T. Gangadharan Nambiar & Geetha Gangadharan Nambiar v. T.K. Devaki, T.K. Vimala, T.K. Devadas, T.K. Shobana, T.K. Sreesan and T.K. Sreeja (RFA No.681 of 2008)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **RFA.No.681 of 2008** **AGAINST THE JUDGMENT IN OS 142/1997 of ADDITIONAL SUB COURT, THALASSERY DATED 19-10-2007** ## **APPELLANTS/DEFENDANTS:** **1 T.GANGADHARAN NAMBIAR S/O.KRISHNAN NAMBIAR, AGED 61 YEARS, ASSISTANT LECTURER, TEXTILE TECHNOLOGY, GOVERNMENT POLY TECHNIQUE, KANNUR-1, RESIDING AT STAFF QUARTERS, POLY TECHNIC COMPOUND, P.O. THOTTADA, KANNUR DISTRICT. 2 MRS.GEETHA GANGADHARAN NAMBIAR, W/O.T.GANGADHARAN NAMBIAR, AGED 52 YEARS, RESIDING AT -DO BY ADVS. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL** ## **RESPONDENTS/SUPPLEMENTARY PLAINTIFFS:** |**1**|**T.K.DEVAKI,**| |---|---| ||**W/O.K.M.KRISHAN, AGED 80 YEARS,**| ||**RESIDING AT T.K.HOUSE, CHEMBILODE AMSOM,**| ||**KOYYODE DESOM, P.O. KOYYODE, KANNUR.**| |**2**|**T.K.VIMALA,**| ||**D/O.K.M.KRISHAN, AGED 61 YEARS,**| ||**NURSING ASSISTANT, RESIDING AT -DO-**| |**3**|**T.K.DEVADAS**| ||**S/O.K.M.KRISHAN, AGED 57 YEARS,**| ||**SPINNER, RESIDING AT -DO-**| |**4**|**T.K.SHOBANA**| ||**D/O.K.M.KRISHAN, AGED 55 YEARS,**| ||**RESIDING AT -DO-**| RFA.681/2008 2 **5 T.K.SREESAN S/O.K.M.KRISHAN, AGED 52 YEARS, AGRICULTURIST, RESIDING AT -DO6 T.K.SREEJA, D/O.K.M.KRISHAN, AGED 42 YEARS, RESIDING AT -DO-** **BY ADVS. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.681/2008 3 ## **JUDGMENT** The defendants in O.S. No. 142 of 1997 on the file of Sub Court, Thalassery are the appellants. The suit was filed for realization of money by the respondents/plaintiffs. The said suit was decreed by the judgment and decree dated 19.10.2007. The said verdict is under challenge. 2. The parties are referred to as the 'plaintiffs' and the 'defendants'. 3. Briefly stated the facts of the case are as follows: The original plaintiff was conducting a travel agency under the name and style 'Neelima Tours and Travels' at Kannur. He was running the said travel agency RFA.681/2008 4 right from 12.9.1991. The first defendant, a friend approached him along with one Gangadharan Nair and requested him to allow the second defendant to deal with Visa business as he ( the first defendant ) was a Government servant. The said proposal was accepted by the plaintiff and he started collecting money from job seekers with the help of Gangadharan Nair, the friend of the first defendant. While so, suddenly the plaintiff fell ill and he was admitted in Kasthoorba Medical College Hospital, Manipal for treatment. His health condition deteriorated and he realized that he could not run the business. So, when the first defendant visited him at the hospital, he expressed his desire to run the business and thus the proposal was accepted by the plaintiff and the business was transferred to the first respondent on an understanding that when the plaintiff regains health, it will be re-transferred to him. At RFA.681/2008 5 that time, the plaintiff who was in financial difficulty received an amount of Rs.5,000/- from the first defendant. After some time, his health condition improved and when he was discharged from the hospital he approached the first defendant with a request to hand over the business to him. Though, he made several requests, the first defendant evaded the same. Later, it was learnt that, the first defendant had handed over the room to a stranger for a consideration of Rs.2,65,000/- without the consent and knowledge of the plaintiff. So, he again approached the first defendant and then it was promised by the defendants that they will pay a sum of Rs.1,65,000/-. But the said amount was also not paid by the defendants and hence the suit for realization of the said amount. 4. The defendants denied the claim of the plaintiff and contended that, the business run by the RFA.681/2008 6 plaintiff was transferred in favour of the second defendant as per a contract dated 21.12.1993 after receiving a consideration of Rs.30,000/- from the second defendant. It was also contended that, as the plaintiff had collected money from various persons who approached him for visa, an amount of Rs.1,57,000/- was liable to be paid by the plaintiff. The first defendant had paid the said amount to the persons who approached him and the consideration for the transfer of the business was after adjusting the said amount also. The plaintiff had also received an amount of Rs.5,000/- from the first defendant and that was also not returned. 5. It is further contended that the second defendant had every right to transfer the travel agency to anyone she likes and in fact it was transferred to one Mariyam for a valuable consideration of Rs.1,00,000/-. The RFA.681/2008 7 second defendant incurred a loss of Rs.5,000/- as the telephone connection was not transferred by the plaintiff. In fact the plaintiff had to repay a sum of Rs.1,32,000/plus Rs.5,000/- received by him and Rs.5,000/- incurred as loss due to the non-transfer of the telephone. But, the first defendant is not pressing for an amount of Rs.1,32,000/due to him. However, the plaintiff is liable to pay Rs.10,000/- with interest. 