Geemon Chettiyattu S/O Chacko v. George Pillai S/O Devassia; Sebastian V.S. S/O Devassia; Isaac V.S. S/O Devassia (RFA 156/2009) and Geemon Chettiyethu S/O Chacko v. George Pillai S/O Devassia; Sebastian V.S. S/O Devassia; Isaac V.S. S/O Devassia (RFA 361/2009) arising out of O.S. 8 of 2007, Sub Court, Perumbavoor

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **RFA.No.156 OF 2009** **AGAINST THE JUDGMENT & DECREE IN OS 8/2007 DATED 27-06-2008 OF SUB COURT, PERUMBAVOOR** ## **APPELLANT/DEFENDANT:** **GEEMON CHETTIYATTU S/O. CHACKO, AGED YEARS, CHETTIYATTU HOUSE, MATTAKUZHYKARA, THIRUVANIYOOR VILLAGE, MUVATTUPUZHA TALUK.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS/PLAINTIFFS:** **1 GEORGE PILLAI,S/O. DEVASSIA, AGED 60 YEARS, VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT, NOW RESIDING AT HOGVINON PALACE, 11 H NEW ROCHELLE, NEW YORK, U.S.A., REPRESENTED BY THE POWER OF ATTORNEYS. 2 SEBASTIAN V.S., S/O. DEVASSIA AGED 50 YEARS, VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. 3 ISSAC V.S., S/O. DEVASSIA, AGED 54 YEARS VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT.** **R1 BY ADV. SRI.PAUL K.VARGHESE** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2019, ALONG WITH RFA.361/2009, THE COURT ON 29-07-2019 DELIVERED THE FOLLOWING:** RFA.156 & 361/2009 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **RFA.No.361 OF 2009** **AGAINST THE JUDGMENT & DECREE IN OS 8/2007 DATED 27-06-2008 OF SUB COURT, PERUMBAVOOR** ## **APPELLANTS/PLAINTIFFS:** **1 GEORGE PILLAI, S/O. DEVASIA, AGED 50 YEARS, VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILAGE, NOW RESIDING AT HOGVINON PALACE 11, H NEW ROCHELLE, NEW YORK, U.S.A., REPRESENTED BY POWER OF ATTORNEYS. 2 SEBASTIAN V.S. SO. DAVASIA, AGED 40 YEARS, VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. 3 ISSAC V.S., S/O. DAVASIA, AGED 44 YEARS, VARADAKUZHIYIL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTYAM DISTRICT.** **BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENT/DEFENDANT:** **GEEMON CHETTIYETHU, S/O. CHACKO, AGED 24 YEARS, RESIDING AT CHETTIYATHU HOUSE, MATTAKUZHY KARA, THIRUVANIYOOR VILLAGE, MUVATTUPUZHA TALUK.** **R1 BY ADV. DINESH R.SHENOY R1 BY ADV. SRI.EBIN MATHEW R1 BY ADV. SRI.P.ROHIT PREMANANDAN SHENOY** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2019 ALONG WITH RFA.156/2009, THE COURT ON 29-07-2019 DELIVERED THE FOLLOWING:** RFA.156 & 361/2009 3 ## **JUDGMENT** **[ RFA.156/2009, RFA.361/2009 ] Dated this the 29th day of July 2019** These appeals arise out of a judgment and decree in O.S. No. 8 of 2007 dated 27.6.2008 on the file of the Subordinate Court, Perumbavoor. Decree for realization of money was granted in favour of the plaintiffs by the impugned judgment and decree. Challenging the said judgment and decree, the defendant has preferred R.F.A. No. 156 of 2009. R.F.A. No. 361 of 2009 was filed by the plaintiffs for not allowing them to realize interest for the decree amount through out the pendency of the suit. 2. The parties are hereinafter referred to as the plaintiff and the defendants as they are ranked before the trial court. RFA.156 & 361/2009 4 3. The factual matrix leading to the filing of the appeals, briefly stated is, as under : The defendant, who is the son of the first plaintiff's brother-in-law approached him for financial assistance for booking a jeep. In the month of October, 1993 a sum of Rs.10,000/- was paid and then in the month of December, 1995 an amount of Rs.60,000/- was paid to him, as requested. The defendant thereafter borrowed a sum of Rs.5,00,000/- for improving his agriculture land. The amount was paid by way of instalments and Rs.4,80,000/- was paid by May 1995. In the month of March 1997, again a request for an amount of Rs.1,00,000/- was made by the defendant and he agreed to return the total amount of Rs.6,50,000/- as and when demanded by the first plaintiff. When the amount of Rs.1,00,000/- was paid by the first plaintiff through the plaintiffs 2 and 3, a document styled as a promissory note was RFA.156 & 361/2009 5 executed by him. But it was not a promissory note. Still it was taken by the first plaintiff as the signature and thumb impression of the defendant were affixed in the said document. But he failed to return the money and hence the plaintiffs were compelled to approach the court with the suit. 4. The suit was filed by the plaintiff 2 and 3 along with the first plaintiff as the power of attorney holders of the first plaintiff. 5. The defendant filed a written statement inter alia contending that the suit is not maintainable. He denied the allegation that he had borrowed an amount of Rs.70,000/for purchase of a jeep. So also, he denied the allegation that he had received Rs.5,00,000/- or 4,80,000/- for improving his agricultural land. The allegation that he received an amount of Rs.1,00,000/- from the first plaintiff was also denied by him. According to him, as they are relatives, in the RFA.156 & 361/2009 6 3[rd] week of March, 1997, he went to the residence of the third plaintiff and there he was offered with liquor and he was made to write something in a paper. As he was intoxicated he had only a fade and vague memory at the time of execution of the same. But when he regained memory in the morning, he made an enquiry with the third plaintiff about the writing effected