IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 RFA.No. 31 of 2003 ------------------------------ OS.2/1999 of SUB COURT, VADAKARA .................... APPELLANT/DEFENDANT ------------------------------------------ CHIKKAPPARATH MANAKKOTAN MOIDU HAJI S/O MOOSA HAJI TRADER, 49 YEARS, VANIMAL AMSOM MAMBILAKKOOL DESOM VATAKARA TALUK BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.DEEPA G. PAL RESPONDENT/PLAINTIFF: ------------------------------------------ THAYYULLATHIL ABDULLA ALIAS KUNHABDULLA S/O KUNHALI, 40 YEARS TRADER, POST BOX NO12648, DUBAI UAE., BY POWER OF ATTORNEY HOLDER PRASEETH, S/O KANARAN, 32 YEARS, KUNUMMAL AMSOM DESOM VATAKARA TALUK ADV. SRI.B.KRISHNAN FOR R SRI.R.PARTHASARATHY FOR R THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010, ALONG WITH WPC NO. 13796 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February 2010 JUDGMENT Basheer, J. These two cases are being disposed of by this common judgment, since the parties are common and the issues involved in them are closely inter related. 2. The appeal is at the instance of the defendant in a suit for recovery of money. The court below decreed the suit filed by the respondent directing the appellant/defendant to pay a sum of Rs.3,22,000/- with interest at the rate of 6% per annum from the date of suit till realisation. During the pendency of the appeal, plaintiff/decree holder initiated Execution Proceedings praying for arrest and detention of the defendant/judgment debtor under Section 51 of the Code of Civil Procedure. The execution court, after holding enquiry, found that the judgment debtor was possessed of means and therefore ordered his arrest and detention. The said order is challenged in the writ petition. 3. The case of the respondent/plaintiff in the suit may be briefly noticed. 4. Defendant had agreed to sell an item of immovable property belonging to him and his wife to the plaintiff within a stipulated time and a portion of the sale consideration was admittedly received by the defendant. R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 2 :: It appears that the transaction did not come through as agreed between the parties. Therefore, on February 1, 1998 plaintiff and defendant executed Ext.X2 agreement incorporating the terms of settlement to give a quietus to the dispute arising out of the above transaction. According to the plaintiff, a sum of Rs.8,13,000/- remained to be paid by the defendant which was reflected in Ext.X2. Thereafter, plaintiff received a sum of Rs.4,31,000/- from the defendant and thus there remained a balance sum of Rs.3,72,000/- to be paid by the defendant. Still later, the plaintiff received a sum of Rs.50,000/- also and thus there remained a balance of Rs.3,22,000/-. The suit was instituted for realisation of the said sum with interest at the rate of 12%. 5. The defendant in his written statement admitted execution of the agreement for sale and also Ext.X2 memorandum of agreement. However, it was contended by him that he had paid off the entire amount to the plaintiff after execution of Ext.X2 agreement. According to the defendant, after making payment of Rs.4,31,000/- referred to in Ext.X2 agreement, the parties had entered into yet another agreement Ext.B1on March 24, 1998. Pursuant to the said agreement, the outstanding balance was paid by cash and also through four cheques. Thus, the defendant contended that the claim made by the plaintiff in the suit was totally unsustainable. 6. The parties did not adduce any oral evidence. However, Exts.A1 to A3 were marked on the side of the plaintiffs and Ext.B1 was marked on R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 3 :: the side of the defendant. Exts.X1 and X2 were also marked in the case. The trial court framed the following issues: 1. Whether Thekkeyil Praseeth is the properly constituted power of attorney holder of the plaintiff? 2. Whether the plaintiff is entitled to get any amount from the defendant in view of the agreement dated 24-3-1998? 3. Whether the plaintiff is entitled to get interest at the rate of 21% per year? 4. Whether the discharge pleaded by the defendant in the written statement is true? 5. Whether there is any cause of action for the suit? 6. Relief and costs? 7. Learned Subordinate Judge, after a careful evaluation of the evidence available on record, held that the defendant was liable to pay a sum of Rs.3,22,000/- to the plaintiff as claimed in the plaint. While doing so, the learned Judge held that the plea of discharge raised by the defendant was wholly untenable. Accordingly, the suit was decreed as indicated above. 8. It is contended by Sri.Lakshminarayanan, learned counsel for the appellant that the court below has egregiously erred in appreciating the content and tenor of the relevant documents, particularly, Ext.B1 agreement which was admittedly entered into between plaintiff and the defendant. Per contra, it is contended by Sri.B.Krishnan, learned counsel for respondent/defendant that the plea of discharge raised by the R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 4 :: defendant was rightly found to be hollow and capricious. The sole purpose of the appellant in filing the appeal is to procrastinate realisation of the fruits of the decree, he submits. 