IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 736 of 2008()
1. MADHAVAN GOPALAKRISHNAN, AGED 66,
... Petitioner
Vs
1. BALAKRISHNAE GOPI,
... Respondent
For Petitioner :SRI.S.SACHITHANANDA PAI
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/04/2009
O R D E R
K.P. Balachandran, J.
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R.S.A.No.736 of 2008
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JUDGMENT
The defendant in O.S.No.234/04 on the file of
the Munsiff’s Court, Karunagappally is the
appellant in this Regular Second Appeal filed
assailing the concurrent verdicts passed by the
courts below in favour of the respondent/plaintiff
directing the appellant/defendant to pay the
respondent/plaintiff the plaint claim of
Rs.54,000/- together with interest at 12% per annum
on the principal sum of Rs.40,000/- from the date
of suit till realisation.
2. The respondent as plaintiff instituted the
suit aforesaid, inter alia, on the allegations that
the appellant/defendant is the absolute owner in
possession of an extent of fourteen cents of
property comprised in Sy.No.2005 (R.S.No.24/21) of
Thekkumbhagom Village, he having obtained the
property under Sale Deed No.661/73 of SRO, Chavara;
RSA 736/08 2
that on 21.4.2001, the appellant/defendant entered
into Exhibit A1 agreement for sale to him of the
said property; that as per the terms of the said
agreement, the property was agreed to be sold for a
total consideration of Rs.45,000/-; that on the
date of execution of the agreement for sale, he
paid an amount of Rs.40,000/- as advance and the
balance sale consideration of Rs.5,000/- was
payable within two months from 21.4.2001; that he
was ready and willing to perform his part of the
contract, but the appellant/defendant was not
prepared to execute the sale deed, receiving the
balance consideration of Rs.5,000/-; that
therefore, he demanded the appellant/defendant to
return the advance amount with interest, but he did
not do that either and that on 2.7.2001, he caused
a lawyer notice to be issued to the appellant/
defendant demanding return of the advance money
with interest under Exhibit A2 postal registration
receipt and that was accepted by the appellant/
RSA 736/08 3
defendant under Exhibit A3 postal acknowledgment
card, but he did not comply with the demand.
3. The appellant/defendant resisted the suit
denying execution of Exhibit A1 agreement and
receipt of advance amount of Rs.40,000/- and
contending that the respondent/plaintiff had
instituted the suit for realisation of money to the
tune of Rs.37,166/- against his son Lalu as O.S.No.
339/01 before the Munsiff’s Court, Kollam that on
I.A.No.1664/01 filed under Order XXXVIII Rule 5
CPC, the court ordered notice and under the pretext
of effecting service of notice, the respondent/
plaintiff and some other persons came to his house
and threatened him that the court had ordered
attachment of the movables kept in his house and
they directed him to handover some signed blank
papers and stamp papers to the respondent/plaintiff
if he wanted to avoid attachment; that thereafter,
the respondent/plaintiff and others have forcibly
obtained some signed blank papers and stamp papers
RSA 736/08 4
from him; that he apprehends that the suit
agreement is brought into existence fabricating
those papers; that the respondent/plaintiff has no
cause of action and that the suit has to be
dismissed.
4. It is vehemently contended before me by the
learned counsel for the appellant/defendant that
Exhibit A1 agreement is unenforceable in law since
the signatures of the appellant/defendant therein
is obtained under coercion and fraud; that the
present suit is barred in the light of the
admission made by the respondent/plaintiff at the
time of evidence that an earlier suit had been
filed based on Exhibit A1, which was withdrawn by
him; that however, the first appellate court should
not have dismissed I.A.No.71/08 filed by him for
receipt of additional documents in evidence and
that the suit should not have been decreed without
convincing evidence regarding passing of
consideration.
RSA 736/08 5
5. Though argument is advanced to the effect
that Exhibit A1 agreement is unenforceable in law
since the signatures of the appellant/defendant was
obtained under coercion and fraud, there is
absolutely no pleading which brings the defence
case within the scope of the agreement being
vitiated by fraud and coercion. The only contention
is that an Officer of the court along with a few
others approached the house of the appellant/
defendant to attach the movables in a suit filed
against his son and he was asked to affix
signatures on certain blank papers and stamp papers
and accordingly he signed and delivered the signed
blank papers and stamp papers for avoiding
attachment. There is no case of any coercion having
been exercised or any fraud having been played to
get Exhibit A1 agreement executed.
6. Counsel for the appellant/defendant submits
that there are two witnesses to Exhibit A1
agreement, who are examined respectively as PW2 and
RSA 736/08 6
DW2, of whom, PW2 has supported the case of the
respondent/plaintiff and DW2 has supported the case
of the appellant/defendant.
7. It is worthy to note that the material
witness to the cause is the Officer of the court,
who went over to the house of the appellant/
defendant to effect attachment of the movables and
returned the warrant without effecting the
attachment consequent on some developments that
have taken place at the house of the appellant/
defendant. The said Officer of the court is the
best person to give evidence as to what all
transpired at the house of the appellant/defendant
which paved way for him to return the warrant
without effecting attachment. The appellant/
defendant has not cared to examine the said witness
who would have given truthful version of what has
transpired at the house of the appellant/defendant.
In the normal course, the Officer of the court, if
examined, would have given some evidence which
RSA 736/08 7
would throw light as to whether Exhibit A1
agreement was being duly executed by the appellant/
defendant or that his signatures were being
obtained on blank papers and stamp papers. The
appellant/defendant who has raised contention on
the lines that he has not executed Exhibit A1
agreement at all and that the respondent/plaintiff
was bringing into existence Exhibit A1 misusing the
signed blank papers and stamp papers obtained from
him cannot be heard to contend further that the
respondent/plaintiff should have proved passing of
consideration to the full extent or that the
consideration stated to have been paid was not
actually paid, but was being adjusted in some other
manner.
8. The next contention that the respondent/
plaintiff admitted, when cross-examined, that he
had filed an earlier suit for specific performance
and that was withdrawn has to be accepted to hold
that the present suit is barred by res judicata is
RSA 736/08 8
untenable as the number of the said suit or the
manner in which it was withdrawn are not brought
out in evidence and the appellant/defendant has no
case that he is served with summons in any such
case. The further contention that certain documents
were produced before the first appellate court
along with I.A.No.71/08 and that was improperly
refused to be admitted in evidence is not a
contention that can be advanced before this Court
when such documents, which are said to have been
produced along with I.A.No.71/08, are not even
attempted to be produced and got admitted in
evidence before this Court and the said IA also is
not produced and there is no evidence as to what
all were the documents which the appellant/
defendant wanted to get admitted in evidence at the
stage of first appeal and whether those were
admissible.
9. On the evidence adduced by both sides in the
suit, the courts below have concurrently found that
RSA 736/08 9
the defence set up is false and that the appellant/
defendant has received the advance amount of
Rs.40,000/- under the suit agreement and it was,
therefore, that the suit was decreed for
realisation of the said amount with interest till
date of suit as claimed and thereafter at the rate
of 12% per annum on the principal sum from the date
of suit till realisation. The decree so passed by
the courts below appreciating the evidence in the
proper perspective and concurrently does not
deserve to be interfered with in this Regular
Second Appeal. There is no question of law and
much less any substantial question of law that
arises for consideration by this Court in this
Regular Second Appeal.
In the result, I dismiss this Regular Second
Appeal in limine refusing admission.
2nd April, 2009 (K.P.Balachandran, Judge)
tkv