 3. Whether the plaintiff is entitled to recover any amount from the defendant? 4. Reliefs and costs. At trial the evidence consisted of Exts.A1 to A3 and X1 to X4 on the side of the plaintiff and the oral testimony of D.W.1 and Exts.B1 to B3 on the side of the respondent-defendant. As regards issue No.1, i.e., whether the suit is bad for non-joinder of necessary parties, the learned Subordinate Judge held that since the suit is based on Ext.A1 receipt issued in favour of the appellant-plaintiff, there was no necessity to implead the appellant's husband or anybody else. The main issue, issue No.2 was considered by the learned Subordinate Judge in the light of the evidence which had come on record in the case. The learned Judge noticed that there was absolutely no evidence to support the case of the plaintiff that she became constrained to discharge the liability due to the Paravur Co-operative Bank since successive demand notices were received by her threatening action against her properties and that it is to save the properties from sale that amounts were paid under Ext.A1. The evidence in the case adduced by P.W.2, the Secretary of the Paravur AS No.629/95 - 4 - Co-operative Bank was to the effect that the Bank had never issued any notice at all to the plaintiff and that it was to the defendant alone that the Bank had issued notice. Thus on the basis of this evidence the learned Subordinate Judge would find that the very foundation of the appellant's case regarding the circumstances under which demand was made and Ext.A1 was taken had fallen to the ground. The learned Subordinate Judge also found on the basis of an agreement which was admitted by P.W.1 on being confronted with the same during cross-examination that the plaintiff had ceased to have any interest over the security property and had parted with possession over the security property in favour of one Poulose. The above circumstance was noticed by the learned Subordinate Judge as a circumstance demolishing the plaintiff's case that she made the remittance for salvaging the security property from sale. 4. I have reappreciated the entire evidence on the basis of which findings were entered by the learned Subordinate Judge in his judgment and I am convinced that appreciation of evidence adduced in the case by the learned Subordinate Judge was quite proper and the findings on the issues were justified. The argument of the learned counsel for the appellant was that since the loan stood in the name of the defendant, it should have been presumed that the liability is AS No.629/95 - 5 - primarily that of the defendant himself and when Ext.A1 shows that it was the plaintiff who discharge that liability, the defendant's obligation to make good the payment covered by Ext.A1 to the appellant could not be denied. But I find that this is a case where evidence has been adduced by both parties and findings have been entered by the learned Subordinate Judge on the basis of such evidence. Having reappreciated the evidence, I am of the view that the findings entered by the learned Subordinate Judge on the various issues in this case cannot be erroneous and that they are founded on the evidence in this case. Several circumstances noticed and pointed out by the learned Subordinate Judge in his judgment for holding that the version of the plaintiff is a highly probable one appeal to me also. The result of the above discussion is that the appeal fails and the same will stand dismissed. But in the circumstances of the case, the parties are directed to suffer their costs through out. srd PIUS C.KURIAKOSE, JUDGE