Premarajan V vs Shijul.C
2024 Latest Caselaw 29445 Ker

Kerala High Court

Premarajan V vs Shijul.C on 17 October, 2024

                                                  2024:KER:77729

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

   THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946

                         RSA NO. 424 OF 2024

     AGAINST THE JUDGMENT & DECREE DATED 31.05.2024 IN AS NO.34

OF 2023 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II ARISING OUT

OF THE JUDGMENT & DECREE DATED 25.11.2022 IN OS NO.104 OF 2021

ADDITIONAL SUB COURT,KOZHIKODE

APPELLANT/ 2ND DEFENDANT:

          PREMARAJAN V
          AGED 51 YEARS
          S/O VELLIYAPARAMBIL RAMANKUTTY, MEETHALACHALIL HOUSE,
          KOTTAMPARAMBA(PO), CHELAVOOR VILLAGE, KOZHIKODE
          TALUK, KOZHIKODE DISTRICT, PIN - 673008

          BY ADVS.
          B.ANANTHU
          E.T.JITHEENDRAN



RESPONDENTS/PLAINTIFF:

SHIJUL.C AGED 35 YEARS S/O LATE C. SANTHOSH KUMAR, CHIRAKKAL(H), MALAPARAMBA, CHEVAYUR AMSOM, DESOM KOZHIKODE TALUK, KOZHIKODE, PIN - 673 009

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGM ENT

1. The 2nd defendant in a suit for realization of money is the

appellant. The suit was decreed against the 2 nd defendant

ordering to pay Rs.10,00,000/- with interest at the rate of

6% p.a from the date of suit till realization holding that, the

father of the plaintiff, Santhosh Kumar, paid an amount of

Rs. 10,00,000/- to the 2nd defendant as per Ext.A2

Agreement dated 03.06.2020. Though the 2 nd defendant

filed an Appeal before the First Appellate Court, the First

Appellate Court dismissed the same, confirming the

judgment and decree of the Trial court.

2. As per the plaint allegations, the plaint schedule property

belongs to the 1st defendant who is the sister of the 2 nd

defendant and the 1st defendant executed Ext.A1

Agreement for sale in favour of the 2nd defendant and on

the strength of the said Ext.A1 Agreement, the 2 nd

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defendant executed Ext.A2 Agreement for sale with

Santhosh Kumar, who is the father of the plaintiff.

3. The defendants filed written statement jointly opposing the

suit prayers contending that the 2nd defendant has no

authority to enter into an Agreement for sale with respect

to the plaint schedule property. Santhosh Kumar did not

pay Rs.10,00,000/- to the 2nd defendant as alleged in the

plaint. The Agreement relied in the plaint is false and

fabricated.

4. I heard the learned Counsel for the appellant. The learned

counsel for the appellant contended that the Trial Court

should not have granted decree in favour of the plaintiff

since Ext.A2 Agreement is insufficiently stamped. The

allegation of the plaintiff is that the amount of

Rs.10,00,000/- is paid by cash, which is in violation of

Section 269 ST of the Income Tax Act. Since the suit is for

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recovery of the said amount, the claim is in violation of

Section 23 of the Contract Act. The learned Counsel for

the appellant relied on the judgment of the Honourable

Supreme Court in Smt. Narayana and Another.,etc Vs

Sreegovindappa and others.,etc in Civil Appeal No. 7630-

7631 of 2019.

5. It is seen from the records that, Ext.A2 was admitted in

evidence without any objection from the side of the 2 nd

defendant. The only case of the 2 nd defendant was that he

has not executed Ext. A2 document. The Trial Court, as

well as the First Appellate Court, relying on Ext.A5 Reply

Notice sent by the defendants and also relying on the

evidence of PW2, found that Ext.A2 is executed by the 2 nd

defendant. Since the Ext.A1 Agreement for sale is in

existence between the 1st defendant and the 2nd defendant,

the 2nd defendant also has the authority to execute

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the Ext.A2 sale deed also. In view of section 35 of the

Kerala Stamp Act if a document was accepted in evidence

without raising any objection from the side of the

defendant, the admissibility of the said document on the

ground of insufficiency of stamp could not be raised later.

With respect to the contention on the strength of S. 269 ST

of the Income Tax Act and read with Section 23 of the

Indian Contract Act, the said contention was not raised

either before the Trial court or before the First Appellate

Court. In the memorandum of appeal also, no ground or

substantial question of law is raised with respect to the

same. In view of Order 42 Rule 2 CPC, the appellant has

no right to advance arguments in support of a ground

which is not raised in the Memorandum of Appeal.

Counsel for the appellant invited my attention to Ground

No.10 in which it is stated that the payment is contrary to

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existing legal restrictions, it would not in any way indicate

that the said Ground covers the contention raised on the

basis of Section 269 ST of the Income Tax Act read with

Section 23 of the Indian Contract Act.

6. I do not find any illegality or impropriety in the judgment

and decree passed by the Trial Court as well as the First

Appellate Court. Hence, this regular second appeal is

dismissed.

Sd/-

M.A ABDUL HAKHIM JUDGE AKH