6. During the pendency of the suit, the original plaintiff expired and his legal representatives were impleaded as additional plaintiffs 2 to 7. Before the court below, on the side of the plaintiff PW 1 was examined and Exts. A1 to A9 were marked. No oral evidence was adduced by the defendants. But Ext.B1 to B8 were marked. 7. The court below on appreciation of the evidence adduced, decreed the suit for Rs.1,60,200/- with RFA.681/2008 8 18% interest from 19.7.1997 till realization. 8. Heard the learned counsel Sri. P.M. Pareeth appearing for the appellants/defendants and Sri. M.V. Amaresan appearing for the respondents/plaintiffs. 9. Admittedly, the plaintiff was conducting a travel agency by name and style 'Neelima Tours and Travels' at Kannur from 12.9.1991. According to the plaintiff, while he was running the business, the first defendant who was a Government employee approached him with a request to allow him to deal with the business of visa transaction. The plaintiff has accepted the proposal and thus he has collected money from some job aspirants who approached him. It is not in dispute that while the business was going on smoothly, he suddenly fell ill and was admitted in Kasthoorba Medical College Hospital, Manipal for treatment. According to the plaintiff, while so, the first defendant RFA.681/2008 9 approached him and on the basis of some understanding between the parties, the plaintiff agreed to transfer his business to the defendants more precisely in favour of the second defendant who is the wife of the first defendant and it was also agreed by the defendants that, they will return the business concern to the plaintiff when he regains health to run the business. From the pleadings it is further revealed that though there was such an understanding between the parties, that defendants refused to return the business as agreed by them. Since his request was declined by the defendants, he again approached them and then there was some understanding between them and finally the first defendant agreed to pay a sum of Rs.1,65,000/- as the consideration for the said business and the business will be run by the defendants. The plaintiff agreed for the same. But, in spite of repeated demands the defendants RFA.681/2008 10 did not pay the amount as agreed by them. It is pertinent to note that the defendants in their written statement in paragraph No. 3 had specifically admitted that the travel agency run by the plaintiff was transferred with all of his furniture and telephone to the second defendant. It was under a contract dated 21.12.1993 after receiving valuable consideration of Rs.30,000/- from the second defendant. It was also specifically contended in the written statement that at that time the consideration for the transfer was so fixed on account of the loss incurred by the first defendant in repaying money to the job seekers who paid to secure some job. It is also pertinent to note that the defendants had repaid a sum of Rs.1,57,000/- which the plaintiff had collected from job seekers and that amount was also accounted as the consideration fixed for the transfer of the agency in the name of the second defendant. So the RFA.681/2008 11 pleadings itself would show that in total an amount of Rs.1,87,000/- was fixed as the consideration for the business which was transferred by the plaintiff to the second defendant. So the defendants fairly admitted that the travel agency run by the plaintiff was transferred in the name of the defendants and as the first defendant was a Government employee, the transfer was in favour of his wife, the second defendant. So the total consideration fixed for the said transfer was Rs.1,87,000/- as admitted by the defendants. So, according to the defendants, the entire consideration fixed as the value of the business transferred by the plaintiff, was Rs.1,87,000/- and the said amount had been repaid by the defendants and nothing was left back to be paid to the plaintiff, was the stand taken by the defendants. It is also pertinent to note that, in the written statement in paragraph 8 it was contended that, as per the RFA.681/2008 12 final statement and account the plaintiff had to repay an amount of Rs.1,32,000/- + Rs.5,000/- which he had received and another amount of Rs.5,000/- for the loss incurred by him due to the non-transfer of the telephone and the plaintiff is liable to pay the said amount. But they are giving up the amount of Rs.1,32,000/- and sought for a direction to the plaintiff to return the amount of Rs.10,000/- with interest. 