IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 AS.No. 344 of 1996(A) ------------------------------ OS.619/1992 of PRINCIPAL SUB COURT, KOLLAM ...................................................................................... APPELLANT / DEFENDANT: --------------------------------------- S. RAJAN, S/O. LATE SUBRAMANYA IYER, HINDU, AGED 40 YEARS, CLERK, STATE BANK OF TRAVANCORE, BEACH ROAD BRANCH, KOLLAM RESIDING AT GANAMOORTHY BHAVAN, KADAPPAKKADA, KOLLAM. BY ADVS. SRI.P.R.VENKATESH SRI.P.R.RAJA RESPONDENT / PLAINTIFF: -------------------------------------- 1. A.M. SAMUEL, S/O. M.M. MATHAI, CHRISTIAN AGED ABOUT 62 YEARS, RESIDING AT ASSARIATHU VEEDU, KADAPPAKKADA, KOLLAM. (* DIED.) * ADDL. R2 & R3 IMPLEADED 2. CHELLAMMA, W/O. A.M. SAMUEL, RETIRED C.S. TELEPHONES, KOLLAM, RESIDING AT ASSARIATH VEEDU, (THUMPAMON EARAM) KADAPPAKKADA, KOLLAM. 3. SELINA, D/O. A.M. SAMUEL, RESIDING AT ASSARIATH VEEDU, -DO- -DO- * THE ABOVE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT ARE IMPLEADED AS ADDL. R2 AND R3 VIDE ORDER DATED 14.09.2001 ON CMP NO. 5017/2000. R2 & R3 BY ADVS. SRI.R.ANILKUMAR SRI.A.M.THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N ...2/- AS.No. 344 of 1996 -2- ORDER ON C.M.P. NOS. 5280/1996 & 4222/1998 IN AS NO. 344/1996 DISMISSED 30/08/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE M.N M.N. KRISHNAN, J. ........................................... A.S.NO.344 OF 1996 ............................................. Dated this the 30th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kollam in O.S.No.619/1992. The suit is one for realisation of money and the trial court has granted a decree in favour of the plaintiff for a sum of Rs.46,200/= with future interest at 18%. It is against that decision, the appeal is filed by the defendant. 2. The brief facts necessary for the disposal of the appeal are stated as follows: Admittedly to start with, the plaintiff and the defendant had entered into an agreement for sale of the property of the plaintiff for a consideration of Rs.1,80,000/=. According to the plaintiff, on the date of the agreement, Rs.5,001/= was given as advance. Subsequently on 30.9.1989 and 14.10.1989 cheques for Rs.5,000/= each were given and that had been encashed. Thus the plaintiff has received Rs.5,001/= by way of advance. Subsequently the bank had issued a cheque for : 2 : A.S.NO.344 OF 1996 Rs.1,35,000/= making of Rs.1,50,000/=. 3. It is the case of the plaintiff that for Rs.30,000/=, the defendant initially gave a promissory note and subsequently issued a cheque and at that time, the promissory note was returned and the cheque was presented for encashment. The cheque was not honoured and hence, the suit for realisation of Rs.30,000/= with interest. 4. On the other hand, the defendant would contend that though there was an agreement for sale for a consideration of Rs.1,80,000/=, the defendant felt that the consideration was high and thereafter by mediation, they reduced the consideration to Rs.1,40,000/= and thereby the plaintiff through bank paid Rs.1,35,000/= and the advance of Rs.5,000/= for making it a total consideration of Rs.1,40,000/=. The defendant would contend that since the plaintiff had encashed two cheques for Rs.5,000/= each Rs.10,000/= was excess in his hand and therefore, he has filed the suit for recovery of that amount. It is now fairly admitted that the said suit had ended in dismissal. The attempt of the defendant is to project by virtue of the : 3 : A.S.NO.344 OF 1996 subsequent agreement and by virtue of the recitals in the sale document that consideration is only Rs.1,40,000/= and having received Rs.1,40,000/=, the plaintiff is not entitled to claim any amount towards the property transaction. 5. On the other hand, the learned counsel for the plaintiff would submit before me that really the sale consideration was never reduced, but in order to entitle the defendant to get bank loan, the parties agreed to write another agreement just for the purpose of giving it to the bank showing it as Rs.1,40,000/=. The evidence has been let in and nowhere the defendant has got a case that first agreement has been cancelled. The second agreement which is produced as Ext.B6 also does not show that it has been cancelled. 