VIMAL KUMAR E.K. v. VAKKATT SASIDHARAN

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **RSA.No.1071 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 02.03.2016 IN AS NO.169/2014 ARISING FROM THE JUDGMENT AND DECREE IN OS NO.384/2013 OF ADDITIONAL MUNSIFF'S COURT-I, KOZHIKODE** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** **VIMAL KUMAR E.K., AGED 63 YEARS, S/O. GOVINDAN NAIR,'LAKSHMI', MADATHIL PARAMB,PUTHIYANGADI AMSOM, DESOM, KOZHIKODE TALUK, P.O.EDAKKAD,KOZHIKODE - 673 005.** **BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **VAKKATT SASIDHARAN,** **AGED 59 YEARS, S/O. BALAN, 38/245,WEST HILL P.O., KATCHERI AMSOM, DESOM, KOZHIKODE TALUK - 673 005.** **R1 BY ADV. SRI.K.A.SALIL NARAYANAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON 13.03.2020 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RSA No.1071 of 2016** ## **= = = = = = = = = = = = = = = = = = Dated this the 13[th] day of March, 2020** ## **JUDGMENT** The suit for return of advance sale consideration under an agreement for sale, was dismissed concurrently by the courts below, against which the plaintiff is in second appeal. 2. Ext.A1 is the agreement dated 30.01.2013 on the strength of which the suit is filed. The agreement relates to 9.5 cents of property with a house therein. The total sale consideration mentioned is `12 lakhs, out of which an amount of `6 lakhs is stated to have been paid towards advance sale consideration. The period fixed for performance is six months, which expires on 30.07.2013. The plaintiff alleges that the property was under mortgage with a Bank and that the defendant had agreed to clear the liability with the advance sale consideration paid. On coming to know that the liability was not cleared, he issued RSA No.1071 of 2016 :- 2 :- Exts.A2 and A3 notices and the suit is filed for return of advance sale consideration. 3. The defendant though admitted the signature in Ext.A1, denied the genuineness of Ext.A1 agreement. The defendant contended that the plaintiff is a money lender and that the defendant had various other transactions with the plaintiff in the course of which blank signed papers were given. The same were misused and Ext.A1 created. 4. The courts below found that the plaintiff failed to prove Ext.A1 agreement and accordingly dismissed the suit. 5. Heard learned counsel Sri.Philip Antony Chacko on behalf of the appellant-plaintiff and Sri.Salil Narayanan on behalf of the respondentdefendant on the following substantial questions of law:- (i) When both sides had adduced evidence, did not the courts below err in failing to appreciate the entire evidence on record and decide on the preponderance of probabilities, by banking upon the RSA No.1071 of 2016 :- 3 :- ## theory of 'burden of proof'? (ii) Did not the courts below fail to take into consideration the material evidence on record ? 6. The signature of the defendant in Ext.A1 agreement is admitted. According to the defendant, the plaintiff is a money lender and there were earlier transactions with him in the course of which signed blank papers were given and the same have been misused for creation of Ext.A1. To prove the earlier transaction, the defendants have produced Exts.B1 to B3 agreements. They relate to the period 2006-07. Going by the pleadings, the loan transaction with the plaintiff was in the year 2007. However, Ext.A1 agreement is prepared on stamp paper of the year 2013. 7. According to the defendants, at the time of grant of loan, the plaintiff used to obtain blank signed papers and he used to realise exorbitant interest. At the time of closure of the loan, the plaintiff returns the documents to the defendants after tearing them through the middle. It is RSA No.1071 of 2016 :- 4 :- accordingly that Exts.B1 to B3 were produced by the defendants. There are various factors which operate against the defendant on the said contention. According to the defendant exorbitant rate of interest was being realised by the plaintiff. Though the defendants case is that signed blank papers were received by the plaintiff, Exts.B1 to B3 are written up as agreements. When the defendant is aware that on the signed blank papers, agreements or other documents are being created by the plaintiff, and that exorbitant interest is being claimed by the plaintiff, an ordinary prudent man could not have ventured into further transaction with such person. That apart, even according to the defendant on closure of the transaction by payment of exorbitant interest, the documents