IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 RSA.No. 521 of 2008 ----------------------- AS.28/2005 of SUB COURT, MANJERI OS.358/1997 of MUNSIFF COURT, MANJERI .................... APPELLANT/APPELLANT/DEFENDANT ----------------------------------------- T.P.JALEEL, S/O MUHAMMED, THEKKUMPURATH HOUSE, PULLIPPADAM AMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- POOVATHIKUDIL NARAYANAN, S/O NEELAKANDAN, KARAKUNNU AMSOM DESOM, MALAPPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 521 of 2008 -------------------------------------------------- Dated this the 18th July 2008 JUDGMENT The defendant in a suit for recovery of moneys alleged to have been received by him from the respondent for procurement of Visa and against whom decree has been passed concurrently by the courts below for repayment of the said amount has come up in appeal before this court. 2. The respondent-plaintiff filed O.S. No 358 of 1997 before the Munsiff's Court, Manjeri praying for a decree for realisation of money from the defendant inter alia, on the allegation that the defendant received an amount of Rs 35,000/- from him on 15.05.1998 and a further amount of Rs 15,000/- on 06.06.1995 promising to arrange Visa to him for the job of a plumber in Saudi Arabia. It is his case that Visa was arranged but the plaintiff who had gone to Gulf countries on 14.06.1995 could not find out the employer at Saudi Arabia as promised by the defendant and no such institution could be seen at the address at Gassim where the defendant had given the plaintiff to understand that he would be provided with employment. It is his case that a forged Visa was given to him by the defendant and the plaintiff RSA 521/08 2 was constrained to return to the native place on 07.08.1995 spending an amount of Rs 12,904/- for his to and fro journey. On the above allegations he prayed for a decree for repayment of the amount of Rs 50,000/- as also an amount of Rs 12,904/- being the amount spent for his futile journey to Gulf countries with interest at 18% per annum. 3. The appellant-defendant resisted the suit by filing written statement wherein he inter alia, contended that a prior suit had been filed as O.S. No 305 of 1995 before the same court but that was dismissed for non payment of balance court fee and therefore the present suit is barred by res judicata and is hence not maintainable. The courts below repelled the said contention and no argument was advanced; before me assailing the findings of the courts below on that aspect. The other contentions in the written statement are that he did not receive any amount from the plaintiff as alleged for procurement of any Visa and the allegations in the plaint are incorrect. However he further contended that arrangement of Visa can be done only in an illegitimate manner and the plaintiff having spent the amount for an illegitimate act he cannot seek for the refund of the same by virtue of the provisions contained in Section 23 of the RSA 521/08 3 Contract Act. On the above pleadings the trial court raised necessary issues for trial and considering also the evidence adduced at trial which consisted of oral evidence of P.Ws 1 and 2 and D.W.1 and documentary evidence, Exts A1 to A5 and Exts. B1 and B2, decreed the suit in part allowing the respondent-plaintiff to recover from the appellant-defendant an amount of Rs 50,000/-, that being the amount paid to him for procurement of Viza, with interest at the rate of 12% per annum from the date of plaint till date of decree and thereafter with interest at 6% per annum till realisation. Appeal filed before the first appellate court was also dismissed confirming the decree of the trial court and hence this Regular Second Appeal. 4. The contention of the defendant is that he does not know the plaintiff and that there was no transaction at all with the plaintiff. When the defendant was examined as DW-1 he deposed that he did not make any enquiries about the plaintiff who had filed a suit against him. But however, the suggestion put forward by the defendant at the time of cross-examination of P.W.1 was found by the courts below as falsifying the case of the defendant that he did not know the plaintiff. The question put in cross-examination to P.W.1 was as to whether he had not received certain amounts from the defendant to RSA 521/08 4 get “iqama” from the Government of Saudi Arabia suggesting that the plaintiff has received back some amount from the defendant for the purpose of making payment to the Government of Saudi Arabia for getting “iqama”. 5. It is the case of the plaintiff that the defendant agreed to procure Viza and obtained Rs 35,000/- from him on 15.05.1995 and another sum of Rs 15,000/- on 06.06.1995 through one E.K. Saidalavi. Ext. A1(a) receipt was produced by the plaintiff and that showed that the defendant acknowledged receipt of Rs 35,000/- on 15.05.1995 and one E.K. Saidalavi had obtained a sum of Rs 15,000/- on 06.06.1995. The said document was produced as item No.2 along with the plaint. Still in the written statement nothing is made mentioned of as regards Ext A1(a) apart from contending that there was no agreement between the plaintiff and the defendant. P.W.1 the plaintiff and P.W.2 the attester to Ext A1 (a) have deposed about the payment of Rs 35,000/- to the defendant and another sum of Rs 15,000/- to the defendant through one Saidalavi who is also an attestor to Ext A1(a), whereunder the receipt of the amounts by the defendant is acknowledged. The said Saidalavi was not examined though he was very much in the locality as seen observed in the RSA 521/08 5 judgment of the trial court. The trial court also observed that the defendant had no case that P.W.1 plaintiff or even P.W.2 attestor who has given evidence against him was having any animosity towards him and there is not even a suggestion made as to why the plaintiff should be prompted to file such a false suit if at all the defendant had not received the amount from him. The courts below also observed that as evident from Ext A4 medical report, the plaintiff had also undergone medical check up on 15.05.1995 the date on which under Ext A1 (a) receipt the defendant is stated to have received Rs 35,000/-. This also was taken as a strong circumstance to believe the case of the plaintiff that the defendant had obtained amounts from the plaintiff to arrange Visa for him to go abroad as alleged. It is seen from the judgment of the trial court that a contention had been advanced on behalf of the defendant by his counsel that even assuming that the defendant had obtained amounts as stated by P.W.1 the defendant is not liable to return the amount since plaintiff had not performed his part of the oral agreement as plaintiff had not waited in Saudi Arabia till 31.08.1995 for getting the job when there is endorsement in his pass book “employment within three months”. Admittedly the plaintiff returned RSA 521/08 6 from Saudi Arabia on 07.08.1995 and it is therefore that such a contention was advanced. According to P.W.1 he was forced to leave Gulf country since he was not having any job. However the contention advanced on behalf of the appellant/defendant is not one which lies in the mouth of the defendant as his case was one of total denial and he cannot bank on any circumstance which entitles him to avoid repayment of the amount when receipt by him of amount as alleged by the plaintiff but denied by him is established on evidence to be true and that the defendant's contention is false. Further the contention that is advanced before me by the learned counsel for the appellant is that the transaction was one opposed to public policy and hence the amount cannot be returned to the plaintiff as it is barred by Section 23 of the Indian Contract Act. I am unable to accept the said contention as well, as procuring a Visa for a job abroad, if it is not by fraudulent means, or defeating the provisions of law is not something which is forbidden by law and that the defendant has no case that he was receiving amounts from the plaintiff to procure Visa by some illegal means forbidden by law. There is also no pleading in the written statement that payment of any amount for getting Visa is opposed to public policy. As found by RSA 521/08 7 the courts below the defendant has acknowledged receipt of Rs 35,000/- as evidenced by Ext A1(a) and it further showed that Saidalavi who was sent by the defendant with Ext A2 letter for receiving the balance amount had acknowledged receipt of the balance amount of Rs 15,000/- and the witness to Ext a1 (a) also was examined as P.W.2. Plaintiff has proved on evidence that the defendant could not arrange for him a job in the Gulf country and he was forced to return for reason of inability to get a job. In the circumstances the decree of the trial court directing repayment of the amount of Rs 50,000/- to the plaintiff with interest at 12% per annum till date of decree and thereafter with interest at 6% per annum does not deserve to be interfered with at all and there is no question of law and much less any substantial question of law as is attempted to be formulated arising for consideration by this court in this R.S.A. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 18/07/2008 en [true copy]