6. The case of the defendant is that two cheques were given for Rs.5,000/= each and a promissory note was executed and that a cheque was also given as security for the transaction. The trial court had elaborately considered the matter. I do not know why in a sale of property, security should be given to the plaintiff when he is already : 4 : A.S.NO.344 OF 1996 having his property in his possession. There is no case that by virtue of the agreement the defendant has been put in possession of the property. So only on receipt of the balance consideration the sale deed is to be executed and therefore, the story developed by the defendant that he had given two cheques for Rs.5,000/= each and a promissory note as security for the transaction appears to be totally unacceptable and untrustworthy. Further the defendant in this case is not an ordinary illiterate person. He is a cashier of a bank. Therefore I am not prepared to accept the version given by the defendant. 7. The plaintiff has got a case that when a cheque was given for Rs.30,000/=, he had returned the promissory note to the defendant. We find that the said promissory note being produced by the defendant in this case. Therefore the case spoken to by PW1 appears to be more probable and acceptable. It is true that when consideration is shown in a document, it has got its on impact. But it is not unknown in property transactions that the real consideration for properties are very rarely shown in the document of title. : 5 : A.S.NO.344 OF 1996 So evidence showing the real purport, intention and contract between the parties can be looked into and for that purpose, evidence is also permissible. 8. The case of the defendant that consideration is only Rs.1,40,000/= falls to the ground on the following points also. If really the transaction was only for Rs.1,40,000/=, there was no necessity for him to request the bank to issue a cheque for Rs.1,35,000/= for the reason that in the month of September and October itself, the plaintiff had encashed two cheques and received Rs.10,000/=. That is why it is often stated that men may lie, but circumstances will never lie. So the encashment of two cheques coupled with issuance of cheque of Rs.1,35,000/= besides the advance of Rs.5,000/= makes it abundantly clear that the sale consideration is not for Rs.1,40,000/=. Then, there are only two cases; either it Rs.1,40,000/= or Rs.1,80,000/=. When a cheque of Rs.1,40,000/= falls to the ground and the attended circumstances support the case of the plaintiff including the original agreement for sale, there cannot be any difficulty in accepting the contention that sale price : 6 : A.S.NO.344 OF 1996 was Rs.1,80,000/=. Return of promissory note on the issuance of cheque which when presented got dishonoured also indicates the attitude of the defendant. The defendant sent a very strong reply but later withdrew the same . So he had in his mind what is the real transaction. Therefore I hold that the trial court was perfectly justified in holding that the plaintiff is entitled to the amount towards balance sale consideration. 9. Now let me see about the interest. The defendant was bound to pay the entire sale consideration at least at the time of assignment, that is on 18.10.1989. The interest of 18% granted by the trial court appears to be excessive and therefore, I feel that interest of justice can be met by directing the defendant to pay interest at the rate of 12% from 18.10.1989 till 30.11.1992 and at the rate of 6% from 1.12.1992 till realisation. 10. In the result, the appeal is partly allowed and a revised decree is passed as follows: The plaintiff is given a decree for realisation of Rs.30,000/= with 12% interest on the said amount from : 7 : A.S.NO.344 OF 1996 18.10.1989 till 30.11.1992 and at the rate of 6% interest on the said amount of Rs.30,000/= from 1.12.1992 till realisation from the defendant with proportionate costs. Parties are directed to bear their respective costs in the appeal. It is made clear that additional respondents 2 and 3 are entitled to receive the amount when it is tendered or execute the decree for realisation of the amount. M.N. KRISHNAN, Judge. cl : 8 : A.S.NO.344 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.344 OF 1996 ............................................. 30th day of August, 2010. J U D G M E N T