IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 AS.No. 607 of 1997(E) --------------------- OS.575/1994 of PRL. SUB COURT ,THALASSERY .................... APPELLANT/DEFENDANT: ----------------- P.P. DAMODHARAN, S/O. RAMAN, PROPRIETOR OF PALAKEEL INDUSTRIAL AND ENGINEERING COMPANY, NOW RESIDING AT CHELERI AMSOM, VALAVIL CHELERI DESOM, THALIPARAMBA TALUK, KANNUR DIST. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.V.V.SURESH RESPONDENT/PLAINTIFF: ------------------- P.P. DAMODHARAN, S/O. P.P. KRISHNAN, PROPRIETOR OF THILAKA DYE WORKS, TRICHAMBARAQM DESOM, TALIPARAMBA TALUK, KANNUR DIST. ADV. SRI.A.MOHAMED MUSTAQUE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4507/97 IN A.S.NO.607/97 ------------------ Dismissed 6/`1/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. ----------------------------- A.S.NO.607 OF 1997 ----------------------------- DATED THIS THE 6TH DAY OF JANUARY, 2010 JUDGMENT The defendant in O.S.No.575/94 on the file of the Sub Court, Thalassery is the appellant. The suit was filed for realisation of Rs.39,520/- with interest. The trial court held that the plaintiff had succeeded in proving the plaint claim. The trial court passed a decree allowing the plaintiff to realise a sum of Rs.39,520/- with interest at the rate of 18% per annum on the principal sum of Rs.36,00/- from the date of suit till realisation with costs. Aggrieved by the judgment and decree the defendant preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff was running dye works. The defendant is the owner of the company, which is manufacturing the machineries for doing dye works. Plaintiff obtained quotation from the defendant. As per the quotation, the defendant agreed -2- A.S.No.607/97 to supply six machineries. The quotation issued by the defendant is dated 9/2/1992 for the supply of six machineries. According to the plaintiff, on 12/2/93 he paid a sum of Rs.62,500/- being the part value of the machinery mentioned in the quotation. It is alleged that the plaintiff paid the above-said amount by availing loan from the Kannur District Co-operative Bank. It is his case that the defendant did not supply 'Jalaja' machine mentioned as item No.1 in the quotation. The plaintiff lodged a criminal complaint before the Police requesting to take action against the defendant on the ground of cheating. It is the case of the plaintiff that when the police started investigation in the matter, the defendant approached the plaintiff and on 16/7/94 a settlement was arrived at between the parties in the presence of mediators and an agreement was executed by the plaintiff and th defendant. As per the terms of agreement, the value of the brand new rolling machine 'Jalaja' was fixed as Rs.36,000/- and the plaintiff paid a sum of Rs.8,200/- to the defendant on the same day and thus paid -3- A.S.No.607/97 the entire consideration towards the value of 'Jalaja' machine. As per the agreement, the defendant undertook to supply the said machinery within three months from 16/7/94. It was further agreed that in case the defendant was unable to supply the machinery as agreed, he is liable to pay Rs.36,000/- with interest at the rate of 18% per annum. The plaintiff also claimed an amount of Rs.3,000/- towards the value of 1.5 H.P. motor which he requested the defendant to attach the same to the Jalaja machine. On the basis of the aforesaid facts, the suit was filed for realisation of Rs.39,520/- with interest at the rate of 18% per annum. 3. The defendant filed a detailed written statement denying the plaintiff's claim. Ext.A1 is the agreement dated 16/7/94 alleged to have been executed between the plaintiff and the defendant. In paragraph 4 and the succeeding paragraphs of the written statement the defendant alleged that he was made to sign Ext.A1 agreement by force and he was taken in a car by the -4- A.S.No.607/97 plaintiff and his associates by force and they obtained the signature of the defendant. According to him, Ext.A1 is not a genuine document and the same came into force as a result of the coercion and undue influence exerted by the plaintiff. 