The High Court allowed the appeal and set aside a decree of the trial court for recovery of Rs.3,00,000. The Court held that the plaintiffs failed to prove the cause of action as the oral evidence contradicted the pleadings and was inconsistent with the witness evidence.
Judgment and decree dated 10-12-2003 in O.S. No.789/2001 set aside and appeal allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941
RFA.No.744 OF 2008
AGAINST THE JUDGMENT AND DECREE IN OS 789/2001 DATED 10-12-2003 OF PRINCIPAL SUB COURT, THRISSUR
APPELLANT/1ST DEFENDANT:
T.M.MOHANAN
S/O.MADHAVAN, NOW RESIDING AT MAKKAL HOUSE, CHAVAKKAD THALUK, THRISSUR, THIRUNALLORE P.O POOVATHOOR.
BY ADVS. SRI.RAJIT SRI.RANJITH BABU SMT.TULASI
RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:
1 T.B.MUHAMMEDALI, S/O.BEERU, THERUVATHPEEDIAKKAL HOUSE, MANATHALA VILLAGE, CHAVAKKAD THALUK, THRISSUR DISTRICT.
R1-3 BY ADV. SRI.K.N.PADMAKUMAR R5 BY SMT.REHANA N.S, GOVERNMENT PLEADER
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MARY JOSEPH, J.
JUDGMENT
Judgment and decree dated 10.12.2003 in O.S.No.789 of 2001
on the files of Principal Sub Court, Thrissur is under challenge. The 1st defendant who suffered the judgment and decree in a suit filed by plaintiffs 1 to 3 is the appellant. The suit was for realisation of money and it was decreed against defendants 1 and 2 directing them to pay Rs.3,21,600/- with interest at the rate of 6% per annum on the principal sum of Rs.3,00,000/-, from the date of the suit till realisation and costs.
that pleadings are totally lacking to base certain aspects spoken in witness box by him. According to her, though in the plaint, the date on which the amount is demanded is found, but, there is total want of evidence regarding the date on which the amount was advanced.
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Accordingly, an exparte decree was passed against the 2nd defendant and he did not come up in appeal in challenge of the same.
and crucial and relevant part of paragraph 3 of the plaint is extracted hereunder:
“3...... on 7th of October, 1998 the defendants approached the plaintiffs seeking a hand loan of Rs.3,00,000/- (Rupees three lakh) for running the banking business of them, offering to repay the same within two months. An oral agreement was entered into between the plaintiffs and defendants in the presence of the then Municipal councillor K.T.Barathan and as a security for the loan amount, defendants handed over deposit receipts of Rs.1,80,000/- (Rupees one lakh eighty thousand) of defendants, issued by Managing Partner Zodiac Investments, Manathala, Chavakkad.”
and remained exparte .
made by the plaintiff in the plaint as per the extract supra. Apart from denial, precise contentions were also raised in the written
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statement filed by the 1st defendant and it being incorporated in paragraphs 2 & 4, the relevant parts of which are extracted
hereunder:-
“2) …...........The alleged Fixed deposit receipts are not in the name of the defendants. The owners of the so called receipts are not parties to the suit or the disputed transaction. The possession of the Fixed deposit receipts in the hands of the plaintiffs is illegal. That apart the impugned Receipts are not Fixed deposited Receipts whereas they are pronotes otherwise than no demand.”
“4).................. The lawyer notice dated 29.01.2001 was a ruse for the plaintiff to take the defendants to the police station at Chavakkad. The plaintiffs under the influence of the Ruling party member Mr.K.T.Bharathan had forced to obtain signatures of this defendant in the Chavakkad Police Station.
The 1st defendant has not had received the Lawyer Notice allegedly sent by the plaintiff. He was out of station when the intimation was given. By the time he went to the Post Office for collecting the Mail, he was informed that the registered letter had been sent back. Neverth-less the so called letter is full of stories and contradictory materials. This defendant has not had any transaction with the plaintiffs. Just because this defendant chanced to be a partners of the 2nd defendant he was called to the Chavakkad Police Station and forced him to sign few documents. This defendant had to sign the documents for fear of threat to his life. A document obtained under duress cannot be used for fastening the liability on this defendant. This defendant has no right to handover to the plaintiffs the so called deposit receipts of other persons nor has be given to them.”
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plaintiffs seeking to realise Rs.3,21,600/- with interest.
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promissory notes executed by the Manager of Zodiac Investments, Manathala.
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Rs.50,000/- by the 3rd plaintiff on the same day appears to have been spoken without any pleadings being raised on that count in the plaint and therefore, is irrelevant. The very substratum of the suit for realisation of money rests on which date, the manner in which and by whom money was advanced. As already stated the plaint in question is devoid of pleadings in that respect. Evidence adduced without pleadings being raised to form basis, is irrelevant and evidentiary value is lost. Therefore, it is impossible to derive a finding from the evidence of PW1, for reasons stated above.
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writing. According to him, the money was advanced on the basis of terms orally agreed by the parties. Whereas, PW2 has deposed during examination that the terms on which amount was advanced were entered into an agreement in writing by the parties. PW2 has been introduced by PW1 during examination as an independent witness to the transaction of advancement of money.
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In the above circumstances, the plaintiffs cannot be said to have succeeded in establishing that Rs.3,00,000/- was advanced by him as hand loan to the defendants on 07.10.1998. When the
cause of action is not established there is no question of granting the relief. The trial court failed to apply its mind to the evidence of witnesses in the correct perspective and therefore, the above aspects failed to be taken note of and appreciated. Accordingly, suit was decreed and direction was caused to be issued to the defendants to pay Rs.3,21,600/- with interest to the plaintiffs. The judgment and decree deserve reversal.
In the result, appeal is allowed. Judgment and decree is set aside.
Sd/-
MARY JOSEPH, JUDGE
NAB
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The order dated 12/11/2019 in RFA (Indigent) No.744/2008 “Section shall take measures to realize court fee from the appellant” is incorporated as part of the Judgment dated
12/11/2019.
3 issues framed by the court
Whether the evidence regarding the date and mode of advancement of the loan was supported by pleadings.
Whether the plaintiffs successfully established the occurrence of the transaction due to inconsistencies in witness evidence.
Whether the trial court ought to have set aside the decree for lack of established cause of action.
T.M. MOHANAN
T.B. MUHAMMEDALI
N.V. VASU
K.K. BALAKRISHNAN
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
