Ammikkodan Muhammed Kutty v. Kottuvala Aboobacker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932** **SA.No. 257 of 1998(E)** **-------------------------------** **[AS.NO.125/1991 OF SUB COURT, TIRUR, OS.NO.154/1990 OF MUNSIFF'S COURT,PARAPPANANGADI]** **....................** ## **APPELLANT/APPELLANT/DEFENDANT:** **--------------------------------------------------------** **AMMIKKODAN MUHAMMED KUTTY, S/O. RAYINKUTTY, AGED 37 YEARS, VALAKULAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.K.ABOOBACKER (EDATHALA), SRI.P.CHANDRASEKHAR.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **------------------------------------------------------------** **KOTTUVALA ABOOBACKER, S/O. ALIKUTTY, AGED 33 YEARS, NANNAMBRA AMSOM DESOM, POST NANNAMBRA, TIRUR TALUK, MALAPPURAM DISTRICT.** ## **BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## S.A. Nos. 257 & 258 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2010. ## **JUDGMENT** Two suits, namely, O.S. 431 of 1989 and O.S. 154 of 1990 between the same parties were tried and disposed of by the Munsiff's Court, Parappanangadi. O.S. 431 of 1989 was dismissed and O.S. 154 of 1990 was decreed. Aggrieved by the decree in O.S. 431 of 1989, the plaintiff carried the matter in appeal as A.S. 65 of 1991 and aggrieved by the decree against him, the defendant carried the matter in appeal as A.S. 125 of 1991. Both the appeals were heard together and were disposed of by a common judgment. The appellate court allowed A.S. 65 of 1991 and in O.S. 431 of 1989 the plaintiff was given a decree as prayed for. A.S. 125 of 1991 was dismissed. The defendant in the suits has therefore come up in appeal. S.A. 258 of 1998 is directed against the judgment and decree in A.S. 65 of 1991 and S.A. 257 of 1998 is against the judgment and S.A.257 & 258/1998. 2 decree in A.S. 125 of 1991. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The parties in the two suits are same. In fact they are brother-in-laws. To be more precise, the defendant in both the suits had married the sister of the plaintiff. Both the suits were for recovery of amounts said to have been given as loan by the plaintiff to the defendant. O.S. 431 of 1989 was for a sum of Rs. 10,000/-. O.S. 154 of 1990 was for a sum of Rs.5,500/-. Both these payments were made through cheques according to the plaintiff. The plaintiff also put forward a case that for the purpose of construction of a house the defendant had incurred debts and in order to discharge the debts the amount was received as loan from the plaintiff. Inspite of repeated demands the amount was not paid. In both the suits almost the same allegations are made by the plaintiff. 3. Defendant denied that he had borrowed any amount from the plaintiff. According to him there was no S.A.257 & 258/1998. 3 necessity for him to do so because he was in an affluent circumstance. According to him, promising visa, the plaintiff had received a sum of Rs.15,500/- from him. Visa was not made available and the amount was demanded by the defendant. Then the plaintiff issued two cheques. It is therefore contended that no amount was due from him and that the suit be dismissed. 4. Issues were raised in both the suits and evidence was taken in both the suits independently. As already stated O.S. 431 of 1989 stood dismissed and O.S. 154 of 1990 was decreed. Appeals as mentioned earlier were filed and the result have also been noticed. The judgments and decrees of the lower appellate court are assailed in these appeals. 5. The following questions of law are seen raised in the Memorandum of Second Appeal: _“ S.A. 257/1998._ _i) Whether or not the burden of pleading and establishing that the amount claimed had been given as loan or to create liability by the_ S.A.257 & 258/1998. 4 _respondent is nor on the plaintiff in view of 1986 K.L.T. 647?_ _ii) Whether or not the burden to prove the case set up by the plaintiff is not on the plaintiff in view of Section 101 of the Evidence Act?_ _iii) Whether or not the casting of burden on the defendant to prove his case before the burden to his by the plaintiff is discharged by him is correct or sustainable in law?” S.A. 258 of 1998._ _i) Whether or not the burden of pleading and establishing that the amount claimed had been given as loan or to create liability by the respondent is nor on the plaintiff in view of 1986 K.L.T. 647?_ _ii) Whether or not the burden to prove the case set up by the plaintiff is not on the plaintiff in view of Section 101 of the Evidence Act?_ _iii) Whether or not the casting of burden on the defendant to prove his case before the burden to his by the plaintiff is discharged by him is correct or sustainable in law?”