by him on the previous day and requested to hand over the same. But the third plaintiff refused and rejected his request and hence, he approached his father to know about the contents of the document. But the third plaintiff did not show the same to the father of the defendant and when the defendant was about to lodge a complaint against him, his grandmother advised him not to prefer a complaint being relatives and thus, no complaint was lodged against him. According to the defendant, the document is an invalid one and got it created, after making him under intoxication and RFA.156 & 361/2009 7 hence the recitals are not binding on him. The first plaintiff who is abroad, whenever visits his native place, used to visit the third plaintiff and they together colluded with the second plaintiff and fabricated the false case against the defendant. So, in short, he contended that he is not liable to pay any amount to the first plaintiff. 6. The court below, after considering the pleadings, framed the necessary issues and proceeded with the trial of the case. PWs 1 to 4 were examined and Exts. A1 to A4 were marked on the side of the plaintiffs. The defendant was examined as DW1 and Ext.B1 was marked on his side. Exts.X1 and X2 were also marked. The court below, after appreciation of the evidence, decreed the suit for a sum of Rs.6,80,000/with interest at the rate of 6% p.a. from the date of the judgment till realization. RFA.156 & 361/2009 8 7. The plea raised by the plaintiffs against the defendant is on the basis of Ext.A2. In the plaint, it has been specifically stated that Ext.A2 is not a promissory note, but it is a letter styled as a promissory note. The second plaintiff as PW1 has deposed that Ext.A2 is an agreement executed by the defendant, agreeing to pay the amount mentioned therein. The defendant has a case that by administering liquor he was put under intoxication at the residence of the third plaintiff and he was forced to write certain things in a paper and on the next day when he realized that some document had been executed by him as directed by the third plaintiff and others, he requested to return the same. But it was not returned to him. Thereafter, they filed the suit raising a false plea against him on the strength of the said document. Before going into the validity of Ext.A2, a close scrutiny and re-appreciation of the entire facts involved in the case is necessitated. It is RFA.156 & 361/2009 9 significant to note that the defendant, at the time of the alleged transaction, was aged only 21 years. He is the son of the brother of the first plaintiff's wife. First plaintiff's wife was working abroad as a nurse and the first plaintiff was also residing with her. After some time, their marital relationship got strained and they severed their marital tie. The defendant has a case that the first plaintiff in order to wreck vengeance on him as he is the relative of his former wife, had falsely filed the suit with the support of the other plaintiffs. 8. Since the suit is one for realization of a sum of Rs.6,50,000/- alleged to have been advanced by the first plaintiff to the defendant, the first and foremost thing to be verified is whether the first plaintiff had advanced so much amount to the defendant as alleged in the suit. In the plaint, it has been specifically stated that the defendant had borrowed a sum of Rs.10,000/- in the month of October, 1993. The exact RFA.156 & 361/2009 10 date of borrowal of the said sum was not specifically mentioned in the suit and no evidence was adduced to show the date of borrowal. The further case of the plaintiffs is that in the month of December, 1993 another sum of Rs.60,000/was borrowed by the defendant. Like the earlier transaction, neither the alleged date of payment of Rs. 60,000/- on the request of the defendant was mentioned in the plaint nor PW1 had spoken about the date specifically before the court. The further case in the plaint was that the defendant had borrowed a sum of Rs.5,00,000/- from the first plaintiff to meet his expenses for the conduct of agricultural operations in his property. According to PW1 the payment was on various dates and by May, 1995 in total an amount of Rs.4,80,000/was paid to the defendant. But the specific dates on which the amounts were advanced to the defendant were not mentioned by the plaintiffs. So in short, the details regarding RFA.156 & 361/2009 11 the payment Rs.5,50,000/- alleged to have been advanced by the plaintiffs to the defendant have not been specifically mentioned in the plaint or spoken to in the evidence. As the first plaintiff was residing abroad and the defendant at his native place, the amount could be given only by way of transferring the said amount directly to the account of the defendant or to the account of the plaintiffs 2 and 3 for handing over the same to the defendant. But specific pleadings are quite lacking in this case regarding those transactions. How much amount had been transferred so as to give the same to the defendant as requested by him, the dates on which the amounts have been transferred or paid to the defendant, were not specifically mentioned in the plaint or spoken to by the witnesses before the court and no supporting documents were produced by the plaintiffs. As per the pleadings, and the evidence adduced by the