Dismissed

Rajan v. Sanal Kumar

Kerala HC20 Jan 2017RSA/599/2012

Case brief

AI extract

What is this about?

In a regular second appeal regarding a suit for recovery on a promissory note, the High Court of Kerala upheld the lower appellate court's judgment dismissing the suit. The Court held that the defendant failed to raise the plea of coercion in his written statement, rendering his evidence inadmissible under Order VIII Rule 2 CPC, and found no merit in the second appeal.

What did the court decide?

Second appeal dismissed with costs; original decree in favour of the plaintiff remains valid.

Rajan Vs Sanal Kumar — Contract and Commercial Disputes | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938

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RSA.No. 599 of 2012 ()

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AGAINST THE JUDGMENT AND DECREE DATED 29-11-2011 IN AS 353/2010 of ADDITIONAL DISTRICT COURT-I, THIRUVANANTHAPURAM

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AGAINST THE JUDGMENT AND DECREE DATED 19-03-2005 IN OS 251/2004 of PRINCIPAL MUNSIFF’S COURT, NEYYATTINKARA

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APPELLANT/RESPONDENT/DEFENDANT:

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RAJAN,

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S/O. MANAS, KAMALAMMA BHAVAN, MUNDUVILA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

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BY ADV. SRI.R.GOPAN

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RESPONDENT/APPELLANT/PLAINTIFF:

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SANAL KUMAR, S/O. RAJAYYAN, AGED 32, MANKALA VEEDU7, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE-695 001.

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R1 BY ADV. R.T.PRADEEP(CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/30/1/17

B. KEMAL PASHA, J

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R.S.A.No.599 of 2012

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Dated this the 20^th day of January, 2017

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J U D G M E N T

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Challenging the judgment and decree passed by

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the Additional District Court-I, Thiruvananthapuram in A.S.No.353 of 2010, the respondent in the appeal has come up with this second appeal. Originally, the

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suit was filed as O.S.No.251 of 2004 before the Principal Munsiff’s Court, Neyyattinkara. The suit is one for money based on Exhibit-A1 promissory note. The trial court dismissed the suit and consequently, an appeal was preferred as A.S.No.353 of 2010 before the Additional District Court-I,

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Thiruvananthapuram, by the plaintiff, who was non-

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R.S.A.No.599/2012

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: 2 :

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suited. The District Court allowed the appeal and decreed the suit by directing the defendant to pay the plaintiff a sum of `65,000/- with interest at the rate of 6% per annum from 12.03.2004 till realisation.

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The case of the plaintiff is that the defendant

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borrowed an amount of `65,000/- from him by executing a promissory note on 26.12.2002, whereby agreeing to repay the amount with interest at normal rate, on demand. Even after repeated requests and demands, the amount was not repaid and consequently, the plaintiff caused to issue Exhibit-A3 lawyer’s notice, thereby forwarding the demand. Since the defendant failed to make the payment, the suit was filed.

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The defendant contended that on

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13.10.2003, the plaintiff along with two of his friends took the defendant and his friend named Cletus

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R.S.A.No.599/2012

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: 3 :

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(DW2) to the house of the plaintiff and there he was threatened and intimidated and by force, the defendant was made to write a promissory note dated 26.12.2002, for `65,000/-, and the plaintiff obtained the said promissory note from the defendant. According to the defendant, he filed a criminal case in respect of that incident, in which the Police conducted investigation and filed a Final Report against the plaintiff and his associates and

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the said case is pending as C.C.No.882 of 2003 before the Judicial First Class Magistrate’s Court-II, Neyyattinkara. It is also contended that since the plaintiff was absconding during the period of investigation, the Police could not seize the promissory note. According to the defendant, the plaintiff is not entitled to realise any amount from him.

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The trial court believed the versions of DW1

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R.S.A.No.599/2012 : 4 :

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and DW2 in the light of Exhibit-B1 First Information Report and complaint. The plaintiff deposed before the trial court as PW1, and one of the witnesses to Exhibit-A1 was examined as PW2. The trial court by believing the contentions of the defendant, dismissed the suit.

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Heard the learned counsel for the appellant and the learned counsel for the respondent.

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It seems that the trial court had not properly

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appreciated the facts as well as the law involved. This is a case, wherein the execution of Exhibit-A1 promissory note has been clearly admitted by the defendant. At the same time, he contended that Exhibit-A1 lacks free consent in the sense that it is hit by coercion. When execution is admitted and it is contended that the said document lacks free consent

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and is hit by coercion, the burden is heavily on the person sets up such a contention to plead and

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R.S.A.No.599/2012 : 5 :

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proves it specifically. In fact the plaintiff in this case has no burden at all. It seems that the lower appellate court has correctly dealt with the matter.

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Exhibit-B4 is the reply notice caused to be issued by the defendant to the plaintiff’s lawyer. In Exhibit-B4, it has been stated that the defendant and DW2 were put in fear of death by the plaintiff. At the same time, such a fact has not been pleaded in the written statement. In Exhibit-B4, it has been further stated that the defendant had introduced one Sabu Kumar to the plaintiff and thereafter, the said Sabu Kumar had money transactions with the plaintiff. Problems and disputes arose between them and thereby, the plaintiff along with two others approached the defendant at 5.30 p.m. on 13.10.2003, when the defendant was engaged in a chat with one Cletus on the road in front of his house. It has been further stated that clandestinely,

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R.S.A.No.599/2012 : 6 :

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the defendant along with DW2 were taken to the house of the plaintiff, where the said coercion etc. were exerted. These facts have not been pleaded in the written statement. When these facts have not been pleaded, the same is clearly hit by Order VIII Rule 2 of the Code of Civil Procedure. It seems that the defendant has attempted to put up a building without a foundation and therefore, the same is expected to collapse at any time. The entire case set up by the defendant through the evidence of DW1 and DW2 crumbles and collapses on account of the lack of pleadings in the written statement.

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On going through the judgment passed by the trial court and the judgment passed by the lower appellate court, it has come out that the lower appellate court has dealt with the matter in its correct perspective and has appreciated the facts and law on the subject. There is absolutely nothing

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R.S.A.No.599/2012

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: 7 :

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to interfere with the impugned judgment passed by the lower appellate court. In fact, no questions of law has arisen in the matter. This second appeal is devoid of merits and it is only to be dismissed with

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costs, and I do so.

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In the result, this second appeal is dismissed

with costs.

Sd/-

B. KEMAL PASHA,

JUDGE.

DSV/21/1/17

// True Copy //

P.A. To Judge

Rajan v. Sanal Kumar

Case brief

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Rajan v. Sanal Kumar

Case brief

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