IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 SA.No. 462 of 1997() ------------------------------ AS.7/1992 of SUB COURT, OTTAPPALAM OS.262/1990 of MUNSIFF MAGISTRATE COURT, PATTAMBI .................... APPELLANT (DEFENDANT IN THE TRIAL COURT AND RESPONDENT IN THE LOWER APPELLATE COURT: ------------------------------------------------------------------------------- T.R. VISWANATHAN, S/O.RAMAN, PARUTHUR AMSOM AND DESOM, P.O.PARUTHUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G. SREEKUMAR CHELUR, SRI.C.RAMAN, SMT.M.R.MINI, SMT.PREETHY KARUNAKARAN, SMT.MEENA.A., SRI.JAYKAR.K.S. RESPONDENT (PLAINTIFF IN THE TRIAL COURT AND APPELLANT IN THE LOWER APPELLATE COURT: ------------------------------------------------------------------------------ GOPA PANICKER, SON OF KALARICKAL MADAVIKUTTY AMMA, PARUTHUR AMSOM AND DESOM, P.O.PARATHUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, ADV. SMT.PRABHA R.MENON. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010,THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 462 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010. JUDGMENT The defendant in O.S. 262 of 1990 before the Munsiff-Magistrate Court, Pattambi, who suffered a decree at the hands of the first appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, in connection with a visa transaction to Mundarambath Manu alias Saidalavi the plaintiff had intervened and he undertook to pay a sum of Rs.4,800/- to Manu. The plaintiff would say that as security for the said amount, 40.250 gms of gold ornaments consisting of two bangles, two pairs of jimkies and two rings belonging to the plaintiff were handed over to the defendant on 29.10.1987 in the presence of the mediators to be kept and returned as soon as the money is paid to Manu. The plaintiff would say that he S.A.462/1997. 2 discharged the debts due to Manu and sought return of the gold ornaments. The defendant did not respond. He sent a lawyer's notice. Still there was no response. So the suit was laid claiming return of the gold ornaments or its value. 3. The defendant resisted the suit. It is pointed out by him that the allegations in the plaint are untrue and contrary to facts. According to him, a person named Majeed had visa business and the plaintiff was his agent. Manu referred to by the plaintiff paid Rs.11,500/- to the plaintiff for arranging visa. But the plaintiff could not procure visa for him. Manu sought return of his amount. The defendant would say that after mediation, gold ornaments belonging to Majeed obtained by the plaintiff was entrusted to the defendant as security for the amount due to Manu. The agreement arrived at was that money due to Manu will be paid within two months and the gold ornaments will be returned to the plaintiff. If money was not paid, the gold ornaments were to the delivered to Manu. In token of having received gold ornaments, Ext.A1 was executed by S.A.462/1997. 3 him. According to him, the money was not paid by the plaintiff and Manu demanded the gold ornaments and it was handed over to him. On receiving notice from the plaintiff, he sent a reply notice stating the above facts. He therefore prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and the documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendant examined D.Ws.1 and 2 and had Ext.B1 marked. Ext.X1 is the third party exhibit. 5. The trial court was not impressed with the case put forward by the plaintiff and it had no support from the evidence in the case and also the trial court felt that the case put forward by the plaintiff was highly improbable and the version given by the defendant is more probable. Accordingly, the suit was dismissed. 6. The lower appellate court by a strange method of reasoning decreed the suit as follows: S.A.462/1997. 4 “In the result, the appeal is allowed and a decree is passed in O.S. 262/90 of the Munsiff- Magistrate 's Court, Pattambi directing the defendant to hand over the gold ornaments to the plaintiff within a month or to pay a sum of Rs.12.598.13 with interest thereon at the rate of 6% per annum from the date of suit till the date of payment. But the defendant is entitled to get Rs.4800/- from the plaintiff. The defendant is permitted to set off that amount from the amount due to the plaintiff. The appellant is entitled to get the costs of the proceedings.” 7. It is the said decree that is assailed before this court. 8. The following questions of law have been raised in this Second Appeal: “(A) Is not the suit liable to be dismissed on the finding of the lower appellate court that the plaintiff has not discharged his liability? (B) Is the interpretation placed by the court below on Ext.A1 correct? © Was the court below justified in holding that even if the plaintiff failed to discharge his liability S.A.462/1997. 5 he is entitled to get back the ornaments given as security? (D) Is not the judgment of the court below vitiated due to shifting of the burden of proof on the defendant? (E) Is not the judgment of the court below vitiated due to shifting of the burden of proof on the defendant? (F) Was the court below justified in not adverting to the admissions made by P.W.1 and the inconsistent stand taken by him? (G) Was the court below right in upsetting the finding of the trial court which was based on the demeanour of the witnesses?” 9. Learned counsel appearing for the appellant would point out that the lower appellate court has grossly erred both on facts and in law. The lower appellate court has not cared to understand the case put forward by the respective parties and has decreed the suit based on conjectures and surmises. The lower appellate court was simply carried away by the fact that since Ext.A1 does not mention about the handing over, the contentions put S.A.462/1997. 6 forward by the defendant need not be gone into. The definite case put forward by the defendant, according to learned counsel, was that he was only the holder of gold ornaments as security for the transaction between the plaintiff and Manu. Learned counsel invited the attention of this court to the fact that all that has stated is that the plaintiff had paid Rs.4,800/- due to Manu and had demanded gold ornaments from the defendant. Curiously enough, the lower appellate court finds the said claim of payment is untrue and says that the amount may be deducted from the value of gold ornaments due to the plaintiff. According to learned counsel, the findings and conclusions are mutually inconsistent and contrary. 