## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941**
**RFA.No.379 of 2016**
**AGAINST THE JUDGMENT IN OS 1943/2012 of II ADDITIONAL SUB COURT,THRISSUR DATED 01-12-2015**
## **APPELLANT/PLAINTIFF:**
**M/S CHILANKA CHITTIES & LOANS PVT. LTD., THIRUVONAM BUILDING, THRISSUR DESOM, VILLAGE, TALUK, REP. BY ITS CHAIRMAN T.A.JOSE, AGED 65 YEARS, THAZHARTH HOUSE, PONNUKKARA DESOM, PUTHUR VILLAGE, THRISSUR TALUK & DISTRICT, PIN 680 014.**
**BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)**
## **RESPONDENT/DEFENDANT:**
**VIJAYALAKSHMI SUSHIL, AGED 45 YEARS, W/O.SUSHILKUMAR MARATTU, RESIDING AT MARATTU HOUSE, PERINGAVU DESOM, VILLAGE, THRISUR TALUK 680 018.**
**BY ADVS. SRI.C.CHANDRASEKHARAN SRI.M.UNNIKRISHNA MENON**
**THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON 13.06.2019 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
This appeal is filed by the appellant/plaintiff against the judgment and decree in O.S. No.1943 of 2012 on the file of the 11 Additional Sub Court, Thrissur. The suit filed for realization of money from the respondent/defendant was dismissed by the judgment and decree dated 1[st] December, 2015. Challenge is with respect to the said judgment and decree.
2. Briefly ,the facts of the case are as follows:
The plaint schedule property are two rooms constructed by the Kerala State Film Development Corporation (hereinafter referred to as 'KSFDC'). The possession of the rooms were handed over to the defendant on receipt of full payment of consideration by KSFDC but sale deed was not executed. Thereafter, the defendant agreed to sell the rooms to the plaintiff for a total sale consideration of Rs.20,00,000/-. An agreement for sale was executed on 20.8.2007. An advance amount of Rs.15,00,000/- was also paid towards the sale
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consideration. The time fixed for execution of the sale deed was 11 months. Thereafter, the period was extended for six months from 18.8.2010. Though, the plaintiff was ready and willing to perform his part of the contract, the same was not materialized due to the default committed by the defendant. When the defendant tried to alienate the property, a suit for injunction was filed by the plaintiff as O.S. No. 483 of 2012 before the Munsiff's Court, Thrissur. Later, it was realized that the defendant had no right over the plaint schedule rooms. Hence, the suit for return of the advance amount with interest.
3. The defendant filed the written statement contending that the husband of the defendant was the Chairman of the plaintiff Company for about 25 years. While so, the Company had purchased 8 1/2 cents of land at Thrissur with the share amount collected from the shareholders. The husband of the defendant had deposited a sum of Rs.5,00,000/- as his share. Later, the Company deviated from its original business and started money lending business without licence and some other illegal
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business transactions. So, there arose some difference of opinion between the husband of the defendant and the Company and he resigned from the Company. During 19992000, the defendant had availed a loan from KFC and invested a sum of Rs. 42,40,000/- by purchasing the two rooms from KSFDC. Now the plaintiff, in order to misappropriate the said amount had forged documents utilizing certain papers which were kept in the Company and filed this case raising false complaints in order to harass the defendant and his family. So, in fact there was no transaction as alleged between the parties.
4. The court below raised necessary issues and marked Exts. A1 to A12 on the side of the plaintiff. The Chairman of the Company was examined as PW1. On the side of the defendant, the husband of the defendant was examined as DW1 and Exts.B1 to B7 were marked. On appreciation of evidence, the court below held that there was no satisfactory evidence to prove the case of the plaintiff and on the said finding dismissed the suit.
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5. Heard Shri. P.B. Krishnan, learned counsel for the appellant and Shri. C. Chandrasekharan, the learned counsel for the respondent.
