This is an appeal against the dismissal of a suit for recovery of a loan. The High Court upheld the trial court's decision, finding that the plaintiff failed to prove the execution of the alleged agreement and lacked the capacity to advance the loan amount based on the evidence presented.
The appeal was dismissed without any order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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:
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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:
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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.
A.S. NO. 588 OF 1999
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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.
A.S. NO. 588 OF 1999
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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
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M.N. KRISHNAN, J.
= = = = = = = = = = A.S. NO. 588 OF 1999
= = = = = = = = = = =
J U D G M E N T
2nd February, 2009.
3 issues framed by the court
Whether the trial court correctly dismissed the suit due to insufficient evidence regarding the execution of the agreement and the plaintiff's capacity to advance the loan amount.
Whether the plaintiff's claim of conducting a "kuri kalyanam" to raise funds supports his capacity to advance the loan amount to the defendant.
Whether the appellate court should interfere with the trial court's finding that the evidence was insufficient to prove the execution of the agreement and the borrowing fact.
K. SAJEEV
P. ABOOBACKER
M.N. KRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
