IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 AS.No. 905 of 1996(B) -------------------------- OS.62/1989 of SUB COURT, MAVELIKKARA .................... APPELLANT(S)/DEFENDANT --------------------------------- PURUSHOTHAMA KURUP, PUTHOOR VEEDU, RAMAPURAM MURI, KEERIKKAD VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S)/PLAIANTIFF ----------------------------------- ISWARIYA PRADAYANI, N.S.S. KARAYOGAM NO.1059, RAMAPURAM VADAKKU, KEERIKKAD, REPRESENTED BY PRESIDENT SANKARANARAYANAN PILLAI BY ADV. SRI.P.S.KRISHNA PILLAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.905 OF 1996 ............................................. 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 : 2 : A.S.NO.905 OF 1996 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 : 3 : A.S.NO.905 OF 1996 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 : 4 : A.S.NO.905 OF 1996 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 : 5 : A.S.NO.905 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.905 OF 1996 ............................................. 27th day of October, 2010. J U D G M E N T