IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 SA.No. 632 of 1999(A) --------------------- AS.90/1994 of ADDL.DISTRICT COURT,ALAPPUZHA. OS.27/1990 of PRINCIPAL SUB COURT,ALAPPUZHA .................... APPELLANT(S): -------------- 1. VASU SREEDHARAN, THEKKEATTATHU VEETTIL, KARUR MURI, PURAKKADU VILLAGE. 2. MOHANLAL PAZHAYAPURAKKATTU VEETTIL, KAROOR MURI, PURAKKADU. BY ADV. SRI.M.V.MATHEW RESPONDENT(S): ----------------------- MADHAVAN RAVI KAYAMKULACKARAN PURAYADATHIL, THOTTAPPALLY MURI, PURAKKAD, ALAPPUZHA. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R1 SRI.P.J.JOSEPH FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.632 OF 1999 -------------------------------- Dated this the 14th day of September 2010 JUDGMENT The defendants in a suit for money are the appellants. The second appellant/second defendant is the son-in-law of the first appellant/first defendant. The second defendant promising to provide a visa to the plaintiff/respondent which would enable him to secure an employment abroad collected from him a sum of Rs.20,000/-, but, the promise was honoured only in its breach, was the case of the plaintiff to claim refund of that amount. Both the defendants filed a joint written statement contending that a sum of Rs.5,000/- alone was collected by the second defendant, admittedly, with a promise to provide a visa to the plaintiff for getting employment abroad. The plaintiff, in association with some others, after keeping the defendants in wrongful restraint, got from them a document styled as an agreement undertaking to repay a sum of Rs.20,000/- as if such sum had been collected from the plaintiff, was the defense raised. 2. The trial court, on the materials tendered by both sides, was inclined to accept the contention raised by the defendants that only a sum of Rs.5,000/- was collected by the second defendant from the plaintiff. In that view of the matter, a decree S.A No.632 OF 1999 - 2 - was granted in favour of the plaintiff only for a sum of Rs.5,000/- of the suit claim for Rs.20,000/-. Plaintiff preferred an appeal to the extent he was aggrieved by the declining of the sum claimed under his suit. The first appellate court, after reappreciation of the materials tendered, differed from the views taken by the trial court and granted a decree to the plaintiff as canvassed in his suit. Impeaching the modification so made under the decree passed by the first appellate court in allowing the suit claim as prayed for by the plaintiff, the defendants have preferred this appeal. 3. I heard the counsel on both sides. The first appellate court has misappreciated the materials on record to differ from the conclusion reached by the trial court is the submission of the learned counsel appearing for the appellants/defendants. Though the plaintiff has produced Ext.A4, a certificate from a bank to show that he had collected two Demand Drafts for sums of Rs.8,000/- and Rs.7,000/- respectively, no documentary evidence was tendered in the case to show that such drafts had been handed over to the second defendant, as alleged to sustain the suit claim, is the further submission of the learned counsel for the appellants. When there was no convincing evidence proving the S.A No.632 OF 1999 - 3 - case of the plaintiff that there was a further payment of Rs.15,000/- either by way of drafts or otherwise to the second defendant, and that too, where both the courts, on the materials placed, found some merit in the defence set up by the defendants that the creation of Ext.A1 agreement was under such circumstances which would indicate that the defendants were under some sort of confinement when such a document was obtained from them, the first appellate court was not at all justified in interfering and modifying the decree passed by the trial judge, who alone had the opportunity to watch the demeanour and deportment of the witnesses, is the submission of the counsel for the appellants. The decree of the trial court granting the plaintiff the sum of Rs.5,000/-, the liability of which alone was admitted by the defendants, alone is allowable on the facts and circumstances presented and materials produced, and, so much so, the decree rendered by the first appellate court awarding the suit claim as such, according to the counsel, is liable to be set aside. Per contra, the learned counsel appearing for the plaintiff inviting my attention to the materials tendered, more particularly Exts.A4, A5 and X1, contended that the suit claim canvassed by the plaintiffs has been proved by convincing S.A No.632 OF 1999 - 4 - evidence. No error of law, leave alone any substantial question of law, has been raised in the appeal to impeach the finding arrived by the first appellate court, which is the final authority