IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 632 of 1999(A)
1. VASU SREEDHARAN
... Petitioner
Vs
1. MADHAVAN RAVI
... Respondent
For Petitioner :SRI.M.V.MATHEW
For Respondent :SRI.K.S.HARIHARAPUTHRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :14/09/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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S.A No.632 OF 1999
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Dated this the 14th day of September 2010
JUDGMENT
The defendants in a suit for money are the appellants.
The second appellant/second defendant is the son-in-law of the
first appellant/first defendant. The second defendant promising
to provide a visa to the plaintiff/respondent which would enable
him to secure an employment abroad collected from him a sum of
Rs.20,000/-, but, the promise was honoured only in its breach,
was the case of the plaintiff to claim refund of that amount. Both
the defendants filed a joint written statement contending that a
sum of Rs.5,000/- alone was collected by the second defendant,
admittedly, with a promise to provide a visa to the plaintiff for
getting employment abroad. The plaintiff, in association with
some others, after keeping the defendants in wrongful restraint,
got from them a document styled as an agreement undertaking to
repay a sum of Rs.20,000/- as if such sum had been collected
from the plaintiff, was the defense raised.
2. The trial court, on the materials tendered by both sides,
was inclined to accept the contention raised by the defendants
that only a sum of Rs.5,000/- was collected by the second
defendant from the plaintiff. In that view of the matter, a decree
S.A No.632 OF 1999 – 2 –
was granted in favour of the plaintiff only for a sum of Rs.5,000/-
of the suit claim for Rs.20,000/-. Plaintiff preferred an appeal to
the extent he was aggrieved by the declining of the sum claimed
under his suit. The first appellate court, after reappreciation of
the materials tendered, differed from the views taken by the trial
court and granted a decree to the plaintiff as canvassed in his
suit. Impeaching the modification so made under the decree
passed by the first appellate court in allowing the suit claim as
prayed for by the plaintiff, the defendants have preferred this
appeal.
3. I heard the counsel on both sides. The first appellate
court has misappreciated the materials on record to differ from
the conclusion reached by the trial court is the submission of the
learned counsel appearing for the appellants/defendants. Though
the plaintiff has produced Ext.A4, a certificate from a bank to
show that he had collected two Demand Drafts for sums of
Rs.8,000/- and Rs.7,000/- respectively, no documentary evidence
was tendered in the case to show that such drafts had been
handed over to the second defendant, as alleged to sustain the
suit claim, is the further submission of the learned counsel for the
appellants. When there was no convincing evidence proving the
S.A No.632 OF 1999 – 3 –
case of the plaintiff that there was a further payment of
Rs.15,000/- either by way of drafts or otherwise to the second
defendant, and that too, where both the courts, on the materials
placed, found some merit in the defence set up by the defendants
that the creation of Ext.A1 agreement was under such
circumstances which would indicate that the defendants were
under some sort of confinement when such a document was
obtained from them, the first appellate court was not at all
justified in interfering and modifying the decree passed by the
trial judge, who alone had the opportunity to watch the
demeanour and deportment of the witnesses, is the submission of
the counsel for the appellants. The decree of the trial court
granting the plaintiff the sum of Rs.5,000/-, the liability of which
alone was admitted by the defendants, alone is allowable on the
facts and circumstances presented and materials produced, and,
so much so, the decree rendered by the first appellate court
awarding the suit claim as such, according to the counsel, is liable
to be set aside. Per contra, the learned counsel appearing for the
plaintiff inviting my attention to the materials tendered, more
particularly Exts.A4, A5 and X1, contended that the suit claim
canvassed by the plaintiffs has been proved by convincing
S.A No.632 OF 1999 – 4 –
evidence. No error of law, leave alone any substantial question of
law, has been raised in the appeal to impeach the finding arrived
by the first appellate court, which is the final authority on
disputed question of facts involved, is the further submission of
the counsel to contend that no interference with the decree of
that court is called for.