_ 6. Learned counsel appearing for the appellant in both these appeals pointed out that the lower appellate S.A.257 & 258/1998. 5 court was not justified in accepting the case put forward by the plaintiff. Referring to the pleadings in the plaint in both the suits, the case was that the defendant had borrowed a sum of Rs.15,500/- on two occasions, i.e. Rs.10,000/- and Rs.5,500/- by way of two cheques and he had not repaid the amount. When the plaintiff was examined as P.W.1 he had put forward a different case altogether and on going through his evidence it can be seen that those amounts were sent by him for the benefit of his sister. According to learned counsel, there is nothing to show that the defendant in both the cases had incurred any debt as a result of the construction of the house and there was no proof regarding the same. Even assuming that there was such payment, it can be treated as gratuitous payment for which no action lies. It was also pointed out that the lower appellate court has cast the burden erroneously on the defendant. Relying on the principle of burden of proof, it is contended that the burden to prove that the amount had been paid to the defendant and it is by way of a loan is on the plaintiff and S.A.257 & 258/1998. 6 that cannot be shifted to the defendant. In support of his contention, learned counsel relied on the decision reported in **Parukutty v. Province of Madras** (1961 K.L.T. 846). It is also pointed out that going by the averments in the plaint it is a case of undue enrichment falling within the ambit of Section 70 of the Act. If that be so, the ingredients of Section 70 will have to be established. Emphasis was laid on the fact that there is considerable variance between the pleading and the evidence adduced by the plaintiff and they cannot go together. On that sole ground, the plaintiff has to fail. 7. Per contra, learned counsel appearing for the respondent pointed out that it is true that there is some variance between the pleading and the evidence in the case. But that is not material. If one looks at the defence set up by the defendant in both the suits, it can be seen that he has no consistent case. The plaintiff had produced Ext.A1 document, that is the reply notice sent by the defendant to the sister of the plaintiff, wherein it is stated that he had not S.A.257 & 258/1998. 7 received any amount from the plaintiff at all. At the time of filing the written statement in the suit he had a different story to say. Then he came forward with a story of plaintiff having promised a visa and received a sum of Rs.15,500/from him. The defendant was unable to establish the said fact. At the time of final hearing, his case was that the amounts were sent for the benefit of his sister and if that be so, he cannot be made liable for the amount. In the light of these inconsistent and contradictory stands and in the light of the evidence available the burden is on the defendant to prove under what circumstance the amounts were received and why he is not liable to repay the amount. In support of the contention so raised by the learned counsel for the respondent, she relied on the decision reported in **Ratnavelu v. Murukesan Pillai** (1968 K.L.T. 108). 8. The trial court in O.S. 431 of 1989 was greatly impressed by the inconsistencies in the pleadings and evidence of P.W.1. It is true that in the plaint what is stated is that the amount was received as a debt and it was S.A.257 & 258/1998. 8 received from the house of the plaintiff. At the time of giving evidence as P.W.1, the plaintiff has stated that the amounts were sent from abroad to the defendant. Towards the end of his cross examination he has stated that it was intended for the benefit of his sister. He was confronted with his evidence when he was examined in the other suit also, i.e. O.S. 154 of 1990. He denied having made the statement referred to earlier. These aspects are highlighted by the learned counsel for the appellant to show that a decree ought not to have been granted in favour of the plaintiff. 9. One cannot omit to note that as far as O.S. 154 of 1990 is concerned, the trial court too accepted the case put forward by the plaintiff. May be that one could say that the plaintiff became more wise after the first event. But the fact remains that the defendant admits of having received Rs.15,500/-, but his varying explanations have not been established at all. It is clear that as rightly pointed out by the learned counsel for the respondent the inconsistent and S.A.257 & 258/1998. 