9. As mentioned earlier, there is no dispute with regard to the amount which was found due from the defendant as on February 1, 1998. The specific case of the plaintiff is that after execution of the said agreement (Ext.X2), he had received a sum of Rs.4,31,000/- from the defendant on March 24, 1998 as could be seen from the endorsement made in Ext.X2 itself. In fact the defendant had undertaken to discharge the entire liability under Ext.X2 on or before May 30, 1998. But he did not honour his commitment, though he made a payment of Rs.50,000/- through a cheque dated June 1, 1998. Even after the said payment, a sum of Rs.3,22,000/- remained unpaid. The contention of the defendant is that pursuant to the execution of Ext.B1 agreement on March 24, 1998, he had paid off the entire amount by cash and through cheques as could be seen from the said document. 10. In this context, it may be noticed that in his written statement the defendant had a totally different case. In para 4 of the written statement, it was contended by the defendant that the entire outstanding balance was paid by him to the plaintiffs by cash and through cheques. Significantly, the defendant did not adduce any evidence to corroborate the above contention. He did not have a case that he had obtained any R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 5 :: receipt or acknowledgment from the plaintiff while making payment in cash to the plaintiff, nor did he give any details about the cheques which were allegedly issued by him in discharge of the said liability. It may also be noticed that in Ext.B1 agreement on which heavy reliance has been placed by the learned counsel for the appellant, there is not even a whisper about any of the developments which admittedly took place after cancellation of the sale agreement. Ext.B1 proceeded as though it was a simple agreement indicating the circumstances which persuaded the parties to terminate the proposed agreement for sale. In our view, the appellant meets his Waterloo here itself. There has been absolutely no explanation by the defendant as to how he had discharged the liability. 11. It is true that the defendant has mentioned the number of four cheques in his written statement which according to him he had issued in favour of the plaintiff. According to the plaintiff, he had encashed one of the four cheques and realised Rs.50,000/- as admitted by him in his plaint itself. However, he did not present the remaining three cheques for encashment, since payee was not identified in any one of them. Anyhow, admittedly the plaintiff did not encash the three cheques. 12. Learned counsel for the appellant has raised a contention that the court below committed serious illegality in proceeding as though suit was based on cheques referred to above, though the plaint would indicate otherwise. According to the learned counsel, the suit was based on an R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 6 :: agreement which was admittedly terminated by the parties and therefore the suit claim was by itself unenforceable. We are unable to agree. 13. As mentioned earlier, the defendant had admitted that he was a party to Ext.X2 agreement. It was also not disputed by him that after encashment of one of the four cheques by the plaintiffs, a sum of Rs.3,22,000/- remained unpaid. But as regards this balance, the specific case of the defendant is that he had paid off the same by cash and through cheques. But in support of the above plea of discharge, he had totally failed to adduce any evidence. In our view, on that short ground the defendant is bound to lose and the trial court has rightly held that he is liable to pay the above sum of Rs.3,22,000/- to the plaintiff. 14. Having carefully perused the entire materials available on record, we are totally satisfied that no interference is warranted in the decree and judgment passed by the court below. The appeal fails and it is accordingly dismissed with cost which we quantify at Rs.25,000/-. 15. As indicated earlier, the prayer in the writ petition is to quash the order of arrest passed by the execution court. The learned Subordinate Judge, while considering the evidence adduced by the parties in the execution proceedings, had noticed that the contention raised by the judgment debtor was not tenable. In the course of his examination, the judgment debtor had asserted that he had sold away all the properties even before the institution of the suit. However, he candidly admitted in R.F.A.No.31 OF 2003 & W.P.(C)No.13796 OF 2009 :: 7 :: the course of his cross examination that by sale of one item of property, he had received more than Rs.10,00,000/- from one Rabia (defendant No.4). But according to him, the said amount was paid by him to the plaintiff/decree holder himself. But the fact remains that the above contention could not be substantiated by the judgment debtor. The Execution Court had come to the conclusion, rightly in our view, that the judgment debtor had sufficient means to pay off the decree debt. It may be noticed in this context that the judgment debtor had not obtained any order of stay of execution of the decree even though he had preferred the appeal which we have disposed of in the earlier part of this judgment. Having carefully perused Ext.P1 order passed by the court below, we do not find any reason to interfere with the said order. The writ petition fails and it is accordingly dismissed. Regular First Appeal is also dismissed with cost of Rs.25,000/- as indicated above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes