# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
**THE HONOURABLE MR.JUSTICE K. BABU**
**TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 RSA NO. 223 OF 2006**
**AGAINST THE DECREE AND JUDGMENT DATED 17.11.2005 IN AS 118/2005 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR AGAINST THE DECREE AND JUDGMENT DATED 24.02.2005 IN OS 402/2002 OF MUNSIFF COURT,ALUVA**
## **APPELLANT/RSPONDENT/PLAINTIFF:**
NADAN KURIES (P) LTD. OF ALUVA TALUK, ALUVA VILLAGE, REP. BY ITS CHAIRMAN, M.L.POULOSE, S/O.LONAN, MANACHERY HOUSE, KOTTAPPURAM KARA. BY ADVS. PKM.HASSAN FIROZ K.ROBIN J.JULIAN XAVIER
## **RESPONDENTS/APPELLANTS/DEFENDANTS:**
1 V.VISWAMBHARAN, S/O.VELAYUDHAN,ASWATHI, PATTERIPPURAM, ALUVA. 2 M.P.SHAJI ,S/O.PRABHAKARAN MATAPPILLY VEEDU, ALUVA. 3 M.T.JOY,(DIED)(RECORDED) S/O.ABATTU THOMAS, ALUVA KARA ALUVA VILLAGE, ALUVA TALUK. (IT IS RECORDED THAT THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT NO.3 NEED NOT BE IMPLEADED AS PARTIES AS HE IS NOT SEEKING ANY RELIEF AGAINST THEM AS PER THE SUBMISSION BY THE COUNSEL FOR THE APPELLANT,VIDE ORDER DATED 04.12.2021.)
BY ADV V.A.PRADEEP KUMAR FOR R1 AND R2
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **K.BABU, J.**
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## R.S.A. No. 223 of 2006
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Dated this the 1[st] day of February, 2022
## **JUDGMENT**
This appeal arises from the judgment of the Additional District Court, North Paravur in A.S.No.118/2005, which arose from the decree and judgment passed by the Munsiff’s Court, Aluva in O.S.No.402/2002. The plaintiff is the appellant. Defendants are the respondents.
2. The plaintiff is a Private Limited Company registered under the Indian Companies Act, having its registered office at Aluva and a branch office in Fareedabad. Plaintiff is engaged in Kuri and Chitty business. Defendant No.1 was one of the subscribers of a Chitty conducted by the plaintiff. He was a successful bidder of the Chitty in the auction dated 15.07.1998. He executed an agreement promising to repay the future instalments with interest in case of default. An amount of Rs.96,800/- is due from the defendants.
3. Defendants resisted the suit. They denied the execution of the agreement as pleaded. According to the
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defendants, they are not bound to pay any amount as claimed by the plaintiff.
4. The parties went to trial. PW1 was examined and Exts. A1 to A8 were marked on the side of the plaintiff. DW1 was examined and Ext.B1 was examined on the side of the defendants.
5. The Trial Court decreed the suit allowing the plaintiff to realize a sum of Rs.96,800/- with future interest.
6. The defendants challenged the decree and judgment of the Trial Court in A.S.No.118/2005 before the First Appellate Court. The First Appellate Court reversed the judgment and decree of the Trial Court and dismissed the Original Suit.
7. After hearing both sides, this Court reformulated the substantial questions of law as follows:-
(a) Whether the Lower Appellate Court is justified in allowing the appeal stating that the plaintiff failed to establish the actual amount due without an issue in that regard framed by the Trial Court.
(b) Whether the Lower Appellate Court is justified in discarding Ext.A1 agreement in the matter of liability of the defendants without finding that it is not legally
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enforceable.
(c) Whether the Lower Appellate Court erred in allowing the appeal filed by the defendants and dismissing the suit without remanding the matter to the Trial court to frame an issue and to take evidence with regard to the extent of liability of the defendants, if it is not convinced by the evidence especially when no issue was framed by the Trial Court in that regard.
(d) Whether the Lower Appellate Court is justified in allowing the appeal by dismissing the suit when Exts.A1 to A7 and pleadings in the suit are not controverted by the defendants.
(e) Has the First Appellate Court drawn the necessary inferences and presumptions that would apply on the facts and circumstances of the case?
8. Heard Shri. Julian Xavier, the learned counsel appearing for the appellant/plaintiff and Sri. Pradeep Kumar, the learned counsel appearing for the respondents/defendants.
