Ibrahimkutty V.K. vs Anil Kumar A and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA,** ## **1943** ## **OP(C) NO. 1974 OF 2021** **IA 10/2021 IN OS 149/2019 OF II ADDITIONAL SUB COURT,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/S:** **ANIL KUMAR A AGED 53 YEARS S/O.APPUKUTTAN NAIR, RESIDING AT "BHAGAVATHY VILASATHU VEEDU", ALATHARAMOODU, KADAKKAL P.O., KOLLAM 691 536** **BY ADVS. G.RAJEEV REJITH RAJENDRAN BINCY JOB AJITH KUMAR.S** ## **RESPONDENT/S:** **IBRAHIMKUTTY V.K. AGED 49 YEARS S/O.KUNJAPPA, RESIDING AT VALIYAVILA, KANJUVAYAL, BHARATHIPURAM P.O., KOLLAM 691 312** **BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, ALONG WITH OP(C) 2005/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OPC Nos.1974 & 2005 of 2021 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA,** ## **1943** ## **OP(C) NO. 2005 OF 2021** **I.A.NO.1814/2019 IN OS 149/2019 OF II ADDITIONAL SUB** ## **COURT, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **ANIL KUMAR A AGED 53 YEARS S/O. APPUKUTTAN NAIR, RESIDING AT BHAGAVATHY VILASATHU VEEDU, ALATHARAMOODU, KADAKKAL P.O., KOLLAM-691536.** **BY ADVS. G.RAJEEV REJITH RAJENDRAN BINCY JOB AJITH KUMAR.S** ## **RESPONDENT/S:** **IBRAHIMKUTTY V.K. AGED 49 YEARS 1 S/O.KUNJAPPA, RESIDING AT VALIYAVILA, KANJUVAYAL, BHARATHIPURAM P.O., KOLLAM-691312. KERALA FINANCIAL CORPORATION VELLAYAMBALAM BRANCH, REPRESENTED BY ITS CHIEF 2 MANAGER (SAJITHA G.NATH), VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010. INDUSIND BANK KESAVADASAPURAM BRANCH, REPRESENTED BY ITS 3 MANAGER, KESAVADASAPURAM, THIRUVANANTHAPURAM 695 004.** OPC Nos.1974 & 2005 of 2021 -3- **BY ADVS. P.B.SUBRAMANYAN SHRI.M.R.VENUGOPAL, SC, KFC P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER DHANYA P.ASHOKAN S. MUHAMMAD ALIKHAN** ## **OTHER PRESENT:** **ADV.LAL K.JOSEPH FOR R3** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, ALONG WITH OP(C) NO.1974/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OPC Nos.1974 & 2005 of 2021 -4- ## **JUDGMENT** Dated this the 12[th] day of November, 2021 The petitioner is the third defendant in O.S.No.149 of 2019 on the files of the IInd Additional Sub Court, Thiruvananthapuram. The averments in the suit filed by the first respondent are as under; By virtue of an agreement dated 19.06.2019, the third defendant had agreed to sell the plaint schedule property to the plaintiff for a consideration of Rs.10 Crores. Out of the sale consideration, Rs.6 Crores was agreed to be paid to discharge the loans availed by the third defendant from the first defendant financial institution and the third defendant bank. The balance amount of Rs.4 Crores was to be paid to the third defendant. In terms of the agreement and towards advance sale consideration, the plaintiff paid an amount of Rs.2 Crores to the OPC Nos.1974 & 2005 of 2021 -5- first defendant and Rs.1.81 Crores to the third defendant. After receipt of the amount, the third defendant retracted from the agreement, compelling the plaintiff to file the suit seeking the following reliefs; “ _(a) A decree for realisation of Rs.1,89,00,000/- (Rupees One Crore and Eighty Nine Lakh only) with interest @ 15% from the 3rd Defendant and his assets._ _(b) A decree for realisation of damages of Rs.10,00,000/- (Rupees Ten Lakh Only) with interest @ 12% from the 3rd Defendant and his assets._ _(c) A mandatory injunction directing the 1st Defendant to refund the Plaint 'A' Schedule amount to the Plaintiff with 12% interest per annum from 15.07.2019 till date of refund._ _(d) A permanent prohibitory injunction restraining the 1st Defendant from acting on the instruction of 3rd Defendant or for his benefit with respect to Plaint 'A' Schedule amounts and not to convert or adjust or transfer the amount in any manner detrimental to the right and interest of the Plaintiff over the same.”