IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 905 of 1996()
1. PURUSHOPTHAMA KURUP
... Petitioner
Vs
1. ISWARIYA PRADAYANI
... Respondent
For Petitioner :SRI.K.SASIKUMAR
For Respondent :SRI.P.S.KRISHNA PILLAI
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/10/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.905 OF 1996
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Dated this the 27th day of October, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree of the Subordinate Judge, Mavelikara in
O.S.No.62/1989. The suit is one for specific performance and
in the alternative one for recovery of the amount. The brief
facts are as follows:
The defendant was the Manager of a school. It is
submitted that while Manager he had utilised the amount
unauthorisedly and therefore an amount of Rs.20,100.75 was
due from him to the institution. Therefore the defendant
entered into a registered agreement with the plaintiff
promising to pay the said amount within the stipulated time
and in default agreed to assign the property for further
payment wherein the amount already due from him can be
appropriated as advance amount. The defendant did not
pay the amount or executed the document, hence the suit.
2. On the other hand, the defendant would contend that
the agreement relied upon is vitiated by fraud, coercion etc
and therefore, the plaintiff is not entitled to any relief under
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the Contract Act. He had stoutly denied the liability of him
to pay the amount. Therefore he had prayed for dismissal of
the suit.
3. In the trial court, PW1 and DW1 were examined,
Exts.A1 to A12 were marked. The trial court did not grant a
decree for specific performance but granted a decree for
realisation of the amount with a charge on the plaint
schedule property. It is against that decision the defendant
has come up in appeal.
4. Heard the learned counsel for the appellant as well
as the respondent. Ext.A4 is the registered agreement
entered into between the plaintiff and the defendant. A
perusal of that document would reveal that an amount of
Rs.20,100.75 was outstanding from the defendant to the
plaintiff and therefore he had promised to repay it within
six months and in case of default, he had further agreed to
assign the property described for a further consideration
wherein the amount due from the defendant can be
adjusted towards the sale consideration as the advance
amount. It has to be remembered that this agreement is
registered. The defendant does not deny the execution of
the agreement but he contends that the agreement is vitiated
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by fraud and coercion. It is the settled position of law that
when in defence, the plea of fraud, coercion etc are raised,
it is the duty of the person who raises the plea to prove that
the document is vitiated on those grounds. It is true that
there cannot be any direct evidence of fraud. It has to be
inferred from the circumstances. It is equally true that
fraud cannot be found out by conjectures and surmises. So
it is the imperative duty of the defendant to satisfy the
conscience of the court the vitiating circumstances which
had forced him to enter into an agreement with the plaintiff.
A reading of the document would reveal that while the
defendant was holding the post of Manager, he had
appropriated certain amount which he was legally not
entitled to do and it is for the reimbursement of that amount
basically the document is written. It is only to make the
defendant to pay the amount, the relief of specific
performance also is made. So the trial court really had
understood the importance of the document and therefore
did not grand a decree for specific performance but was
totally convinced about the liability of the defendant to pay
the amount.
5. By raising certain defences available under the
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Contract Act without adducing any evidence what soever to
prove the same, the court cannot jump to the conclusion
merely on the oral testimony of DW1 regarding fraud and
coercion. The defendant is not an ordinary man. He was
a Manager of an institution. He had gone to the Registrar’s
office and had registered the document. After admitting
execution of the same, he had not moved his little finger
thereafter to state that the document is vitiated by coercion
or fraud. Therefore all these circumstances put together
would establish that Ext.A4 is a valid agreement and the
amount mentioned therein is due from the defendant to the
plaintiff.
Therefore the trial court was perfectly justified in
granting the decree. The judgment and decree of the trial
court are confirmed and the appeal is dismissed but I direct
the parties to bear their respective costs.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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A.S.NO.905 OF 1996
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27th day of October, 2010.
J U D G M E N T