V. Janaki and others v. K. Narayani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** ## **RSA.No.781 OF 2019** **AGAINST THE JUDGMENT AND DECREE IN AS No.17/2017 DATED 29.03.2019 OF DISTRICT COURT, KASARAGOD AND JUDGMENT AND DEREE IN OS NO.8/2015 DATED 23.02.2017 OF SUB COURT, HOSDURG** **-----** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **1 V.JANAKI, AGED 59 YEARS, W/O.PADACHERY KRISHNAN, PILANTHOLI CHEEMENI VILLAGE, P.O.CHEEMENI, HOSDURG TALUK.** **2 JISH.V., AGED 37 YEARS, S/O.PADACHERY KRISHNAN, PILANTHOLI CHEEMENI VILLAGE, P.O.CHEEMENI, HOSDURG TALUK.** **3 SURAMYA.V., AGED 34 YEARS, D/O.PADACHERY KRISHNAN, PILANTHOLI CHEEMENI VILLAGE, P.O.CHEEMENI, HOSDURG TALUK.** **BY ADVS. SMT.R.LEELA SRI.K.K.ANIL KUMAR** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **K.NARAYANI, AGED 67 YEARS, D/O.KAYANADAN LAKSHMI, HINDU, HOUSEHOLD, RESIDING AT KAYANADAN HOUSE, NEAR V.B.TEMPLE, CHERUVATHUR VILLAGE, P.O.CHERUVATHUR, HOSDURG-671313.** **R1 BY ADV. SRI.P.M.PAREETH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA No.781 of 2019** **= = = = = = = = = = = = = = = = = = Dated this the 11[th] day of February, 2020** ## **JUDGMENT** The defendants in a suit for recovery of money are the appellants. The suit though dismissed by the trial court, the decree was reversed in appeal. 2. The claim for money is under the head “return of advance sale consideration”. According to the plaintiff, Ext.A1 agreement dated 01.01.2015 was executed by the defendants in favour of the plaintiff agreeing to sell 2.43 acres of property belonging to the defendants in favour of the plaintiff for a total consideration of `35 lakhs. An amount of `10 lakhs was paid towards advance sale consideration. The payment of advance, apart from being acknowledged in Ext.A1 agreement, Ext.A2 receipt dated 01.01.2015 has also been executed in plaintiff's favour. The period fixed for performance was two months. On expiry of the period, on the intervention of the mediators Ext.A3 RSA No.781 of 2019 :- 2 :- agreement was executed on 17.03.2015 whereby, the defendants agreed to return the advance amount of `10 lakhs with interest within a period of six months. It was further provided in Ext.A3 that in case of default in payment of the said amount, the property will be conveyed to the plaintiff for an amount of `22 lakhs and the amount of `10 lakhs paid will be adjusted towards the consideration. The agreement was not honoured to by the defendants. The third defendant had not signed Ext.A1. Stating that to be the reason, the plaintiff, on 17.03.2015 instead of seeking a decree for specific performance, filed the suit for return of the advance sale consideration. 3. The defendants denied Exts.A1 to A3 and the alleged transaction in its entirety. According to the defendant, the plaintiff's son was married to the daughter of one Kaini Gopalan who is a money lender; the first defendant borrowed an amount of `2 lakhs from him and as demanded by him, signed blank papers of defendants 1 and 2 were entrusted RSA No.781 of 2019 :- 3 :- to him. Though the amount was repaid, the signed papers were not returned. The same have been misutilised to create Exts.A1 to A3 and the suit is filed, contends the defendants. 4. The trial court found that the plaintiff failed to prove the transaction as pleaded and accordingly dismissed the suit. The lower appellate court, on appreciating the circumstances, found the case set up by the plaintiff to be probable and accordingly granted a decree in favour of the plaintiff. 5. On hearing the learned counsel on either sides, the following substantial question of law is raised for consideration and the counsel heard elaborately on the same:- “Is the appreciation of evidence by the first appellate court, perverse rendering the judgment liable to be interfered with?” 6. The genuineness of Exts.A1 to A3 documents which form the basis for the suit, is disputed by RSA No.781 of 2019 :- 4 :- the defendants. According to the defendants, blank signed papers obtained in the circumstances as noticed first above were misutilized to create them. The evidence adduced by the plaintiff consists of the oral evidence of PWs.1 to 6 and Exts.A1 to A6. On the side of the defendants the second defendant got examined as DW1. No documentary evidence is produced on their side. The scribe of the document has been examined as PW2 and the broker claimed to have involved in the transaction is