(1.) R .F.A.No.253/2005 arises out of the judgment and decree in O.S.No.709/1999 of the Principal Sub Court, Ernakulam, and R.F.A.No.254/2005 arises out of that in O.S.No.437/2000 of the 1st Addl. Sub Court, Ernakulam. The unsuccessful defendant is the appellant in both these appeals. As parties are the same and the contentions raised in both these cases are similar, we dispose of these appeals by a common judgment.
(2.) R .F.A.No.253/2005 is filed by the defendant in O.S.No.709/99 on the file of the Principal Sub Court, Ernakulam. The plaintiff, the respondent herein, filed the said suit for recovery of money for realization of a sum of 38,97,520.55 from the defendant together with future interest at the rate of 15% per annum on the principal amount of Rs.29 lakhs and costs. By judgment and decree dated 20.12.2003, the court below decreed the suit in part allowing the plaintiff to recover an amount of Rs.29 lakhs together with 6% interest from 5.1.1997 till the date of realisation and proportionate costs of the suit, from the defendant and all his assets. It is challenging the said judgment and decree of the court below, the defendant is in appeal before us.
(3.) THE defendant filed written statement and the averments in the written statement, in brief, are as follows; the suit is barred for non -joinder of M/s Chakkiath Finance which is a necessary party even as per the alleged promissory note produced along with the suit. The defendant neither executed any promissory note in favour of the plaintiff nor borrowed any amount from him and there is absolutely no monetary transaction between them as creditor and debtor. There was no occasion for the defendant to borrow Rs.29 lakhs and Rs.7 lakhs from the plaintiff as alleged. The plaintiff used to deposit huge amounts in M/s.Chakkiath Finance and to the knowledge of the defendant he is collecting interest for the same from the said company. The defendant has absolutely no involvement in the business of the said financing company. The plaintiff was the legal consultant of the defendant and he was a good family friend of the defendant's brother -in -law named Ouseph Mathews. When M/s.Chakkiath Finance become bankrupt, many of the depositors initiated legal proceedings against it for recovering their amount. In the above circumstances, the plaintiff approached the defendant and requested him to issue a letter just to compel M/s.Chakkiath Finance to repay the amount outstanding to the plaintiff. The plaintiff also made the defendant to believe that such a letter is required to pacify his men and not to initiate any proceedings against the defendant. The plaintiff exercised undue influence over the defendant and managed to get a letter from the defendant that too in a white paper without any stamp. The defendant bonafide suspect that the plaintiff manipulated that letter, which was obtained under undue influence, by affixing stamp. Except in two occasions, all other times the plaintiff himself had deposited the amount in M/s.Chakkiath Finance. As the plaintiff has elected Chakkiath Finance as his creditor and collected interest from them regularly, he is estopped from contending that, it is the defendant who borrowed the amount and the amount should be repaid by the defendant. The defendant has also denied the allegation that the promissory note executed on