_ Along with the plaint, the alleged agreement dated 19.06.2019 is produced as Annexure A1. In his written statement, the third defendant contended that the agreement (Ext.P2) produced along with the plaint is a forgery and that the OPC Nos.1974 & 2005 of 2021 -6- actual agreement entered into between the parties is for a consideration of Rs.18 Crores (Ext.P4). Based on such contention, the third defendant raised a counter claim seeking specific performance of Ext.P4 agreement. The plaintiff filed written statement to the counter claim disputing Ext.P4 and contending that no such agreement was executed. According to the third defendant, the original of Ext.P4 is with the plaintiff and only a photocopy is available with him. The third defendant therefore filed I.A.No.1814 of 2019, requiring the plaintiff to produce the original of Ext.P4 as also the originals of Annexures A8, A10 and A11 documents produced along with the plaint. The plaintiff filed objection reiterating his contention that there is no agreement, as claimed by the third defendant and hence, the question of production of the original of Ext.P4 does not arise. As regards Annexures A10 and A11, it was pointed out OPC Nos.1974 & 2005 of 2021 -7- that the originals have been produced along with the plaint. With respect to Annexure A8, which is a sale deed engrossed in stamp paper worth Rs.32,08,000/ and submitted for registration after paying fees of Rs.8,02,080/-, it was stated that the sale not having taken place, the document was produced before the revenue and registration departments for cancellation and refund of the stamp duty paid. Hence, only notarized copy of the document is produced along with the plaint and the plaintiff is not in a position to produce the original. 2. While so, the third defendant moved this Court in O.P.(C) No.117 of 2021 seeking expeditious disposal of the suit. By judgment dated 08.09.2021, the original petition was disposed of directing the trial court to pass orders on all pending interlocutory applications within one month and to dispose the suit within five months thereafter. After the judgment, the OPC Nos.1974 & 2005 of 2021 -8- third defendant filed I.A No.10 of 2021 praying for an order to send Exts.P2 and P4 agreements along with Annexure A8 referred in the plaint, for comparison and expert opinion to the Forensic Science Laboratory, Thiruvananthapuram. By separate orders dated 18.09.2021, I.A.No.1814 of 2019 seeking production of original documents by the plaintiff and I.A.No.10 of 2021 for sending the agreements for expert opinion were dismissed. O.P.(C) No.1974 of 2021 is filed against the order in I.A.No.10 of 2021 and O.P.(C) No.2005 of 2021 against the order in I.A.No.1814 of 2019. 3. As far as the order in I.A. No.1814 of 2019 is concerned, I find no reason to interfere, the trial court being fully justified in having dismissed the prayer for production of the originals of Ext.P4 and Annexures A8, A10 and A11. With respect to Ext.P4 agreement, the definite stand of the plaintiff is that it is a concocted document created by the petitioner and OPC Nos.1974 & 2005 of 2021 -9- hence, the respondent is not in possession of the original of that document. The fact that the original of Annexure A8 is submitted before the Revenue/Registration Authorities for cancellation and refund of stamp duty is not disputed and the originals of Annexures A10 and A11 have been produced along with the plaint. Being so, the prayer for production of originals of those documents was rightly rejected. 4. Assailing the order in I.A.No.10 of 2021, learned Counsel for the petitioner contended that the dispute essentially being with respect to the genuineness of Exts.P2 and P4 agreements, the trial court committed a gross illegality in refusing to forward those documents for expert opinion, thereby shutting out the best evidence. It is argued that even if the plaintiff's contention of not being in possession of the original of Ext.P4 is accepted, the petitioner can let in secondary evidence by OPC Nos.1974 & 2005 of 2021 -10- producing photocopy of Ext.P4. Moreover, with the advancement of science and technology, it is now possible for handwriting experts to render opinion based even on photocopies of documents. It is contended that no valid legal reason is stated in the impugned for refusing to grant the prayer for sending Annexure A1 to the FSL. It is submitted that remittance of a hefty amount towards court fee by the petitioner itself is indicative of the genuineness of his claim. 