10. The question to be looked into on the basis of the pleadings available on record is whether the plaintiff is entitled to realize an amount of Rs.1,65,000/- as the value of the business transferred by him in favour of the defendants. As referred to above, the transfer of the business for consideration is admitted by the defendants. Their stand is that the entire consideration would come to Rs.1,87,000/- as narrated above and that had already been RFA.681/2008 13 paid to the plaintiff. When such a contention is raised by the defendants, no doubt, the burden is upon the defendants to show that the consideration fixed for the transfer of the business run by the plaintiff to the defendants, had already been paid. Here, it is pertinent to note that the defendants have not adduced any oral evidence and they have not even cared to enter into the box and depose their case. But on the other hand, as PW1 the plaintiff's case has been reiterated by the supplemental fourth plaintiff who was impleaded in the case on the death of the original plaintiff. He gave evidence to the effect that the amount fixed as consideration was only Rs.1,65,000/- and not Rs.1,87,000/-. The defendants had admitted that on the basis of the contract dated 21.12.1993, the amount was fixed as Rs.1,87,000/-. But the said document was not produced before the court and RFA.681/2008 14 there is absolutely no record to show that the amount of Rs.1,57,000/- has been disbursed by the first defendant as that much amount had been collected by the plaintiff with the promise to arrange visa. So, the burden is upon the defendants to prove that the amount fixed was Rs.1,87,000/- and that had been paid by them. But there was no such attempt on the side of the defendants and their failure to give evidence would entitle the plaintiff to draw an adverse inference. 11. In Louiz v. Augustin (2004 (3) KLT 71), a learned Single Judge, of this Court after relying on the decision in Iswar Bhai C. Patel v. Harihar Behera (AIR 1999 SC 1341) held that when there is no specific denial of the pleadings in the written statement regarding the payments made by the plaintiff, there was no duty cast on the plaintiff to adduce evidence with respect to the matters which were RFA.681/2008 15 not specifically denied in the written statement. In Iswar Bhai C. Patel 's case (supra), the Apex Court has held that when an appellant abstains from the witness box and had not made any statement of oath in support of his pleadings set out in the written statement, an adverse inference can be drawn against him. 12. In Vidhyadhar v. Manikrao ((1999) 3 SCC 573), it has been observed in paragraph 17 as follows: “Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kripa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The RFA.681/2008 16 Madhya Pradesh High Court on Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh Case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.” So, the non-appearance of the defendants in the witness box to speak about their case pleaded in the written statement definitely entitle the plaintiffs to draw an adverse inference against the defendants. Here, this is not a case in which the main transaction alleged against the defendants that is the transfer of the business is not denied by the defendants, but, admitted in clear and definite terms. So, when the defendants have a case that consideration was RFA.681/2008 17 paid to the plaintiff in the suit filed by the plaintiff for realization of money as consideration for the transaction, definitely, the burden is upon the defendants and not on the plaintiff to prove its case. Here, the defendant had failed to adduce evidence to support its case that the amount fixed as consideration had already been paid by them. Hence, I find that there is nothing to be interfered with the claim put forth by the plaintiff. In fact, the plaintiff has claimed only Rs.1,65,000/-. It is admitted that the original plaintiff had received an amount of Rs.5,000/while undergoing treatment in the hospital. So definitely that amount has to be deducted from the total claim. So, the amount would be Rs.1,60,000/-. It is also to be noted that, the court below has decreed the suit for a sum of Rs.1,60,200/- with an exorbitant rate of interest, i.e., at the rate of 18% from 19.7.1997 till realization. Definitely, the RFA.681/2008 18 interest awarded has to be interfered with as an exorbitant rate of interest has been awarded for the plaint claim. Hence, the judgment and decree has to be modified to that extent alone. 13. So, on an evaluation of the entire evidence available on record, I find that the plaintiffs are entitled to get a decree for a sum of Rs.1,60,000/- with interest at the rate of 9% per annum from the date of the suit till realization. The plaintiffs can realize the same from the defendants and their assets. The parties are directed to bear their respective costs. The appeal is disposed of as above. **SD/-** **SHIRCY V.** **JUDGE** sb