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Judgment
V. Chitambaresh, J.—The short question is as to whether the document dated 5-2-2009 relied on by the plaintiff in the suit for realisation of money is an ''agreement'' or a ''bond''. The plaint proceeds on the basis that the execution of the document was contemporaneous with the payment of money by the plaintiff in favour of the defendant which is further clarified in the averments relating to cause of action. The document read as a whole would reveal that a liability has been created for the first time on the defendant and his properties under the document and that there is no pre- existing liability. It has been held in a catena of decisions that a document which creates liability for the first time is a ''bond'' and not an ''agreement''. The following are the few.
(i) West Coast Electroplating Co. Ltd. vs. Sreedharan (1971 KLT 383)
(ii) State Bank of Travancore vs. Thayikutty Amma (1988 (2) KLT 111)
(iii) Mathai Mathew Vs. Thampi (1989 (1) KLT 138)
(iv) Viswanathan Vs. Leslie Philip,
The decision of Radha Vs. Sankaranarayanan, relied on by the plaintiff is distinguishable. The document referred to in that decision reflected the borrowal of money at an anterior point of time to meet the travel expenses abroad.
The case on hand deals with the contemporaneous execution of the document with the advancement of money as revealed from the conjoint reading of the terms of document and the averments in the plaint. I have no hesitation to hold that the document dated 5-7-2009 (Ext.P3) is a ''bond'' and not an ''agreement'' as has been found by the court below. The impugned order in O.S No.270/2009 on the file of the Court of the Subordinate Judge of Tirur is set aside. The court below is directed to proceed further accordingly.
The Original Petition (Civil) is allowed.No costs.