plaintiffs, the RFA.156 & 361/2009 12 transaction was from the month of October, 1993 till March, 1997. The plaintiffs have produced Ext.A4 series, certain receipts of international money order form in the name of the defendant. PW2, the bank manager of SBT, Thiruvakulam Branch had deposed that during 1994-95 in the account of the defendant certain U.S dollars were transferred through international money order and Rs.3,58,052/- was credited. But those documents are not sufficient to prove the alleged transaction mainly for the reason that the defendant's definite case is that his aunty (father's sister) a nurse working in USA used to send money order to her father and sister through his account as entrusted by them. That will create reasonable doubts regarding the case of the plaintiffs especially in the absence of definite and clear pleadings regarding the alleged payment of Rs.5,50,000/-. Now the question to be looked into is whether Rs.1,00,000/- was paid by the third plaintiff RFA.156 & 361/2009 13 to the defendant on 10.3.1997 as alleged. According to PW3, the third plaintiff, the first plaintiff forwarded a cheque for Rs.1,00,000/- on 9.3.1997 and he encashed it and paid the same to the defendant on 10.3.1997. He relies on Ext A3 pass book which stands in the name of the third plaintiff and his wife Leelamma Isaac, to fortify the said allegation. But it is pertinent to note that as per Ext A3 there is no entry to show that a cheque for Rs 1,00,000/-was encashed on 10.3.1997. Therefore, Ext.A3 will not help the plaintiffs to prove that a cheque of Rs.1,00,000/- was encashed and handed over the amount to the defendant on 10.3.1997. As Ext.A4 series, Exts.X1 and X2 were relied on by the plaintiffs, they are bound to prove each and every corresponding entry with regard to the payment on various dates. In the plaint there was no specific allegation that the amount of Rs.10,000/- was transferred in the month of October, 1993 and Rs.60,000/- in RFA.156 & 361/2009 14 the month of December, 1993 and it was by transfer into the account of the defendant maintained in the State Bank of Travancore, Thiruvamkulam Branch, though Exts.X1 and X2 were produced. Mere marking of a copy of a document showing the bank account of the defendant is not sufficient to show that so much amount was transferred into the account of the defendant from the account of the first plaintiff especially when the defendant had a case that the wife of the first plaintiff used to send money to her sister and mother through the account of the defendant. The defendant being a person having international money transaction, it is not possible to presume that all the amounts which came into his account from a foreign country was forwarded by the first plaintiff. The evidence of PW2, a Bank Official, that on 19.4.1994 an amount of Rs.3,098/- and on 21.4.1994 an amount of Rs.9,298/- came into the account of the defendant RFA.156 & 361/2009 15 is not sufficient to conclude that by December, 1993, in total Rs.70,000/- had been paid by the first plaintiff to the defendant through international money transaction. So also, his evidence that some US dollar for a sum of Rs.3,58,052/was credited in the account of the defendant during 1994- 1995 by the first plaintiff appears to be unbelievable especially when the defendant had a case that his aunt used to send money to her sister and her mother through his account. So the production of these documents and the evidence are not sufficient to presume that money was transferred to the account of the defendant by the first plaintiff especially when there is no specific allegation in the plaint that the amount was transferred through the account of the first plaintiff to the defendant. Lack of pleadings and lack of supporting evidence are definitely fatal to the case of the plaintiffs as the suit was filed for realisation of money. Exts.X1 (savings bank ledger) RFA.156 & 361/2009 16 and X2 series (foreign demand bills purchase register) are not sufficient to prove that cheques were issued by the first plaintiff and money was credited to the account of the defendant and thus the defendant borrowed money from the first plaintiff. So the mere production of Ext.A4 series and Exts.X1 and X2 are not sufficient to establish the case of the plaintiffs. So in short, Exts. A1 to A4 and X 1and X2 will not prove the case put forth by the plaintiffs that the defendant had borrowed money from the 1[st] plaintiff and substantial amount was paid to him through the plaintiffs 2 and 3. 