V. RAMKUMAR J

1. In this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, the appellant who was the plaintiff in O.S.No.237/1984 on the file of the Subordinate Judge’s Court, Kottayam challenges the judgment and decree dated 03.02.1997 passed by a learned Single Judge of this Court in A.S.No.269/1988.

2. The aforementioned suit O.S.No.237/1984 was one for realisation of a sum of Rs.28966.65 with 12% interest on the principal amount of Rs.25,000/- from the date of the suit namely 09.11.1984.

3. The case of the plaintiff can be summarised as follows:-

The plaintiff and the defendant are close friends. There were previous money transactions between them. On 20.06.1983 the defendant borrowed a sum of Rs.5000/-from the plaintiff. Subsequently on 15.07.1983 he borrowed a further amount of Rs.20,000/- from the plaintiff. The defendant agreed to repay the total amount of Rs.25,000/- with interest at the rate of 12% per annum or before 30.08.1983. The defendant, however, failed to fulfill the promise. To a lawyer notice sent on 22.06.1984 demanding the said amount, the defendant did not comply with the said demand. Hence the suit.

4. The suit is resisted by the defendant contending inter alia as follows:-

The plaint averments are false. The defendant did not borrow any amount as alleged in the plaint and there was no necessity also for the defendants to obtain a loan from the plaintiff. A proper reply notice was given to the lawyer notice sent by the plaintiff. The defendant is not bound to repay any amount to the plaintiff. The suit is, therefore, liable to be dismissed.

5. The trial court framed two issues for trial, the principal issue being whether the defendant obtained a loan of Rs.25,000/- from the plaintiff as alleged.

6. On the side of the plaintiff, the plaintiff examined himself as PW1 and got market Exts.A1 to A3. On the side of the defendant, he examined himself as DW1 and also examined one Thankappan Nair as DW2. No documentary evidence was adduced on the side of the defence.

7. The learned Sub Judge after trial as per judgment and decree dated 29.8.1987 decreed the suit as prayed for.

8. Aggrieved by the judgment and decree passed by the learned Sub Judge the defendant preferred an appeal to this Court as A.S.No.269/1988. As per judgment and decree dated 03.02.1994 a learned Single Judge of this Court allowed the appeal setting aside the judgment and decree passed by the trial court and dismissed the suit filed by the plaintiff. Hence this intra-court appeal to this Division Bench.

9. Eventhough the respondent/defendant was duly served, he has not chosen to enter appearance or contest this appeal. We, therefore, heard Senior Adv.Sri.S.V.Balakrishna Iyer, the learned counsel appearing for the plaintiff and also perused the records.

10. After hearing the learned counsel appearing for the appellant and perusing the records we are of the view that the judgment and decree passed by the learned Judge cannot be sustained in law and that the judgment and decree passed by the trial court are liable to be restored.

11. The trial court which decreed the suit had mainly relied on the following circumstances to support its conclusion that the suit claim was true and sustainable:-

1. Since on the question of borrowal, there was only oath against oath between the disputing parties, the court was left with the only option of going by the probabilities of the case.

2. Admittedly both the plaintiff and the defendant are close friends and there was no convincing reason forthcoming as to why the plaintiff was constrained to sue his friend, the defendant, unless the plaintiff’s case was true. (para 5)

3. The defence story put forward and that too for the first time in evidence that the plaintiff’s brother had purchased a Mahindra Jeep which was outstanding on hire purchase and the plaintiff’s brother approached the defendant for assistance and with his help pledged the jeep with one C.V.John, a co