9 contradictory stand taken by the defendant on various occasions assumes importance and significance. Initially the case was that he had not received any amount at all. At the time filing the written statement he came forward with a story that the plaintiff had promised him a visa and towards the same the plaintiff received a sum of Rs.15,500/- and finally he says that even going by the evidence of the plaintiff it was a payment made for the benefit of his wife, so that he is not bound to return the amount. 10. One cannot omit to note the claim of the defendant in Ext.A1 reply notice. There, he specifically disputed having received any amount sent by the plaintiff. That means that even assuming that it was sent for the benefit of his wife, the amount has not been used for that purpose. It is in that context one has to view the plea that the plaintiff has unduly enriched himself. 11. Apart from the above fact, the lower appellate court had elaborately considered the matter and has come S.A.257 & 258/1998. 10 to the conclusion that there is clinching evidence to show that the amount was infact received by the defendant. 12. It is true that the burden remains on the plaintiff to prove that the defendant had received the amount and that he had failed to repay the same. The fact that he had received the amount is almost admitted. But the defendant gives a different story regarding the receipt. Therefore it could not be said that the trial court has cast the burden wrongly on the defendant in the context in which it was observed that the defendant has failed to prove his case. That does not mean that the burden has been erroneously shifted from plaintiff and cast on the defendant. On the basis of the evidence in the case it was found that the defendant had received the amount, therefore the burden was cast on the defendant to disprove the same or to explain that it was not received as a debt or that he was not bound to repay the money. 13. Even assuming that the case falls under Section 70 of the Contract Act, one fails to understand how S.A.257 & 258/1998. 11 the defendant can escape from repaying the amount. In the decision reported in **Ratnavelu's case** it was held as follows: _“If a person, not intending to act gratuitously, delivers something to another and that thing is accepted and enjoyed by the latter a legal relationship is born between the two which, under S.70 of the Contract Act, gives rise to a claim for compensation. It is admitted that the plaintiff had delivered the amount to the defendant and that the defendant had enjoyed the benefit of that payment. That the payment of the plaintiff was not gratuitous is also conceded. Thus all the three conditions requisite for attracting S.70 of the Contract Act are conceded in the case. It then follows that the defendant is bound to repay the amount paid. That the thing delivered cannot be restored in specie is too hypertechnical an objection to carry conviction. If, under the Section, goods delivered are to be returned, there is no good reason to hold that money paid need not be returned.”_ S.A.257 & 258/1998. 12 14. Borrowing the principle from the above decision, as contended by the defendant, he is still bound to repay the amount. What is significant is that the trial court took different views in the two suits on identical contention put forward by the plaintiff. The principle applies in both the cases, and that is all what the appellate court has done. The appellate court has found that there was no reason to apply two different standards to the two cases when they stand on identical footing. The fact remains that the evidence clearly show that the defendant had received the amount as alleged by the plaintiff. May the reasons given are different. But the fact remains that it was not a gratuitous payment at all. As already noticed, he has no case that he has used it for the purpose for which the plaintiff in his evidence had stated to have sent the amount for. It is clear that one has to notice the statement in Ext.A1 in which he says that he has not received any amount at all. Viewed from any angle, it could not be said that the lower appellate court was unjustified in dismissing appellant's S.A.257 & 258/1998. 13 appeal and decreeing the respondent's appeal. In both the appeals the question was there was a debt and whether there were payments etc and whether the defendant was liable to repay the money received by him. The findings are questions of fact. The lower appellate court has considered the matter in detail in the light of the facts and evidence in the case and found in favour of the plaintiff. No substantial question of law, much less any substantial question of law arises for consideration warranting interference under Section 100 of the Code of Civil Procedure. These appeals are without merits and they are accordingly dismissed. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.