are returned to the defendant. The last transaction was of the year 2007 and the document has been returned to the defendant which is produced as Ext.B3. That indicates that the said transaction was closed. If that be so, the signed RSA No.1071 of 2016 :- 5 :- stamp paper of the year 2013 under which Ext.A1 agreement was written remain unexplained. In this context, the contention of the defendant in the written statement is of no significance and the same reads thus:- "അനനന് കന്യാരനനും പ്രതതിയനും തമതിൽ 2007 ൽ ഉണന് വവെറനും ഒരു ലകനും രൂപയവട ഇടപന്യാടതിൽ ഒന്നര ലകനും രൂപ വെന്യാങ്ങുകയനും പലതിശയതിനതതിൽ ഇനതിയനും 24,000/രൂപ നൽകുവെന്യാനവണന് പറഞന്ന് ഈ പണതതിവന ഈ പലതിശയനും പ്രതതിയതിൽ നതിനനും അനനന് കന്യാരൻ 2012 ഡതിസനുംബര്‍ കൂടതിയതന്ന് വെന്യാങതിയതിട്ടുള്ളതനും പതിന് ടന്ന് പലതിശ നൽകുവെന്യാൻ സന്യാധതികന്യാവത വെന്നതതിൽ അനനന് കന്യാരൻ ഈ പ്രതതികന്ന് 19.04.2013 തതിയ്യതതി വവെചന്ന് അനനന് തതിൽ ആരരന്യാപതിച തരതതിൽ ഒരു രജതിരസ്ട്രേഡന്ന് രലന് ര്‍ രനന്യാടന്നീസന്ന് അയച.” 8. Even going by the said pleading, for an amount of `1 lakh borrowed in the year 2007 the defendant repaid an amount of `1.5 lakhs, still there was a further demand for payment of `24,000/towards interest which also was paid. Definitely Ext.B3 must have been got returned at least then. RSA No.1071 of 2016 :- 6 :- There was no occasion for a further demand for interest and the handing over of the signed stamp paper of the year 2013. In fact there is no such case that after the year 2007, signed blank papers were entrusted to the plaintiff. There is no such pleadings or evidence. 9. Though the defendant claims that the plaintiff is a money lender and that he had been granting loans to other shop owners, he has not examined any one to show such dealings. He deposed that he is not aware of their names. Though in evidence, the defendant said that there has been a subsequent transaction between the parties on a fourth occasion, no details regarding the same is produced. 10. Even going by the evidence of DW1, there were three loan transactions between the parties which were closed and the three agreements were returned. If that be so, there is no explanation as to how the signed stamp paper of the year 2013 happened to be with the plaintiff. There is no case RSA No.1071 of 2016 :- 7 :- that in spite of the closure of the loan transaction under Ext.B3, the signed blank paper was not returned. There is no case set up that, consequent to any such non-return, any demand was made by the defendants for return of the same or any steps taken in that regard. 11. To crown all the above circumstances, Ext.A2 notice dated 19.04.2013 issued by the plaintiff to the defendant, though received by him, was not replied. The explanation offered by the defendant that on receipt of Ext.A2 notice, the plaintiff was met in person and the matter sorted out, is hardly acceptable. The courts below have placed undue reliance on the deposition of the plaintiff that there were no earlier financial transactions with the defendant; however, the very next sentence that in 2006 there was another agreement for sale, was not taken into consideration. 12. The signature of the defendant in a stamp paper of the year 2013 which is much subsequent to RSA No.1071 of 2016 :- 8 :- the transaction as pleaded by the defendant, having been admitted, the entire evidence on record including the explanation by the defendant as to the circumstances under which the same happened to be with the plaintiff, ought to be considered for deciding upon the genuineness of the plaint claim. The patent improbabilities in the defence case probabilises the case of the plaintiff. When both sides have adduced evidence, courts have to decide the case on such evidence and probabilities rather than banking upon the theory of burden of proof. When evidence has been adduced by the contesting parties, the theory of burden of proof dwindles into insignificance (See Rebti Devi v. Ram Dutt and another 1997 (11) SCC 714) . Material evidence has been overlooked by the courts, necessitating interfere with the impugned decree and judgment. The substantial questions of law are thus answered in favour of the appellant. 13. In the result, the decree and judgment of the courts below are set aside. The plaintiff is RSA No.1071 of 2016 :- 9 :- granted a decree for realisation of `6 lakh with interest at the rate of 6% per annum from the date of suit till realisation from the defendant and his assets. The plaintiff is entitled to the costs throughout. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge