Dismissed

Ratnakaran v. Prasannakumari

Kerala HC8 Feb 2018RFA/413/2012

Case brief

AI extract

What is this about?

In this regular first appeal, the Kerala High Court dismissed the appeal filed by Ratnakaran challenging the decree dismissing his suit for recovery of Rs.3,00,000 lent to the late Balakrishnan. The single judge upheld the trial court's finding that the appellant failed to prove the loan transaction believable or demonstrate his own financial capacity to lend such an amount.

What did the court decide?

The appeal is dismissed, confirming the trial court judgment and decree in OS No. 481 of 2009.

Ratnakaran Vs Prasannakumari — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939

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RFA.No. 413 of 2012

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AGAINST THE DECREE & JUDGMENT IN OS 481/2009 OF THE COURT OF FIRST ADDITIONAL SUBORDINATE JUDGE, KOZHIKODE DATED 30-11-2011

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APPELLANT(S)/PLAINTIFF:

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RATNAKARAN, AGED 46 YEARS, S/O.CHATHU, RATHNAVILAS, VALAYANAD AMSOM DESOM, CALICUT-673007, KOZHIKODE TALUK.

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BY ADVS.SRI.V.T.MADHAVANUNNI

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SRI.V.A.SATHEESH

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SRI.J.ABHILASH

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RESPONDENT(S)/DEFENDANTS:

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1. PRASANNAKUMARI, AGED 42 YEARS, W/O.BALAKRISHNAN, KALATHUMTHODI, KUNDAYITHOD P.O., KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

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2. VIPIN, AGED 18 YEARS,

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S/O.BALAKRISHNAN, KALATHUMTHODI, KUNDAYITHOD P.O.,

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KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. ABRAHAM MATHEW, J.

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R.F.A. No. 413 of 2012

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Dated this the 8^th day of February, 2018

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J U D G M E N T

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The appellant was the plaintiff in OS No. 481 of 2009 on

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the file of the Subordinate Judge, Kozhikode. The allegation was that one Balakrishnan, whose wife and child are the respondents/defendants, borrowed from the appellant Rs.3,00,000/- (Rupees three lakhs only) on 25.03.2008 for his business purpose; Balakrishnan issued a withdrawal form of a bank. Later, he executed an agreement undertaking to repay the amount with interest at 10% per annum within six months. Balakrishnan died before the institution of the suit. The appellant prayed that he may be allowed to recover Rs.3,00,000/- (Rupees three lakhs only) with interest from the assets of Balakrishnan in the hands of respondents. The respondents in their written statement denied the transaction and execution of documents referred to in the plaint. The court, after trial, found that the appellant's

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..2..

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R.F.A. No. 413 of 2012

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case is not believable and accordingly, it dismissed the suit with costs. The judgment and the decree are challenged.

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2.Heard the learned counsel for the appellant.

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3.The point arising for consideration is whether Balakrishnan borrowed Rs.3,00,000/- (Rupees three lakhs only) from the appellant.

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4.The appellant was examined as PW1. He testified that on 25.03.2008, Balakrishnan borrowed from him Rs.3,00,000/- (Rupees three lakhs only) for his business purpose and issued Ext.A2 withdrawal form of a bank; later, he executed Ext.A1 agreement undertaking to repay the amount with interest @ 10% per annum within six months. PW2 claims to have seen Balakrishnan executing Ext.A1 agreement.

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5.One of the specific contentions of the respondents is that Ext.A1 or Ext.A2 was not executed by Balakrishnan. Two signatures appear in Ext.A1. Its appearance shows that they were not put by the same person. Both signatures are different from the signature appearing in Ext.A2

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..3..

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R.F.A. No. 413 of 2012

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withdrawal form. The testimony of PW1 & PW2 that Balakrishnan executed Exts.A1 & A2 is not at all believable.

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6.It is difficult to believe that the appellant lent Rs.3,00,000/- (Rupees three lakhs only) to Balakrishnan after taking Ext.A2 withdrawal form. A withdrawal form cannot be used to withdraw money by anyone other than the depositor.

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7.In the cross-examination of PW1 it came out that he took

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two cheque leaves from Balakrishnan. This is a new case developed in the witness box. It is not known what happened to those cheque leaves.

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8.Respondents raised a definite contention that Balakrishnan had no business. PW1 in his cross-examination admitted that Balakrishnan had no place of business. According to him, Balakrishnan used to sell clothes on instalment basis. If this is true, it is difficult to believe that Balakrishnan had the capacity to repay Rs.3,00,000/- (Rupees three lakhs only). It is equally unbelievable that the plaintiff advanced a loan of

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R.F.A. No. 413 of 2012

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..4..

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Rs.3,00,000/- (Rupees three lakhs only) to him though he was not able to repay it.

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9.The appellant claimed in the witness box that he is an industrialist and that there were five employees under him. But, he is not an income tax payee. He admitted that there is no evidence to show his income. It is pertinent to note that in his written statement there is a specific contention that the appellant did not have the capacity to lend Rs.3,00,000/- (Rupees three lakhs only). It is in spite of this, he failed to adduce any satisfactory evidence to prove that he had the financial capacity to lend Rs.3,00,000/- (Rupees three lakhs only).

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10.For all these reasons, I agree with the trial court that the appellant's case is not true. The judgment and the decree are only to be confirmed.

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In the result, this appeal is dismissed.

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Sd/-

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K. ABRAHAM MATHEW JUDGE

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bka/

Ratnakaran v. Prasannakumari

Case brief

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Ratnakaran v. Prasannakumari

Case brief

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