6. The suit was filed by the plaintiff for realization of an amount of Rs.15,00,000/- from the defendant on the basis of an agreement alleged to have been executed on 20.8.2007. At the outset, it is to be noted that the said agreement was not produced and marked in the case. But what is marked as Ext. A1 is only a copy of an agreement dated 20.8.2007. According to the plaintiff, the said agreement was executed for purchase of two rooms for a total sale consideration of Rs. 20,00,000/- and out of the same Rs.15,00,000/- was paid as advance. But when the plaintiff was cross-examined before the court below, it was revealed that there was variance to the transaction alleged in the plaint with what, PW 1 had deposed before the court. According to PW1 Rs.10,00,000/- had been received as cash on the date of agreement and an amount of Rs.5,00,000/- previously deposited by the husband of the
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defendant was adjusted towards the consideration of the sale agreement. At the outset, it is to be noted that, the allegation of the plaintiff was that though the agreement was executed, the defendant was not holding title over the subject matter of the two rooms. The two rooms were admittedly constructed by the KSFDC but the defendant had no title over the rooms.
7. It is significant to note that the defendant's definite case is that the plaintiff had forged a document and filed a false case so as to extract money from him. Even though the defendant had denied the execution of an agreement for sale dated 20.8.2007, the plaintiff failed to produce the original sale agreement alleged to have been executed before the court and substantiate his case that such a document was executed by the defendant. It is well settled that when a party relies on a particular document for his case, and when execution of the same is denied, the burden is upon the party who had approached the court for a decree on the basis of the same, to prove it by adducing reliable and cogent evidence. Here, it is interesting to note that
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though the defendant had raised such a contention, the original agreement that could shed light to the transaction if any, was not produced by the plaintiff and there was no attempt on the side of the plaintiff to prove that the document was a genuine one executed by defendant to be acted upon. When there was complete denial of the execution of the agreement the plaintiff who wants to get a relief on the basis of the said document can succeed only on proving its execution. So, the non-production or withholding of the original document at the inception of the suit by the plaintiff is definitely fatal to the case of the plaintiff. In **Gopal Krishnaji Ketkar** v. **Mohamed Haji Latif** (AIR1968 SC 1413), the Apex Court held as follows:
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
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8. So also, it is to be noted that, in the plaint the pleadings are different when compared with the evidence adduced by the plaintiff. The plaint has been drafted in such a way that an amount of Rs.15,00,000/- was paid by the plaintiff to the defendant as advance. But as PW1, he had deposed that the payment was only Rs.10,00,000/- and Rs.5,00,000/- in the deposit made by the husband of the defendant while he was employed in the company was adjusted towards the sale consideration. So, it could be seen that pleadings made by the plaintiff in the plaint filed for realization of an amount of Rs. 15,00,000/- does not reflect the evidence let in by the party. Pleadings of parties being foundation of the case a new or different case cannot be set up by the plaintiff in evidence. It is well settled that all necessary and material facts are to be pleaded by the party in support of the case set up by it. Moreover, the alleged deposit was of the husband of the defendant and not of the defendant. How the said amount could be adjusted in a transaction by the defendant was not satisfactorily explained especially when the execution was denied.
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9. A perusal of Ext. A1 would show that one Sushil Kumar Maratt was cited as a witness to the agreement. He was not examined by the plaintiff even though the execution of Ext.A1 was denied by the defendant. It has also come out in evidence that the plaintiff had a case that the decision for purchase of the rooms from the defendant was made by the Company as per a resolution taken by the Company and it was recorded in the minutes. But those documents were not produced by the plaintiff to establish that after deliberations a resolution to purchase the property from the defendant was made by the company and pursuant to the same, the so called agreement was executed. So also according to PW1 payment of the advance amount was entered in the account books maintained by the Company. If there were entries in the account books maintained by the Company, definitely the Company could substantiate the same by producing the relevant documents. If the share amount of a shareholder was adjusted towards payment of an advance amount for purchase of a property by the company definitely it would
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be entered in the minutes of the company. However ,those documents which would throw light in the controversy were also not produced and hence an adverse inference could be drawn against the plaintiff. Most importantly, it is to be noted that PW1 had deposed before the court that the husband of the defendant who was an employee of the company had stealthily removed all the records pertaining to the purchase of the rooms. But there was no attempt on the side of the plaintiff to bring those documents before the court to substantiate the case that the documents were removed by the defendant's husband so as to deviate from the terms of the agreement or decline from performing her part of contract. The plaintiff has not produced any material to show that such an incident happened in his office. It is well settled that a party who is seeking the relief has to plead and substantiate its' case before court. But here, the pleadings were lacking and the evidence were also lacking in abundance.