4. The transaction between the plaintiff and the defendant is not in dispute. It is also not disputed that the defendant failed to supply the machine mentioned as item No.1 in the quotation. Plaintiff produced Ext.A1 agreement, which according to him, is executed by the parties pursuant to a settlement talk in the presence of the mediators. Ext.A1 was executed in the presence of two attesting witnesses. Ext.A1 is an agreement entered into between the plaintiff and defendant whereby the defendant agreed to pay a sum of Rs.36,000/- with 18% interest. 5. Plaintiff was examined as PW1 and one of the attesting witnesses to Ext.A1 was examined as PW2. Exts.A1 to A5 documents were marked on the side of the plaintiff. -5- A.S.No.607/97 Defendant was examined as DW1 and Exts.B1 to B10 were marked on his side. Plaintiff as PW1 proved the recitals in Ext.A1 agreement. He also tendered evidence in terms of the pleadings in the plaint. His evidence is supported by the oral evidence of PW2, who is an attesting witness to Ext.A1. 6. The contention raised by the defendant is that Ext.A1 is not a genuine document, but is a concocted document created for the purpose of filing the suit. According to the defendant, by exercising undue influence and coercion he was made to sign Ext.A1 agreement. It is the common case of the parties that Jalaja machine, which is item No.1 in the quotation, was not supplied by the defendant and that out of the six items of machineries agreed to be supplied, the defendant supplied only 5 items. In Ext.A1 the price of the machinery was fixed as Rs.36,000/-. The court below examined the contentions of the defendant in detail. The case of the defendant is that he was taken in a car by force and threatened to sign Ext.A1 agreement. -6- A.S.No.607/97 He failed to prove the said incident. Apart from his interested testimony, no evidence has been adduced in support of the said contention. No witness was examined to prove the incident that alleged to have taken place on 21/7/1994. When examined as DW1 the defendant tendered evidence stating that he lodged a complaint before the police regarding the incident taken place on 21/7/94. The trial court observed that the defendant did not take any steps to call for the register or the complaint alleged to have been filed by him before the police. Defendant produced Exts.B1 to B10. The trial court examined and appreciated all the documents produced by the defendant one by one. These documents had no bearing on the question as to whether the plaintiff and the defendant executed Ext.A1 agreement. The defendant failed to adduce any evidence in support of his case that Ext.A1 agreement was not executed on 16/7/1994. 7. The evidence adduced by the plaintiff supported his case that Ext.A1 agreement was executed by the parties to the -7- A.S.No.607/97 suit on 16/7/94. The contention of the defendant that Ext.A1 is not a genuine document; but it is vitiated by fraud or coercion, cannot be accepted for want of materials and legal evidence. The trial court, after examining the oral and documentary evidence concluded that the transaction as alleged in the plaint is true and that Ext.A1 agreement dated 16/7/94 is a valid and genuine one. Therefore, the court below passed a decree directing the defendant to pay to the plaintiff a sum of Rs.39,520/- with interest at the rate of 18% on the principal amount. I find that no grounds are made out by the defendant to interfere with the findings entered by the court below. I agree with the findings recorded by the court below and find that there is little merit in the appeal. 8. The learned counsel for the appellant submitted that the grant of 18% interest on the principal sum is excessive and requested this Court to vary the rate of interest. Taking into consideration the submission of the learned counsel and taking a -8- A.S.No.607/97 lenient view, the interest rate is to be modified. Accordingly, the decree passed by the court below is modified. The plaintiff is granted a decree for a sum of Rs.39,520/- with interest at the rate of 9% per annum from the date of the suit till realisation with costs. The appeal is partly allowed. HARUN-UL-RASHID, JUDGE. kcv. -9- A.S.No.607/97 HARUN-UL-RASHID,J. -------------------------- A.S.NO.607 OF 1997 -------------------------- JUDGMENT 6TH JANUARY, 2010