4. Having regard to the submissions made by the counsel
on both sides with reference to the judgments rendered by the
courts below, the only question that require to be looked into is
whether the decreeing of the suit, in its entirety, by the lower
appellate court modifying the decree of the trial court limiting it to
a sum of Rs.5,000/- only after reappreciating the materials on
record, suffers from any legal infirmity warranting interference by
this court. In analysing that question, the admitted back drop of
the case that the transaction giving raise to the suit claim was on
the basis of a promise extended by the second defendant to
provide an employment visa on payment of sum cannot be
ignored at all. The defendants have admitted that a sum of
Rs.5,000/- was collected from the plaintiff by the second
defendant on such promise. A further sum of Rs.15,000/- was
later collected and it was paid by bank drafts to the 2nd defendant
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is the case of the plaintiff, which, however, was denied by the
defendants. Ext.A1 agreement was produced by the plaintiff to
prove that there was such collection by the second defendant and
also undertaking of both the defendants to repay such sum.
Creation of that document was impeached by defendants
contending that it was obtained by keeping them under wrongful
restraint. Both the courts, it is seen, were inclined to hold that the
contention so canvassed by the defendants cannot be brushed
aside as totally meritless. However, no definite finding is entered
by the lower appellate court as to whether Ext.A1 agreement
cannot be acted upon as having been the product arising from
illegal and vitiated circumstances. Irrespective of the validity of
Ext.A1, whether it was obtained from the defendants under a
vitiating circumstance or not, on the materials placed, it is seen
that the case canvassed by the plaintiff that a sum of Rs.20,000/-
had been collected from him on the promise to provide him an
employment visa by the second defendant is more probable and
acceptable. Plaintiff promised with such an employment visa, it
has come out , went to Bombay, stayed there for quite sometime
and, later, returned when the promise was honoured only in its
breach by the second defendant. It is ridiculous to imagine that
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the second defendant promised to provide an employment visa to
the plaintiff on getting a paltry sum of Rs.5,000/-. The case of the
plaintiff as deposed by him that when he went over to Bombay,
the demand drafts for Rs.15,000/- handed over to the second
defendant had been found trust worthy deserving acceptance, by
the lower appellate court. The letter sent by first defendant,
(Ext.X1) to PW3, wherein the liability for such sum collected is
admitted corroborates the case of the plaintiff. Though the first
defendant had disputed the letter Ext.X1, in the light of the
evidence of PW3, to whom it was sent and also that of the plaintiff
as well, its genuineness need not be doubted. In Ext.A5 letter
sent by the second defendant to the plaintiff, the liability towards
the sum collected for providing the visa is specifically adverted
though the sum was not mentioned. A reading of Ext.A5 would
indicate that the second defendant at the point of time when he
sent the letter was carrying on a business or activity of sending
people abroad providing them employment visas. The expenses
incurred by him in connection with the hospital treatments, flight
expenses etc. of the persons who approached him for visa, stated
in his letter (Ext.A50 is a tell tale circumstance indicating that he
was not doing such activity as charity, but, only after collecting
S.A No.632 OF 1999 – 7 –
substantial sum from such persons who desired to go abroad
getting employment visa from him. The case of the defendants
that the second defendant had collected only a sum of Rs.5,000/-
from the plaintiff, in the light of the materials produced by the
plaintiff, especially Exts.A4, A5 and X1, is found to be unworthy of
any merit. The lower appellate court has rightly and correctly
come to the conclusion, after reappreciating the evidence, that a
sum of Rs.20,000/-, as alleged by the plaintiff, had been collected
by the second defendant, and entire sum thereof is liable to be
refunded. There is no error or infirmity in the finding so arrived
by that court for granting the decree for such sum in modification
of the decree passed by the trial court. The appeal is devoid of
any merit, and, it is dismissed with costs of the respondent.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
vdv P.A to Judge