9. According to the plaintiffs, the suit was filed for realization of money mainly on the basis of Ext.A2 document. As stated above, the defendant had vehemently denied execution of such a document undertaking to repay a sum of Rs.6,50,000/-. But according to him, the plaintiffs managed to obtain such a document after taking him to the house of RFA.156 & 361/2009 17 the third plaintiff at Vellikulangara and intoxicated him with alcohol and filed the suit with the said document. His definite case is that he was made to affix his thumb impression in the document apart from his signature in the first sheet, while he was in an inebriated condition under the influence of alcohol. The specific and clear stand taken by him was that with his free will or consent no document was executed by him promising to pay any amount to the plaintiffs. But he did not file any complaint against them because his aunt, i.e., the wife of the first plaintiff and her mother persuaded him not to file a police complaint just because of their relationship. It is well settled that mere production of a document alone is not sufficient to prove its genuineness. A cursory look at the document itself would show that it was not executed by a person having a normal sense. The shaky handwriting, the shabby manner in which RFA.156 & 361/2009 18 it was written and the difference in the signature when compared with the admitted signatures of the defendant etc would compel me to infer that such a document was created while he was under intoxication. His case that he executed something without his free will under intoxication appears to more probable than the case put forth by the plaintiffs. The genuineness of the document is in a shadow of doubt. The mere reference of the survey number of certain properties (it is also not proved that those properties belong to him) is not a strong ground to conclude that the document is a genuine one. When a document is created after intoxicating one with liquor or drugs it is similar as persuading someone to execute it under threat or coercion. Such a document would remain as an invalid one or a concocted document in eye of law. It is also to be noted that even if Ext. A2 is accepted as a valid document, there is no RFA.156 & 361/2009 19 explanation on the side of the plaintiffs as to why they have filed the suit without waiting for the period of two years fixed as per the document. It is also to be noted that no suit notice was issued by the plaintiffs before filing the suit for realization of money. The examination of PW 4, a witness to the said document, does not inspire confidence to conclude that the same is a valid document when evaluated and appreciated with the evidence available on record. 10. It is also to be noted that Ext.A2 is dated 10.3.1997. The plaintiffs' case is that in total Rs.5,50,000/was paid from the year 1993 to 1995. In Ext.A2 there was no reference regarding the dates on which he received money from the first plaintiff. But a general statement was seen made to the effect that from 1994 onwards till 1995 some amount were received by the defendant, but in the plaint it was specifically stated that the transaction started in the year RFA.156 & 361/2009 20 1993. So the sequence of events pointed out by the plaintiffs so as to recover the amount from the defendant are also not tallying with the writings in Ext.A2. When the original transaction goes, it is not possible to presume that Ext.A2 is a genuine document acknowledging the subsisting liability of the defendant towards the plaintiffs and when the execution of the document acknowledging the liability of money is denied by the defendant, it is not possible to presume that it is a genuine document executed by the defendant as alleged. In Velayudhan v. Velayudhan [2001(1) KLT 392] a Division Bench of this Court held as follows: “ 9 . To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person's name and the RFA.156 & 361/2009 21 intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgment that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document.” When the entire evidence is marshelled it could be seen that the plaintiffs have not placed the entire material facts before the court in the correct way and such being the case, the contention raised by the defendant that, when the marital relationship of the 1[st] plaintiff got strained with his wife, he played fraud on the defendant because of his enmity towards his wife, appears to be more probable and correct. It is the well settled principle that one who comes to the court, must come with clean hands. It has been held in S.P. Chengalvaraya RFA.156 & 361/2009 22 Naidu v. Jagannath (AIR 1994 SC 853) that the court of law are meant for imparting justice between the parties and one who comes to the court must come with clean hands. 11. So in short, it is the duty of the plaintiffs to place genuine materials to support their case when a suit is filed for realization of money. The burden of proof is on the plaintiffs who approached the court. The plaintiffs miserably failed to prove that Ext. A2 was properly executed. When the findings of the court below is wrong and unreasonable, I find it difficult to confirm the decree granted in favour of the plaintiffs. 12. Therefore, I am constrained to conclude that the plaintiffs have failed to adduce reliable evidence to establish the factum of the original transaction. Since the plaintiffs have failed to prove the same, the question of limitation does not arise for consideration. Therefore, the RFA.156 & 361/2009 23 finding of the court below that the defendant is liable to pay a sum of Rs.6,50,000/- to the plaintiffs, was without reliable or probable evidence and not in proper perspective, an interference is inevitable. For the reasons mentioned above, the impugned judgment and decree under challenge are set aside, and thus the suit stands dismissed. In the result, R.F.A. No.156 of 2009 is allowed and R.F.A. No.361 of 2009 is dismissed setting aside the judgment and decree under challenge leaving the parties to bear their respective costs. Sd/- SHIRCY V., JUDGE sb