This appeal arises from a suit for money recovery under a chitty transaction dismissed by the trial court accepting a plea of discharge based on payment receipts and release of mortgaged title deed. The High Court upheld the trial court's finding that the liability was settled.
RFA No.346 of 2007 is dismissed with no order as to costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RFA NO. 346 OF 2007
AGAINST THE JUDGMENT DT. 19.10.2006 IN OS 138/2003 OF PRINCIPAL SUB COURT, NORTH PARAVUR
APPELLANT/PLAINTIFF:
ANGAMALY CHITTY FUND(P)LTD., ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN
RESPONDENTS/DEFENDANTS:
1 M.J.SAJI S/O MOONJELI JOSEPH, MOONJELI, THURAVOOR KARA, THURAVOOR VILLAGE, ALUVA TALUK.
2 SEBY ITTIYACHAN, S/O.VADAKKUMCHERY ITTIYACHAN, VADAKKUMBHAGOM KARA, MANJAPPRA VILLAGE, ALUVA TALUK.
3 MOLY SEBY, W/O.SEBY, VADAKKUMBHAGOM KARA, MANJAPPRA VILLAGE, ALUVA TALUK.
BY ADV SRI.K.C.ELDHO – FOR R1
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = RFA No.346 of 2007
= = = = = = = = = = = = = = = = = = Dated this the 6th day of February, 2024
J U D G M E N T
The suit for money under a chitty transaction was
dismissed by the trial court. The plaintiff is in appeal.
Chitty conducted by the plaintiff. He bid the chitty. The repayment was secured by defendants 2 and 3, and
also by creation of equitable mortgage. Alleging default
on the part of the defendants to pay the amount, the suit was filed.
behalf of the appellant and Sri. K.C.Eldho the learned counsel for the 1st respondent.
RFA No.346 of 2007
-: 2 :-
“Is the finding of the trial court on the plea of discharge sustainable on the evidence?”
of money due from the defendants. One was before the Munsiff's Court, Aluva as OS 121/2003, and the present suit as OS 138/2003 before the Sub Court, North Paravur. According to the plaintiff, in pursuance of the notice issued by the plaintiff, the defendant approached him on 01.03.2004 and settled the suit claim pending before the Munsiff's Court, Aluva, and part payment was made with regard to the dues in the present suit. However, due to a mistake on the part of the staff in the office, he made an endorsement that both the accounts are closed. The suit claim in OS 138/2003 remains unsettled, is the contention.
RFA No.346 of 2007
-: 3 :-
amount of 2,80,000/-. It contains an endorsement “claim satisfied”. It is endorsed therein that the payment thereunder is towards OS 138/2003 before the Sub Court, North Paravur, that is the present suit. Ext.B3 is the receipt for payment of 51,000/-. The same is indicated as towards OS 121/2003 before the Munsiff's Court Aluva. Therein also it is endorsed, “claim satisfied”. Ext.B2 is the pass book relating to the chitty. The endorsements therein are also to the effect that the dues have been paid.
RFA No.346 of 2007
-: 4 :-
records including Ext.A7 were called for from this Court, an affidavit has been filed by the plaintiff on 09.12.2023 that Ext.A7 ledger is irrecoverably lost due to termite bite. No material is produced before this Court to dislodge the finding of the trial court. Though the plaintiff would contend that the endorsements in Exts.B1 to B3 regarding settlement of the claim is a mistake, it is to be noticed that the original title deed which was mortgaged with the plaintiff was also released. Unless the entire liability was settled, the title deed would not have been released. Therefore, the release of the mortgage coupled with Exts.B1 to B3 indicates that the liability of the defendants with the plaintiff were settled. There is no material to find that there is any outstanding liability.
on the plea of discharge is based on materials. I concur with the finding of the trial court. There is no merit
RFA No.346 of 2007
-: 5 :-
in the appeal.
The appeal fails and is dismissed.
Sd/-
SATHISH NINAN JUDGE
kns/-
//True Copy//
P.S. to Judge
1 issue framed by the court
Is the finding of the trial court on the plea of discharge sustainable on the evidence?
1 provisions across 1 enactments
ANGAMALY CHITTY FUND(P)LTD.
M.J.SAJI
SEBY ITTIYACHAN
MOLY SEBY
SATHISH NINAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