examined as PW3. The mediator who intervened and caused execution of Ext.A3 agreement was examined as PW4. The learned counsel for the appellant would refer to various discrepancies in the evidence of the plaintiff to contend that the case as set up by the plaintiff is unreliable. According to the counsel, the names of the so called scribe and mediators were not mentioned in the plaint. The terms of Exts.A1 and A3 itself indicates that they are not genuine since the sale consideration mentioned in Ext.A1 is `35 lakhs whereas in the subsequent agreement Ext.A3 it is RSA No.781 of 2019 :- 5 :- mentioned as `22 lakhs. The agreement further provides that the expenses for the sale is to be borne by the vendor which is glaringly inconsistent with the usual practice. There are contradictions in the evidence as to whether the documents are written or printed. Regarding the financial capacity different versions are projected by the plaintiff. There is a residential house situated in the property but the same has not been mentioned in Exts.A1 to A3. Though PW2 claims to be the scribe, even as admitted by him he does not know Malayalam computer typing and the documents are computer typed. All these circumstances are strongly relied on by the learned counsel for the appellantsdefendants. 7. The explanation of the defendants as regards Exts.A1 to A3 is the misutilization of the signed papers by Kainy Gopalan. It is claimed that the signed papers were given when `2 lakhs was borrowed from Gopalan. The date on which the alleged borrowal was made is not mentioned. The defendants claim that the amount was repaid to Gopalan. RSA No.781 of 2019 :- 6 :- However, as to when the repayment was made, is not mentioned. In cross-examination, certain dates are mentioned by DW1. There is no reason why it was not mentioned either in the written statement or in the proof affidavit. That apart, apart from the mere statement, there is no material evidencing the alleged borrowal and repayment. According to the defendant, the documents were not returned in spite of repayment of the loan. However, no steps were taken with regard to the same till the filing of the suit. DW1 claims that the details regarding the loan and repayment is noted in a book maintained by her sister. However neither the sister is examined nor the alleged book produced. Moreover, the alleged borrowal by the first defendant was for her sister's husband. There is no reason why the defendants should borrow the amount for him. The brother-in-law is not examined. To prove the source of money, the plaintiff has produced Ext.A6 the statement of Bank account of PW6, her sister. The Bank account evidences withdrawal of an amount of `5 lakhs and `2.5 lakhs on 12.12.2014 and RSA No.781 of 2019 :- 7 :- 31.12.2014 respectively. It is not in dispute that on the very next day of Ext.A1 agreement, the liability that defendants had with the bank was settled. All these circumstances probabilises the case set up by the plaintiff. 8. The alleged discrepancies in the evidence of the plaintiff has been considered in extenso by the lower appellate court and has properly explained the same. The lower appellate court has considered the entire evidence and found the case of the plaintiff to be more probable than the defence. The appreciation of the evidence by the lower appellate court cannot be said to be perverse. The substantial question of law is answered accordingly in favour of the respondent. 9. When the appellate court has fairly appreciated the evidence, even assuming that another view of the matter would be possible on a reappreciation of the evidence, this Court is not entitled to substitute the view in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. [See Navaneethammal v. Arjuna Chetty RSA No.781 of 2019 :- 8 :- ## (1996) 6 SCC 166] . 10. However, I do notice that the court has granted interest pendente lite at 12% which is evidently excessive considering the prevailing rate of interest in banking transactions. Interest at 6% pendente lite is just and reasonable. The decree and judgment impugned is liable to be interfered with to the above extent and I do so. In the result, this appeal is allowed in part. The pendente lite interest will stand refixed at 6%. In all other respects the impugned decree and judgment will stand affirmed. Parties to bear their costs in the second appeal. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge