Anil Kumar A vs Ibrahimkutty V.K
2021 Latest Caselaw 22535 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA,
                             1943
                 OP(C) NO. 1974 OF 2021
  IA 10/2021 IN OS 149/2019 OF II ADDITIONAL SUB COURT,
                   THIRUVANANTHAPURAM
PETITIONER/S:

          ANIL KUMAR A
          AGED 53 YEARS
          S/O.APPUKUTTAN NAIR, RESIDING AT "BHAGAVATHY
          VILASATHU VEEDU", ALATHARAMOODU, KADAKKAL P.O.,
          KOLLAM 691 536

          BY ADVS.
          G.RAJEEV
          REJITH RAJENDRAN
          BINCY JOB
          AJITH KUMAR.S

RESPONDENT/S:

          IBRAHIMKUTTY V.K.
          AGED 49 YEARS
          S/O.KUNJAPPA,     RESIDING    AT    VALIYAVILA,
          KANJUVAYAL, BHARATHIPURAM P.O., KOLLAM 691 312

          BY ADVS.
          P.B.KRISHNAN
          P.B.SUBRAMANYAN
          SABU GEORGE
          MANU VYASAN PETER

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
12.11.2021, ALONG WITH OP(C) 2005/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 OPC Nos.1974 & 2005 of 2021

                                -2-


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
    FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA,
                                1943
                      OP(C) NO. 2005 OF 2021
    I.A.NO.1814/2019 IN OS 149/2019 OF II ADDITIONAL SUB
                    COURT, THIRUVANANTHAPURAM
PETITIONER/S:

             ANIL KUMAR A
             AGED 53 YEARS
             S/O. APPUKUTTAN NAIR, RESIDING AT BHAGAVATHY
             VILASATHU VEEDU, ALATHARAMOODU, KADAKKAL P.O.,
             KOLLAM-691536.

             BY ADVS.
             G.RAJEEV
             REJITH RAJENDRAN
             BINCY JOB
             AJITH KUMAR.S

RESPONDENT/S:

             IBRAHIMKUTTY V.K.
             AGED 49 YEARS
1
             S/O.KUNJAPPA,     RESIDING     AT    VALIYAVILA,
             KANJUVAYAL, BHARATHIPURAM P.O., KOLLAM-691312.
             KERALA FINANCIAL CORPORATION
             VELLAYAMBALAM BRANCH, REPRESENTED BY ITS CHIEF
2
             MANAGER   (SAJITHA    G.NATH),    VELLAYAMBALAM,
             THIRUVANANTHAPURAM - 695 010.
             INDUSIND BANK
             KESAVADASAPURAM BRANCH, REPRESENTED BY ITS
3
             MANAGER,   KESAVADASAPURAM,   THIRUVANANTHAPURAM
             695 004.
 OPC Nos.1974 & 2005 of 2021

                              -3-


             BY ADVS.
             P.B.SUBRAMANYAN
             SHRI.M.R.VENUGOPAL, SC, KFC
             P.B.KRISHNAN
             SABU GEORGE
             MANU VYASAN PETER
             DHANYA P.ASHOKAN
             S. MUHAMMAD ALIKHAN

OTHER PRESENT:

             ADV.LAL K.JOSEPH FOR R3

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
12.11.2021, ALONG WITH OP(C) NO.1974/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 OPC Nos.1974 & 2005 of 2021

                                    -4-


                               JUDGMENT

Dated this the 12th day of November, 2021

The petitioner is the third defendant in

O.S.No.149 of 2019 on the files of the IInd

Additional Sub Court, Thiruvananthapuram. The

averments in the suit filed by the first

respondent are as under;

By virtue of an agreement dated 19.06.2019,

the third defendant had agreed to sell the plaint

schedule property to the plaintiff for a

consideration of Rs.10 Crores. Out of the sale

consideration, Rs.6 Crores was agreed to be paid

to discharge the loans availed by the third

defendant from the first defendant financial

institution and the third defendant bank. The

balance amount of Rs.4 Crores was to be paid to

the third defendant. In terms of the agreement

and towards advance sale consideration, the

plaintiff paid an amount of Rs.2 Crores to the OPC Nos.1974 & 2005 of 2021

first defendant and Rs.1.81 Crores to the third

defendant. After receipt of the amount, the third

defendant retracted from the agreement,

compelling the plaintiff to file the suit seeking

the following reliefs;

"(a) A decree for realisation of Rs.1,89,00,000/- (Rupees One Crore and Eighty Nine Lakh only) with interest @ 15% from the 3rd Defendant and his assets.

(b) A decree for realisation of damages of Rs.10,00,000/- (Rupees Ten Lakh Only) with interest @ 12% from the 3rd Defendant and his assets.

(c) A mandatory injunction directing the 1st Defendant to refund the Plaint 'A' Schedule amount to the Plaintiff with 12% interest per annum from 15.07.2019 till date of refund.

(d) A permanent prohibitory injunction restraining the 1st Defendant from acting on the instruction of 3rd Defendant or for his benefit with respect to Plaint 'A' Schedule amounts and not to convert or adjust or transfer the amount in any manner detrimental to the right and interest of the Plaintiff over the same."

Along with the plaint, the alleged agreement

dated 19.06.2019 is produced as Annexure A1. In

his written statement, the third defendant

contended that the agreement (Ext.P2) produced

along with the plaint is a forgery and that the OPC Nos.1974 & 2005 of 2021

actual agreement entered into between the parties

is for a consideration of Rs.18 Crores (Ext.P4).

Based on such contention, the third defendant

raised a counter claim seeking specific

performance of Ext.P4 agreement. The plaintiff

filed written statement to the counter claim

disputing Ext.P4 and contending that no such

agreement was executed. According to the third

defendant, the original of Ext.P4 is with the

plaintiff and only a photocopy is available with

him. The third defendant therefore filed

I.A.No.1814 of 2019, requiring the plaintiff to

produce the original of Ext.P4 as also the

originals of Annexures A8, A10 and A11 documents

produced along with the plaint. The plaintiff

filed objection reiterating his contention that

there is no agreement, as claimed by the third

defendant and hence, the question of production

of the original of Ext.P4 does not arise. As

regards Annexures A10 and A11, it was pointed out OPC Nos.1974 & 2005 of 2021

that the originals have been produced along with

the plaint. With respect to Annexure A8, which is

a sale deed engrossed in stamp paper worth

Rs.32,08,000/ and submitted for registration

after paying fees of Rs.8,02,080/-, it was stated

that the sale not having taken place, the

document was produced before the revenue and

registration departments for cancellation and

refund of the stamp duty paid. Hence, only

notarized copy of the document is produced along

with the plaint and the plaintiff is not in a

position to produce the original.

2. While so, the third defendant moved this

Court in O.P.(C) No.117 of 2021 seeking

expeditious disposal of the suit. By judgment

dated 08.09.2021, the original petition was

disposed of directing the trial court to pass

orders on all pending interlocutory applications

within one month and to dispose the suit within

five months thereafter. After the judgment, the OPC Nos.1974 & 2005 of 2021

third defendant filed I.A No.10 of 2021 praying

for an order to send Exts.P2 and P4 agreements

along with Annexure A8 referred in the plaint,

for comparison and expert opinion to the Forensic

Science Laboratory, Thiruvananthapuram. By

separate orders dated 18.09.2021, I.A.No.1814 of

2019 seeking production of original documents by

the plaintiff and I.A.No.10 of 2021 for sending

the agreements for expert opinion were dismissed.

O.P.(C) No.1974 of 2021 is filed against the

order in I.A.No.10 of 2021 and O.P.(C) No.2005 of

2021 against the order in I.A.No.1814 of 2019.

3. As far as the order in I.A. No.1814 of

2019 is concerned, I find no reason to interfere,

the trial court being fully justified in having

dismissed the prayer for production of the

originals of Ext.P4 and Annexures A8, A10 and

A11. With respect to Ext.P4 agreement, the

definite stand of the plaintiff is that it is a

concocted document created by the petitioner and OPC Nos.1974 & 2005 of 2021

hence, the respondent is not in possession of the

original of that document. The fact that the

original of Annexure A8 is submitted before the

Revenue/Registration Authorities for cancellation

and refund of stamp duty is not disputed and the

originals of Annexures A10 and A11 have been

produced along with the plaint. Being so, the

prayer for production of originals of those

documents was rightly rejected.

4. Assailing the order in I.A.No.10 of

2021, learned Counsel for the petitioner

contended that the dispute essentially being with

respect to the genuineness of Exts.P2 and P4

agreements, the trial court committed a gross

illegality in refusing to forward those documents

for expert opinion, thereby shutting out the best

evidence. It is argued that even if the

plaintiff's contention of not being in possession

of the original of Ext.P4 is accepted, the

petitioner can let in secondary evidence by OPC Nos.1974 & 2005 of 2021

producing photocopy of Ext.P4. Moreover, with the

advancement of science and technology, it is now

possible for handwriting experts to render

opinion based even on photocopies of documents.

It is contended that no valid legal reason is

stated in the impugned for refusing to grant the

prayer for sending Annexure A1 to the FSL. It is

submitted that remittance of a hefty amount

towards court fee by the petitioner itself is

indicative of the genuineness of his claim.

5. Learned Counsel for the respondent

replied by contending that Annexures A2 to A11

documents substantially proves the execution of

Ext.P2 agreement and the cooked up story of

Ext.P4 being the real agreement, is only an

attempt on the petitioner's part to wriggle out

of his liability. It is contended that, this

Court having directed expeditious disposal of the

suit, the trial court was fully justified in

dismissing the unmerited interlocutory OPC Nos.1974 & 2005 of 2021

applications filed by the petitioner. As regards

Ext.P4, it is submitted that being a photocopy,

there cannot be any comparison or expert opinion

based on that document. Reliance is placed on the

judgment of this Court in The Good Samartian

Charitable Trust v. Samuel and others (O.P.(C)

No.4559 of 2012 - judgment dated 04.01.2013) and

that of the High Court of Andra Pradesh in Bheri

Nageswara Rao v. Mavuri Veerabhadra Rao and

others [AIR 2006 AP 314] in support of the

proposition. It is argued that even if Section 65

of the Evidence Act permits the parties to adduce

secondary evidence, that can only be after

satisfying the statutory requirements. The

question of comparison would arise only if Ext.P4

falls within the ambit of secondary evidence and

is accepted as such by the trial court. Hence,

the trial court was fully justified in rejecting

the prayer for sending Ext.P4 for comparison. OPC Nos.1974 & 2005 of 2021

6. As regards the prayer for obtaining

expert opinion based on the photocopy of Ext. P4

document, I have no doubt that the expert will

not be able to provide any conclusive opinion

based on the photocopy and I am in complete

agreement with the decisions in The Good

Samartian Charitable Trust and Bheri Nageswara

Rao (supra) Even otherwise, admissibility of the

photocopy of Ext.P4, considering it to be

secondary evidence, is yet to be decided. On the

other hand, the prayer for comparison and expert

opinion on Ext.P2 can be allowed, the original

being available in the Court. The learned Counsel

for the respondent submitted that in the event

of Ext.P2 being sent for expert opinion, the

originals of Annexure A2, A9, A10 and A11

documents should also be forwarded. The

submission is stoutly opposed by the learned

Counsel for the petitioner, contending that the OPC Nos.1974 & 2005 of 2021

petitioner is disputing his signatures in

Annexure A9, 10 and 11 documents. I find

substance in the objection, since there cannot be

comparison of one set of disputed signatures with

another set of disputed signatures. At the same

time, if either of the parties is able to produce

the original of Annexure A8, that can be utilised

for the purpose of comparison. The above

discussion leads to the following conclusion.

O.P.(C)No.2005 of 2021 is dismissed.

O.P.(C) No.1974 of 2021 is disposed of, with

the following directions;

(i) The original of the sale agreement dated

19.06.2019 (Ext.P2), produced as Annexure A1,

shall be forwarded to the Government Forensic

Science Laboratory, Thiruvananthapuram for expert

opinion on the genuineness of the signatures of

the petitioner (Anil Kumar A) affixed in that

document.

(ii) The original of Annxure A2 (Consent Deed OPC Nos.1974 & 2005 of 2021

dated 28.06.2019) shall be produced before the

trial court by the first defendant (Kerala

Financial Corporation) within two weeks.

(iii) On receipt of Annexure A2, the trial

court shall forward that document along with the

vakalath, written statement and such other

contemporaneous documents containing the admitted

signatures of the petitioner to the Forensic

Science Laboratory.

(iv) If the original of Annexure A8 (Sale

Deed signed by the petitioner on 16.07.2019) is

produced in court within one month, that document

can also be forwarded.

(v) All documents for comparison and expert

opinion shall be forwarded from the trial court

within one month.

(vi) This Court having fixed a time limit of

six months from 08.09.2021 for disposal of the

suit, earnest efforts shall be taken by the FSL

to submit the expert opinion at the earliest. OPC Nos.1974 & 2005 of 2021

For that purpose a copy of this judgment shall be

made available to the Director, FSL,

Thiruvananthapuram through the District

Government Pleader.

(vii) The plaintiff having come down to

Kerala for the purpose of giving evidence, the

trial court is at liberty to complete the

examination of the plaintiff.

Sd/-

V.G.ARUN JUDGE Scl/ OPC Nos.1974 & 2005 of 2021

APPENDIX OF OP(C) 1974/2021

PETITIONER EXHIBITS THE TRUE COPY OF THE PLAINT DT. 25.7.2019 Exhibit P1 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE AGREEMENT DT. Exhibit P2 19.6.2019 PRODUCED BY THE RESPONDENT THE TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER-CLAIM DT. 15.2.2021 ON THE Exhibit P3 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE AGREEMENT DT. Exhibit P4 19.6.2019 PRODUCED BY THE PETITIONER THE TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER-CLAIM DATED 4.3.2021 ON THE Exhibit P5 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF I.A.NO.1814 OF 2019 DT. Exhibit P6 19.8.2019 THE TRUE COPY OF THE OBJECTION TO EXT. P6 Exhibit P7 DT. 11.10.2019 ON THE FILE OF II-

ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE JUDGMENT DT. Exhibit P8 8.9.2021 IN O.P.(C) NO.117 OF 2021 OF THIS HON'BLE COURT THE TRUE COPY OF I.A.NO.10 OF 2021 DT. Exhibit P9 11.8.2021 THE TRUE COPY OF OBJECTION TO EXT. P9 DT. Exhibit P10 12.8.2021 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE ORDER DT. 18.9.2021 Exhibit P11 IN I.A.NO.1814 OF 2019 ON THE FILE OF II-

ADDITIONAL SUB COURT, THIRUVANANTHAPURAM THE TRUE COPY OF THE ORDER DT. 18.9.2021 Exhibit P12 IN I.A.NO.10 OF 2021 ON THE FILE OF II-

ADDITIONAL SUB COURT, THIRUVANANTHAPURAM OPC Nos.1974 & 2005 of 2021

APPENDIX OF OP(C) 2005/2021

PETITIONER EXHIBITS THE TRUE COPY OF THE PLAINT DATED Exhibit P1 25.7.2019 ON THE FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. THE TRUE COPY OF THE AGREEMENT DATED Exhibit P2 19.6.2019 PRODUCED BY THE RESPONDENT. THE TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER-CLAIM DATED 15.2.2021 ON THE Exhibit P3 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

THE TRUE COPY OF THE AGREEMENT DATED Exhibit P4 19.6.2019 PRODUCED BY THE PETITIONER. THE TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER-CLAIM DATED 4.3.2021 ON THE Exhibit P5 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

THE TRUE COPY OF I.A.NO.1814 OF 2019 Exhibit P6 DATED 19.8.2019.

THE TRUE COPY OF THE OBJECTION TO EXT.P6 Exhibit P7 DATED 11.10.2019 ON THE FILE OF II-

ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. THE TRUE COPY OF THE JUDGMENT DATED Exhibit P8 8.9.2021 IN O.P.(C) NO.117 OF 2021 OF THIS HON'BLE COURT.

THE TRUE COPY OF I.A.NO.10 OF 2021 DATED Exhibit P9 11.8.2021.

THE TRUE COPY OF OBJECTION TO EXT.P9 Exhibit P10 DATED 12.8.2021 ON THE FILE OF II-

ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

THE TRUE COPY OF THE ORDER DATED 18.9.2021 IN I.A.NO.1814 OF 2019 ON THE Exhibit P11 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

THE TRUE COPY OF THE ORDER DATED 18.9.2021 IN I.A.NO.10 OF 2021 ON THE Exhibit P12 FILE OF II-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.