5. Learned Counsel for the respondent replied by contending that Annexures A2 to A11 documents substantially proves the execution of Ext.P2 agreement and the cooked up story of Ext.P4 being the real agreement, is only an attempt on the petitioner's part to wriggle out of his liability. It is contended that, this Court having directed expeditious disposal of the suit, the trial court was fully justified in dismissing the unmerited interlocutory OPC Nos.1974 & 2005 of 2021 **==> picture [23 x 8] intentionally omitted <==** applications filed by the petitioner. As regards Ext.P4, it is submitted that being a photocopy, there cannot be any comparison or expert opinion based on that document. Reliance is placed on the judgment of this Court in _**The Good Samartian Charitable Trust v. Samuel and others**_ **(O.P.(C) No.4559 of 2012 - judgment dated 04.01.2013)** and that of the High Court of Andra Pradesh in _**Bheri**_ _**Nageswara Rao v. Mavuri Veerabhadra Rao and others [AIR 2006 AP 314]**_ in support of the proposition. It is argued that even if Section 65 of the Evidence Act permits the parties to adduce secondary evidence, that can only be after satisfying the statutory requirements. The question of comparison would arise only if Ext.P4 falls within the ambit of secondary evidence and is accepted as such by the trial court. Hence, the trial court was fully justified in rejecting the prayer for sending Ext.P4 for comparison. OPC Nos.1974 & 2005 of 2021 -12- 6. As regards the prayer for obtaining expert opinion based on the photocopy of Ext. P4 document, I have no doubt that the expert will not be able to provide any conclusive opinion based on the photocopy and I am in complete agreement with the decisions in _**The Good**_ _**Samartian Charitable Trust** and_ _**Bheri Nageswara**_ _**Rao** (supra)_ Even otherwise, admissibility of the photocopy of Ext.P4, considering it to be secondary evidence, is yet to be decided. On the other hand, the prayer for comparison and expert opinion on Ext.P2 can be allowed, the original being available in the Court. The learned Counsel for the respondent submitted that in the event of Ext.P2 being sent for expert opinion, the originals of Annexure A2, A9, A10 and A11 documents should also be forwarded. The submission is stoutly opposed by the learned Counsel for the petitioner, contending that the OPC Nos.1974 & 2005 of 2021 **==> picture [23 x 9] intentionally omitted <==** petitioner is disputing his signatures in Annexure A9, 10 and 11 documents. I find substance in the objection, since there cannot be comparison of one set of disputed signatures with another set of disputed signatures. At the same time, if either of the parties is able to produce the original of Annexure A8, that can be utilised for the purpose of comparison. The above discussion leads to the following conclusion. O.P.(C)No.2005 of 2021 is dismissed. O.P.(C) No.1974 of 2021 is disposed of, with the following directions; - (i) The original of the sale agreement dated 19.06.2019 (Ext.P2), produced as Annexure A1, shall be forwarded to the Government Forensic Science Laboratory, Thiruvananthapuram for expert opinion on the genuineness of the signatures of the petitioner (Anil Kumar A) affixed in that document. - (ii) The original of Annxure A2 (Consent Deed OPC Nos.1974 & 2005 of 2021 **==> picture [23 x 8] intentionally omitted <==** dated 28.06.2019) shall be produced before the trial court by the first defendant (Kerala Financial