9. The learned counsel for the appellant/plaintiff contended that the oral evidence of the plaintiff corroborated by Exts. A1 to A7 was sufficient enough to establish the liability of the defendants towards the plaintiff. The learned counsel
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contended that in view of Ext.A1 agreement, the finding of the First Appellate Court that the plaintiff failed to establish the actual amount due from the defendants cannot be sustained. The learned counsel further contended that the First Appellate Court ought to have granted an opportunity to produce the relevant documents to establish the liability of the defendants towards the plaintiff by remanding the matter to the Trial court.
10. _Per contra,_ the learned counsel for the respondents/defendants contended that the burden is on the plaintiff to establish the liability of the defendants towards the plaintiff.
11. The plaintiff is a Private Limited Company registered under the Indian Companies Act, engaged in Chitty and Kuri business. Admittedly, defendant No.1 was one of the subscribers of a Chitty conducted by the plaintiff. In the auction conducted on 15.07.1998, defendant No.1 came out as a successful bidder, and he executed Ext.A1 agreement in favour of the plaintiff and received a sum of Rs.46,500/- as prize money as per Ext.A2 receipt.
12. The case of the plaintiff is that a sum of Rs.96,800/- is due from the defendants. Plaintiff relied on Exts.A1 to A8 to
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establish his contentions. Ext.A1 is an agreement executed by the defendants in favour of the plaintiff, showing the details of monthly instalments to be paid by defendant No.1. Ext.A2 is a receipt stated to have been issued by DW1 showing that he had received a sum of Rs.46,500/-. Ext.A3 is a guarantee agreement. Ext.A4 is the copy of the Lawyer's notice caused to be issued by the plaintiff. Exts.A5 and A6 are the letters issued by the defendants to the plaintiff company. Ext.A7 is the memorandum and Articles of Association of Plaintiff Company. Ext.A8 is a resolution dated 04.08.1999.
13. The Trial Court relying on Exts.A1 to A8 found that the defendants are liable to pay a sum of Rs.96,800/- with future interest to the plaintiff.
14. The First Appellate Court found that Exts.A1 to A8 would not show the actual amount due to the plaintiff from the defendants. The First Appellate Court took note of the fact that the accounts maintained by the plaintiff showing the actual amount due to the plaintiff had not been produced before the Court. On the relevance of Ext.A1, the First Appellate Court recorded that it is only an undertaking to pay an amount of Rs.96,800/- as instalments and at any rate, it cannot be treated
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as a liability as pleaded by the plaintiff in the plaint.
15. Ext.A1 would show that out of the total Chitty amount of Rs.1,20,000/- after deducting a sum of Rs.73,500/- a sum of Rs.46,500/- was given to the defendants. The First Appellate Court held that, even if the entire contents in Ext.A1 is accepted, that would not establish the actual amount due from the defendants without producing the accounts, variyola and other relevant documents showing the payment of instalments, and the default thereof, and the interest, if any, charged on the defaulted amount.
16. Going by the pleadings in the plaint, it is seen that the plaintiff set up a case that the defendants paid only the instalments due to the plaintiff till June 1999, and the defendants have not paid the further instalments. Therefore, the actual amount paid by the defendants as instalments and the balance amount due to the plaintiff must have been recorded in the relevant books of accounts maintained by the plaintiff firm.
17. It is pertinent to note that Exts.A1 to A7 produced by the plaintiff would not, at any rate, bring out the actual amount due from the defendants. Ext.A1 agreement cannot be treated as a document showing the actual liability of the defendants to the
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plaintiff firm. After appreciating the relevant materials, the First Appellate Court recorded the finding that the plaintiff failed to put the exact amount due to the plaintiff from the defendants before the Court. It cannot be said that the First Appellate Court committed any illegality in recording the finding that the plaintiff failed to prove the liability of the defendants towards the plaintiff by way of producing the relevant accounts maintained by it. The First Appellate Court had drawn the necessary inference and presumptions that would apply on the facts and circumstances of this case. The finding of facts recorded by the First Appellate Court, requires no interference.
18. The learned counsel for the appellant/plaintiff prayed for remanding the matter to the Trial Court for availing an opportunity to lead evidence that would establish the defendants' actual liability to the plaintiff.
19 **.** In **Shankararamiah. A v. M.S.Lakshminarayanamoorthi**
**and others [2016 (5) KHC 87],** the Apex Court held that the power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the Court of first instance have
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failed to do so. A trial _de novo_ , after setting aside a final order passed by the Court of first instance may therefore be made in exceptional circumstances, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court.
This Court is not satisfied that there has been no proper trial, no complete or effectual adjudication of the proceedings. The plaintiff failed to establish any grounds for _de novo_ trial. This Court finds no reason to remand the matter. The substantial questions of law are accordingly answered against the appellant. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs.
**Sd/K.BABU**
**JUDGE**
VPK