10. A reading of the suit notice would reveal that time was the essence of the contract. The alleged execution
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of the agreement was on 20.8.2007. As the time fixed was eleven months, the said period will be over by 19.7.2008. But according to the plaintiff, the defendant had extended the period for execution of the document for a further period of six months on 18.8.2010 and the same was endorsed on the reverse side of the agreement.
11. The suit was filed on 1.12.2012 on the basis of the alleged endorsement made on 18.8.2010 on the reverse side of Ext.A1, extending the period up to six months. As per Ext. A1, the time expired on 19.7.2008. But, the endorsement was on 18.8.2010 much after the period fixed for performance. It is significant to note that like the denial of Ext.A1 agreement, this endorsement dated 18.8.2010 was also vehemently denied by the defendant. Even if the agreement is considered as a valid one as the endorsement was on 18.8.2010 the suit filed on 1.12.2012 for realization of money is barred by limitation.
12. The defendant, in order to establish her case that Ext.A1 as well the endorsement alleged to have been effected are forged documents, as the value of the two shop
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rooms involved itself was much higher than the price shown in Ext.A1, contended that she had availed loan from KFC during 1999-2000 for payment of sale consideration of Rs.42,40,000/- to KSFDC for purchase of the shop rooms, and on failure to get the deed executed, approached this Court with W.P.(C)No.17595 of 2010 for a direction to KSFDC to execute document of sale and obtained a favourable order. The said order was challenged before the Division Bench in W.A. 1538 of 2010 and before the Honourable Supreme Court by fling Special Leave Petition (Civil) 10738 of 2012. In the writ petition before this Court, the defendant had obtained a favourable order directing the KSFDC to execute sale deed in favour of the defendant as an amount Rs.42,40,000/- was received as sale consideration. Exts.B4 and B5 would show that before the Supreme Court the matter was settled between the parties and a settlement agreement was executed incorporating the terms and conditions of settlement. The Apex Court accepted the settlement agreement and disposed of the appeal setting aside the order of this Court and thereby the
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writ appeal was closed. On a perusal of the settlement agreement attached along with the order it could be seen that the total sale consideration of the rooms involved in the case was Rs.42,40,000/- and the said transaction had taken effect much early in the year 1999-2000. Such being the scenario, the argument advanced by the defendant was that there was absolutely no possibility of entering into an agreement with the plaintiff on 20.8.2007 for sale of the two shop rooms for a meager amount of Rs.20,00,000/-. A perusal of these documents would definitely probablise the case of the defendant that the claim put forth by the plaintiff was on the basis of the forged document, created misusing the stamp papers that happened to be in the hands of the plaintiff somehow or other while the husband of the defendant worked as the Chairman of the plaintiff Company. DW1 had deposed that while her husband was working in the Company, some documents were left in the office and he could not take back those documents when he left the Company. So, the possibility of fabrication and manipulation of those documents as contended by the defendant appears
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to be more probable in the light of Exts.B4 and B5, the earlier cases which reached up to the Apex Court between the defendant and the KSFDC.
13. On a meticulous evaluation of the entire evidence available on record, I find that the plaintiff could not make out a case so as to get a decree for return of money on the basis of Ext.A1 agreement. Therefore, no interference is warranted in the judgment and decree under challenge and the appeal is only to be dismissed.
Dismissed. Parties shall bear their respective costs.
Sd/-
SHIRCY V JUDGE
sb
