IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 RSA.No. 787 of 2009() --------------------- AS.52/2007 of SUB COURT, VADAKARA OS.116/2006 of MUNSIFF COURT, VADAKARA .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------- PUTHIYOTTIL PRABHAKARAN S/O. POKKAN AGED 56 YEARS, MANIYOOR AMSOM DESOM VADAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT/RESPONDENT/PLAINTIFF ------------------------ CHOIMADATHIL DEVARAJN, S/O. VASUDEVAN AGED 43 YEARS, WELDER AZHIYUR AMSOM DESOM (P.O) ALIYUR (VIA) VADAKARA KOZHIKODE DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.787 OF 2009 --------------------------- DATED THIS THE 13TH DAY OF AUGUST, 2009 JUDGMENT Defendant in O.S.No.116/2006 on the file of the Munsiff's Court, Vatakara is the appellant. The suit was decreed by the trial court and confirmed in appeal. Hence, this second appeal. 2. Admittedly, the defendant borrowed a sum of Rs.60,000/- from the plaintiff on 5/12/2004 and he repaid an amount of Rs.15,000/- on 5/3/2005. Since the balance amount was not repaid within the time stipulated by the parties, the defendant agreed to execute a fresh agreement, which is produced and marked as Ext.A2. By Ext.A2 agreement the defendant agreed to pay a sum of Rs.55,000/- instead of making the balance amount of Rs.45,000/-. It is very important to note that defendant borrowed an amount not Rs.60,000/- from the plaintiff without any condition for payment of interest. Only -2- R.S.A.No.787/2009 when the defendant failed to pay Rs.45,000/- on the date agreed to be paid, the plaintiff insisted for payment of some interest. The learned counsel for the appellant submitted that Ext.A2 agreement will show that he is claiming damages for the belated payment. On a simple reading it can be seen that what was demanded or what was agreed is a reasonable rate of interest for the belated payment. Though the plaintiff paid an amount of Rs.60,000/- on 5/12/2004, he waited for the payment till January, 2006. Only after finding that no payment was made even within the said period of more than one year, the parties executed Ext.A2 agreement stipulating the payment of interest, though in the agreement the word used is 'damages'. The defendant admitted the execution of Exts.A1 and A2, but contended that his signature was obtained in Ext.A2 by threatening him that he would be put to shame in front of others. This is the only reason stated for contending that Ext.A2 cannot be relied upon. The trial court examined all the questions raised -3- R.S.A.No.787/2009 by the defendant. 3. The trial court on the basis of Exts.A1 and A2 found that the plaint claim is true. The trial court also examined the contentions of the defendant and held that it is not tenable and therefore the said contention was rejected. Defendant has preferred an appeal challenging the findings of the trial court. Both the courts below held that there is no acceptable evidence adduced by the appellant to prove the payment of Rs.40,000/- nor there is any proof to show that Ext.A2 agreement was executed under threat. The decree for realisation of Rs.51,200/- with interest at the rate of 6% per annum from the date of suit till realisation was confirmed by the Appellate Court based on the same set of facts and findings. 4. The decision was taken by the courts below solely based on the appreciation of facts and evidence adduced. The conclusions are rested purely on facts, circumstances and evidence. The appellant has not made out any ground to invoke -4- R.S.A.No.787/2009 this Court's jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.