Corporation) within two weeks. (iii) On receipt of Annexure A2, the trial court shall forward that document along with the vakalath, written statement and such other contemporaneous documents containing the admitted signatures of the petitioner to the Forensic Science Laboratory. (iv) If the original of Annexure A8 (Sale Deed signed by the petitioner on 16.07.2019) is produced in court within one month, that document can also be forwarded. - (v) All documents for comparison and expert opinion shall be forwarded from the trial court within one month. (vi) This Court having fixed a time limit of six months from 08.09.2021 for disposal of the suit, earnest efforts shall be taken by the FSL to submit the expert opinion at the earliest. OPC Nos.1974 & 2005 of 2021 **==> picture [23 x 9] intentionally omitted <==** For that purpose a copy of this judgment shall be made available to the Director, FSL, Thiruvananthapuram through the District Government Pleader. (vii) The plaintiff having come down to Kerala for the purpose of giving evidence, the trial court is at liberty to complete the examination of the plaintiff. Sd/- ## **V.G.ARUN JUDGE** Scl/ OPC Nos.1974 & 2005 of 2021 -16- ## **APPENDIX OF OP(C) 1974/2021** ## **PETITIONER EXHIBITS** **THE TRUE COPY OF THE PLAINT DT. 25.7.2019 Exhibit P1 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE AGREEMENT DT. Exhibit P2 19.6.2019 PRODUCED BY THE RESPONDENT THE TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER-CLAIM DT. 15.2.2021 ON THE Exhibit P3 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE AGREEMENT DT. Exhibit P4 19.6.2019 PRODUCED BY THE PETITIONER THE TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER-CLAIM DATED 4.3.2021 ON THE Exhibit P5 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF I.A.NO.1814 OF 2019 DT. Exhibit P6 19.8.2019 THE TRUE COPY OF THE OBJECTION TO EXT. P6 Exhibit P7 DT. 11.10.2019 ON THE FILE OF IIADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE JUDGMENT DT. Exhibit P8 8.9.2021 IN O.P.(C) NO.117 OF 2021 OF THIS HON'BLE COURT THE TRUE COPY OF I.A.NO.10 OF 2021 DT. Exhibit P9 11.8.2021 THE TRUE COPY OF OBJECTION TO EXT. P9 DT. Exhibit P10 12.8.2021 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE ORDER DT. 18.9.2021 Exhibit P11 IN I.A.NO.1814 OF 2019 ON THE FILE OF IIADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE ORDER DT. 18.9.2021 Exhibit P12 IN I.A.NO.10 OF 2021 ON THE FILE OF IIADDITIONAL SUB COURT, THIRUVANANTHAPURAM** OPC Nos.1974 & 2005 of 2021 -17- ## **APPENDIX OF OP(C) 2005/2021** ## **PETITIONER EXHIBITS** **Exhibit P1** **Exhibit P2** **Exhibit P3** **Exhibit P4** **Exhibit P5** **Exhibit P6** **THE TRUE COPY OF THE PLAINT DATED 25.7.2019 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **THE TRUE COPY OF THE AGREEMENT DATED 19.6.2019 PRODUCED BY THE RESPONDENT.** **THE TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER-CLAIM DATED 15.2.2021 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **THE TRUE COPY OF THE AGREEMENT DATED 19.6.2019 PRODUCED BY THE PETITIONER.** **THE TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER-CLAIM DATED 4.3.2021 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **THE TRUE COPY OF I.A.NO.1814 OF 2019 DATED 19.8.2019.** **THE TRUE COPY OF THE OBJECTION TO EXT.P6 Exhibit P7 DATED 11.10.2019 ON THE FILE OF IIADDITIONAL SUB COURT, THIRUVANANTHAPURAM. THE TRUE COPY OF THE JUDGMENT DATED Exhibit P8 8.9.2021 IN O.P.(C) NO.117 OF 2021 OF THIS HON'BLE COURT.** **Exhibit P9** **THE TRUE COPY OF I.A.NO.10 OF 2021 DATED 11.8.2021.** **THE TRUE COPY OF OBJECTION TO EXT.P9 Exhibit P10 DATED 12.8.2021 ON THE FILE OF IIADDITIONAL SUB COURT, THIRUVANANTHAPURAM. THE TRUE COPY OF THE ORDER DATED 18.9.2021 IN I.A.NO.1814 OF 2019 ON THE Exhibit P11 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **THE TRUE COPY OF THE ORDER DATED 18.9.2021 IN I.A.NO.10 OF 2021 ON THE Exhibit P12 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.**