**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE A.HARIPRASAD**
**MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940**
**RSA.No. 936 of 2003**
**AGAINST THE JUDGMENT & DECREE DATED 28-02-2003 IN AS 41/2002 of ADDITIONAL DISTRICT COURT, VADAKARA**
**AGAINST THE JUDGMENT & DECREE DATED 28.7.1997 IN OS 73/1996 of MUNSIFF COURT, VADAKARA**
## **APPELLANT/RESPONDENT/DEFENDANT**
**SANTHA D/O. KANARAN, AGED 45 YEARS, RESIDING AT KOORMAN KANDITHAZHAKUMIYIL (H), (P.O.) NADAKKUTHAZHA**
**BY ADVS.SRI.C.VATHSALAN SMT.THUSHARA.V**
## **RESPONDENT/APPELLANT/PLAINTIFF**
**URALATH KUNHOYI, S/O.KELAPPAN, AGED 60 YEARS, VANMUGAM AMSOM, ELAMBILAD DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT**
**BY ADVS. SRI.B.KRISHNAN**
**SRI.R.PARTHASARATHY**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **A. HARIPRASAD, J.**
## **------------------------------R.S.A.No.936 of 2003**
## **---------------------------------------------Dated this the 2[nd] day of April, 2018**
## **JUDGMENT**
Heard the learned counsel for the appellant/defendant and the respondent/plaintiff.
2. Appellant is the defendant in O.S.No.73 of 1996 on the file of the Court of Munsiff, Vatakara. Suit is one for specific performance of Ext.A1 agreement executed by the appellant in favour of the respondent. From the pleadings, it will be evident that there is no denial of execution of Ext.A1 raised by the appellant. However, the appellant raised a contention that the real transaction between the appellant and respondent was not an agreement to assign property belonging to the former, but only a monitory transaction. In fact, the appellant had borrowed Rs.40,000/- from the respondent for effecting repairs to her son's lorry. To secure the amount of Rs.40,000/- borrowed by the appellant from the respondent, Ext.A1 was executed, is the contention raised by the appellant. Per contra, learned counsel for the respondent would contend that Ext.A1 is an agreement to
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assign the property and no debtor-creditor relationship existed between the parties.
3. The trial court, after considering the testimony of DW-1 & DW-2 and Exts.A1 to A5 & B1, dismissed the suit. The respondent went in appeal before the Additional District Judge, Vatakara with A.S.No.41 of 2002. The Additional District Judge, after considering the rival contentions and re-appreciating the evidence, allowed the appeal partly. The appellant was directed to return Rs.40,000/- with 12% interest to the respondent and also the cost of the proceedings. Felt aggrieved, the appellant has come up in appeal.
4. The substantial questions of law raised are as follows:
1. Is the lower appellate court justified in reversing the decree and judgment of the trial court by holding that the trial court in Para 17 held that there is no basis in the argument of the defendant that the liability was discharged where as the said statement in Para 17 of the trial court judgment is only the statement of the contention of the plaintiff. Infact the lower appellate court did not consider the reasoning of the trial court in Para 21 & 22 of its judgment.
2. Is not the onus shifts on the plaintiff to prove
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that there is no discharge when the burden on the defendant was discharged by examining and adducing evidence to prove the plea of discharge ?
3. Is not the lower appellate court bound by the ratio laid down by the Hon'ble Supreme Court in the case law reported as AIR 1999 SC 1441. So as to draw an adverse inference against the plaintiff so as to told that the plea of discharge is fully proved by the defendant ?
5. Learned counsel for the appellant strongly contended that the lower appellate court committed a grave error in decreeing the suit partly. It is to be noticed that during the hearing of the appeal, learned counsel for the respondent submitted that the claim for specific performance was not pressed and he needed only to get Rs.40,000/- back with interest from the appellant. Therefore, the lower appellate court considered only the claim of the appellant that she had discharged the liability by paying off Rs.60,000/- to the respondent towards the principal amount and interest. What is to be considered here is the correctness of the finding of the lower appellate court in this regard.
6. Learned counsel for the appellant contended that the
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court below erred in disbelieving the testimony of DW-1 on finding that the appellant did not mount the box. Relying on Section 120 of the Evidence Act, learned counsel for the appellant contended that in all civil proceedings, the parties to the suit and the husband or wife of any of the party to the suit shall be a competent witness. This proposition of law enunciated in Section 120 of the Evidence Act was not considered by the court below. This argument is tenable and therefore, I accept it. Testimony of DW-1 on behalf of the appellant would have been sufficient, had he deposed in accordance with the contentions raised in the written statement filed by the appellant.