on disputed question of facts involved, is the further submission of the counsel to contend that no interference with the decree of that court is called for. 4. Having regard to the submissions made by the counsel on both sides with reference to the judgments rendered by the courts below, the only question that require to be looked into is whether the decreeing of the suit, in its entirety, by the lower appellate court modifying the decree of the trial court limiting it to a sum of Rs.5,000/- only after reappreciating the materials on record, suffers from any legal infirmity warranting interference by this court. In analysing that question, the admitted back drop of the case that the transaction giving raise to the suit claim was on the basis of a promise extended by the second defendant to provide an employment visa on payment of sum cannot be ignored at all. The defendants have admitted that a sum of Rs.5,000/- was collected from the plaintiff by the second defendant on such promise. A further sum of Rs.15,000/- was later collected and it was paid by bank drafts to the 2nd defendant S.A No.632 OF 1999 - 5 - is the case of the plaintiff, which, however, was denied by the defendants. Ext.A1 agreement was produced by the plaintiff to prove that there was such collection by the second defendant and also undertaking of both the defendants to repay such sum. Creation of that document was impeached by defendants contending that it was obtained by keeping them under wrongful restraint. Both the courts, it is seen, were inclined to hold that the contention so canvassed by the defendants cannot be brushed aside as totally meritless. However, no definite finding is entered by the lower appellate court as to whether Ext.A1 agreement cannot be acted upon as having been the product arising from illegal and vitiated circumstances. Irrespective of the validity of Ext.A1, whether it was obtained from the defendants under a vitiating circumstance or not, on the materials placed, it is seen that the case canvassed by the plaintiff that a sum of Rs.20,000/- had been collected from him on the promise to provide him an employment visa by the second defendant is more probable and acceptable. Plaintiff promised with such an employment visa, it has come out , went to Bombay, stayed there for quite sometime and, later, returned when the promise was honoured only in its breach by the second defendant. It is ridiculous to imagine that S.A No.632 OF 1999 - 6 - the second defendant promised to provide an employment visa to the plaintiff on getting a paltry sum of Rs.5,000/-. The case of the plaintiff as deposed by him that when he went over to Bombay, the demand drafts for Rs.15,000/- handed over to the second defendant had been found trust worthy deserving acceptance, by the lower appellate court. The letter sent by first defendant, (Ext.X1) to PW3, wherein the liability for such sum collected is admitted corroborates the case of the plaintiff. Though the first defendant had disputed the letter Ext.X1, in the light of the evidence of PW3, to whom it was sent and also that of the plaintiff as well, its genuineness need not be doubted. In Ext.A5 letter sent by the second defendant to the plaintiff, the liability towards the sum collected for providing the visa is specifically adverted though the sum was not mentioned. A reading of Ext.A5 would indicate that the second defendant at the point of time when he sent the letter was carrying on a business or activity of sending people abroad providing them employment visas. The expenses incurred by him in connection with the hospital treatments, flight expenses etc. of the persons who approached him for visa, stated in his letter (Ext.A50 is a tell tale circumstance indicating that he was not doing such activity as charity, but, only after collecting S.A No.632 OF 1999 - 7 - substantial sum from such persons who desired to go abroad getting employment visa from him. The case of the defendants that the second defendant had collected only a sum of Rs.5,000/- from the plaintiff, in the light of the materials produced by the plaintiff, especially Exts.A4, A5 and X1, is found to be unworthy of any merit. The lower appellate court has rightly and correctly come to the conclusion, after reappreciating the evidence, that a sum of Rs.20,000/-, as alleged by the plaintiff, had been collected by the second defendant, and entire sum thereof is liable to be refunded. There is no error or infirmity in the finding so arrived by that court for granting the decree for such sum in modification of the decree passed by the trial court. The appeal is devoid of any merit, and, it is dismissed with costs of the respondent. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// vdv P.A to Judge