10. Learned counsel appearing for the respondent on the other hand pointed out that the lower appellate court has considered the matter in the right perspective and has evaluated the evidence in the proper perspective. The principal document is Ext.A1 and Ext.A1 does not contain what has been stated by the defendant in his written S.A.462/1997. 7 statement and in his evidence. He was simply entrusted with the gold ornaments and there was no understanding while executing Ext.A1 that money had to be paid to Manu or if money had not been paid, the gold ornaments had to be handed over. It was therefore contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 11. After going through the records and hearing the parties, there seems to be some substance in what the learned counsel for the appellant had stated before this court. It is true that the case of the plaintiff was that only an amount of Rs.4800/- was due, but the defendant had in his written statement had clearly stated that money due to Manu was Rs.11,500/-. It is significant to notice that even going by the plaintiff's evidence when he was examined as P.W.1 he deposed that there were mediators for the transaction and as suggested by the mediators that the transaction was entered into. Surprisingly enough as noticed by the trial court, none of the mediators were S.A.462/1997. 8 examined. If as a matter of fact, it was as a result of mediation that the entrustment of gold ornaments was taken place, the best evidence the plaintiff could adduce was to examine the mediators to reveal the true transaction. 12. It is significant to notice that in the plaint it is specifically averred that a sum of Rs.4,800/- had been paid to Manu, which was due to him and therefore the defendant could no longer keep the gold ornaments with him and had to return the same. 13. It must be noticed that the plea is one of discharge. The burden is on the plaintiff to prove the same. 14. Before going further, it may be noticed that Manu, who was examined as D.W.2 had admitted that he had received gold ornaments from the defendant in consequence to the settlement arrived at between him and the plaintiff. Even after Manu had admitted receipt of gold ornaments, and even when that fact was disclosed in the written statement by the defendant, the plaintiff did not feel it necessary to make Manu a party to the suit. Manu, before S.A.462/1997. 9 court, had categorically stated that he had not received the amount due to him and the amount due to him is Rs.11,500/-. 15. It is true that going by Ext.A1 document, all that is stated is that in connection with a visa for Saidalavi that the defendant had received 40.250 grms of gold. It is also true that there is nothing in Ext.A1 as such to show that if the amount is not paid to Manu, Manu is entitled to collect the gold ornaments from the defendant. It is also true that there is no authorisation as contained in Ext.A1 enabling the defendant to hand over the gold ornaments to Manu. 16. One cannot omit to note that the definite stand taken by the defendant was that it was not Rs.4,800/-, but it was Rs.11,500/- that was due to Manu. It must be noticed that if as a matter of fact only Rs.4,800/- was due to the plaintiff, it was unnecessary to entrust so much of gold ornaments to the defendant. In fact the plaintiff has conceded that the value at the time of entrustment will be S.A.462/1997. 10 over Rs.10,000/-. One fails to understand as to why the gold ornaments were entrusted to the defendant to simply keep it until the plaintiff seeks return of the same. Obviously there must have been some understanding holding the same. It is here that the evidence of D.W.2 assumes importance. D.W.2 has stated that he had not received the amount due from the plaintiff and he had taken possession of the gold ornaments from the defendant. 17. In fact in the nature of the contentions taken by the defendant, it is evident that Manu was a necessary party to the suit. For reasons best known to the plaintiff, he does not feel it necessary to proceed against Manu. 18. P.W.2 has stated that he had witnessed the payment of Rs.4,800/- to Manu. Both the courts including the lower appellate court, which passed a decree has disbelieved the claim of payment of Rs.4,800/- to Manu. If that be so, the result is that the purpose for which the gold ornaments had been handed over to the defendant has not been achieved. On the other hand Manu has come forward S.A.462/1997. 11 to give evidence that the amounts due to him have not been paid and therefore he had received the gold ornaments. Merely because Ext.A1 does not contain an authorisation enabling the defendant to hand over the gold ornaments to Manu by itself may not be a ground to hold against the defendant. A reading of Ext.A1 does show that it was in relation to visa transaction that both the plaintiff as well as Manu were engaged. Ext. B1 document shows that Manu had issued a receipt to the defendant showing that he had received the gold ornaments. 19. Quite strangely, the lower appellate court disbelieved both Manu and the defendant regarding payment. One fails to understand under such circumstances how without Manu on the party array the suit could have been decided. On the other hand the trial court has considered the entire aspects and had come to the conclusion that in all probabilities there was an agreement as contended by the defendant. S.A.462/1997. 12 20. At any rate, it is not possible to uphold the view taken by the lower appellate court for want of evidence and also for the reason that Manu is a necessary party to the suit and without making Manu a party to the suit, no effective relief can be granted to the plaintiff. For the above reasons, this appeal is allowed, the impugned judgment and decree are set aside and the judgment and decree of the trial court stand restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.