7. Second contention raised by the learned counsel is that Ext.B1 was disbelieved by the lower appellate court on the ground that there is incongruity between the dates of issue of stamp from the Sub Treasury and the sale of stamp by the vendor. From the face of Ext.B1, it can be seen that the stamp paper was issued by the Sub Treasury, Vatakara, on 21.10.1993. Ext.B1 is written up on three stamp papers, each worth Rs.7/-. All the three stamp papers were issued from the Sub Treasury on 21.10.1993. However, on the reverse side of all the three stamp papers, the stamp vendor, as per Rule 43 of the Kerala
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Manufacture and Sale of Stamp Rules, 1960, had made endorsements regarding serial numbers and date of sale of stamp as 27.10.1991. Learned counsel for the appellant contended that since the date of issue of stamp papers from the Sub Treasury and sale of the same by the stamp vendor do not agree with one another, the lower appellate court ought to have seen that the endorsement made by the stamp vendor, regarding date of sale, could only be a mistake. In other words, the stamp paper which was issued only on 21.10.1993 could not have been sold by the stamp vendor on 27.1.1991. The lower appellate court discarded Ext.B1 solely on this ground. Ext.B1 is an agreement executed between the appellant's son and DW-2 regarding the sale of a lorry, which belonged to the appellant's son. Admittedly, the respondent is not a party to Ext.B1. From the terms and conditions stipulated in Ext.B1, it can be seen that at the time when the appellant's son's lorry was sold to DW-2, Rs.60,000/- was allowed to be retained by DW-2 for discharging the liability of the appellant towards the respondent. It is true that there are inconsistencies regarding the dates of sale of stamps for Ext.B1 and actual issue of stamp from the Sub Treasury. Even if Ext.B1 is accepted, that will not improve the
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case of the appellant to show that she had discharged the liability outstanding towards the respondent. Therefore, whether Ext.B1 is genuine or not may not be a pertinent issue for deciding the substantial questions of law involved in this case.
8. Learned counsel for the appellant contended that the lower court did not attach importance to the fact that the respondent did not mount the box and attempt to prove his case. Relying on **Vidhyadhar v. Mankikrao [1999 AIR SC 1441]** , it is contended by the learned counsel for the appellant that the lower appellate court should have drawn adverse inference against the respondent for not mounting the box and proving the averments in the plaint. It is true that a civil case has to be decided on preponderance of probabilities. For assessing preponderance of probabilities, certainly there must be at least a minimum of two versions. However, the testimony of DW-1 regarding the plea of discharge is thoroughly unsatisfactory. In cross-examination, he had bungled and did not adduce any credible evidence to infer that the liability incurred by the appellant as per Ext.A1 had been discharged as stated in Ext.B1.
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It has to be remembered that although Exts.A1 and B1 were purported to have been executed on the same day, namely, 27.10.1993, DW-1 did not remember whether they were actually executed on the same day. DW-2, though was examined to prove discharge of the liability towards the respondent, did not adduce
any material to show that he had paid Rs.60,000/- for discharging the liability of the appellant. That apart, learned counsel for the respondent contended that production of Exts.A3 to A5 (the anterior title deeds in respect of the property owned by the appellant) by the respondent would indicate that even at the time of suit, the liability was outstanding. If it had been discharged, the appellant would have taken back the original title deeds relating to the property. Except the ipse dixit of DW-1, there is no material to prove the discharge, which is the only cardinal issue surviving for consideration in this case. Merely for the reason that the respondent did not mount the box and testify, this Court cannot accept the case of the appellant in the absence of any plea of discharge, especially when the execution of Ext.A1 agreement is admitted and the liability to pay money to the respondent remains unchallenged.
9. After hearing the learned counsel on both sides and
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on perusal of the materials, I find no reason to defer from the view taken by the lower appellate court regarding the fact that the appellant was bound to pay Rs.40,000/- with a reasonable interest to the respondent.
10. The court below had granted 12% interest for Rs.40,000/- from the date of suit till realisation. Admittedly, this is not a commercial transaction. Having regard to the nature of transaction, I find that fixation of 12% interest is exorbitant. The substantial questions of law are found against the appellant.
In the result, the appeal is partly allowed. The appellant shall return Rs.40,000/- with 6% interest from the date of suit till realisation. The grant of cost to the respondent from the first appellate stage is hereby confirmed.
All pending interlocutory applications will stand dismissed.
JV
Sd/- **A. HARIPRASAD JUDGE**
