Kerala High Court
Sree Vidyaprakasini Sabha vs Yogesh Krishnan on 17 February, 2025
RSA No.530 of 2024
1
2025:KER:13159
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RSA NO. 530 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2023 IN AS NO.76 OF
2019 OF ADDITIONAL SUB COURT, IRINJALAKUDA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 09.07.2019 IN O.S.
NO.1065 OF 2017 OF MUNSIFF COURT, KODUNGALLUR
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SREE VIDYAPRAKASINI SABHA
PRESIDENT CHENDAMARAKSHAN, S/O GOPALAN, CHENAPPAMTHOTTATHIL,
ARAKULAM DESOM, METHALA VILLAGE, KODUNGALLUR, THRISSUR
DISTRICT, PIN - 680664
2 SECRETARY
JYOTHIRMAYAN, S/O PRABASAN, PULLIKAL, UNDEKADAVE DESOM,
METHALA VILLAGE, KODUNGALLUR,THRISSUR DISTRICT, PIN - 680664
3 TREASURER
BAIJU, S/O LAKSHMANAN, IRATTE, ELTHURUTH DESOM, METHALA
VILLAGE, KODUNGALLUR,THRISSUR DISTRICT, PIN - 680644
BY ADV K.S.BHARATHAN
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 4:
*1 YOGESH KRISHNAN
S/O. EDACHALIL SREERAJAN, ANCHANGADI DESOM, P.VEMBALLUR
VILLAGE, KODUNGALLUR TALUK.THRISSUR DISTRICT PIN¬680 671
RSA No.530 of 2024
2
2025:KER:13159
2 SREERAJAN,(DIED) LHS RECORDED
S/O. KRISHNAN, EDACHALIL HOUSE ANCHANGADI DESOM, PADINJARE
VEMBALLUR VILLAGE, KODUNGALLUR TALUK,THRISSUR DISTRICT
PIN¬680 671
*3 RAJESH KRISHNA
S/O. SREERAJAN, EDACHALIL HOUSE, ANCHANGADI DESOM, PADINJARE
VEMBALLUR VILLAGE, KODUNGALLUR TALUK,THRISSUR DISTRICT
PIN¬680 671.
*4 SIMBLE KRISHNARAJ
W/O. JYOTHIRAJ, EDACHALIL HOUSE, ANCHANGADI DESOM, PADINJARE
VEMBALLUR VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT
PIN¬680 671.
*(THE RESPONDENTS 1,3 AND 4 ARE RECORDED AS LEGAL HEIRS OF
DECEASED 2ND RESPONDENT AS PER ORDER DATED 10.12.2024 IN
MEMO DATED 04.12.2024)
R1, R3 & R4 BY ADVS.
BIJU ABRAHAM
RIDHUN JACOB MATHEW
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.530 of 2024
3
2025:KER:13159
JUDGMENT
1. The plaintiffs are the appellants. The plaintiffs are the
President, Secretary and Treasurer representing a Chitty
Establishment. The suit is for realisation of money due to the
plaintiffs from the defendants towards some of the defaulted
instalments of the Chitty.
2. According to the plaintiffs, the 1st defendant has availed Chitty
Nos.237/237 and 240/240. He auctioned those Chitties at the
third instalment. Equitable mortgage of the property of the 2nd
defendant was created to secure the auctioned amount paid to
the 1st defendant. They paid up to the 9th instalment regularly.
From the 12th instalment onwards, they started defaulting.
Plaintiffs filed another suit, i.e., O.S.1651/2014 for realisation
of the defaulted amount upto the 17th instalment. The present
suit is for the realisation of the defaulted amount from the 18th
instalment till the 26th instalment. The total amount claimed is
Rs.3,58,740/-.
2025:KER:13159
3. The defendants opposed the suit prayers by filing a Written
Statement contending inter alia that the first defendant is not
a party to the chitty transactions with the plaintiffs. The chitty
belonged to one Veenamol, who auctioned the chitty and
received the amount. One Mr. Yogesh K.C. obtained documents
of the second defendant and mortgaged the same with the
plaintiffs. The second defendant did not give documents to the
plaintiffs with the intention to create a mortgage. There are
nearly 20 chits that were subscribed by his family members in
the plaintiffs' company. No chitty was auctioned by the
defendants. Chitty Nos.240/240 and 237/237 were not
subscribed by the defendants. No agreement was executed as
alleged in the plaint.
4. The Trial Court dismissed the suit, finding that Exts.A1 and A2
documents, which are the Chitty Agreement and Equitable
mortgage by depositing title deeds, are not proved to be
executed by the defendants. It is also stated that the plaintiffs
have not produced any document to support the plaint claim.
2025:KER:13159
5. On filing the appeal before the First Appellate Court, the First
Appellate Court confirmed the judgment and decree of the Trial
Court.
6. I heard the learned counsel for the appellants,
Sri.K.S.Bharathan and the learned counsel for the respondents
Sri.Biju Abraham.
7. The learned counsel for the appellants contended that four
suits were filed against the very same defendants for
realisation of different instalments of the very same Chitty and
two of them are decreed. The plaintiffs have produced Ext.A3
and A4 title deeds of the defendants in the Court which would
indicate that the contention of the defendants that they have
no connection with the plaintiff is incorrect. Exts.A10 to A13
Vouchers will prove payment of the auctioned amounts to the
1st defendant.
8. On the other hand, the learned counsel for the respondents
contended that the two suits which were decreed were ex parte
and that there is nothing on record to prove the plaint claim.
2025:KER:13159
9. On going through the evidence, I find that the plaintiffs have
not produced any document to support their plaint claim of
Rs.3,58,740/-. The plaintiff company is admittedly a Chitty
Establishment. If their claim is genuine they will have records
to prove their claim. The plaintiffs ought to have produced
sufficient records to prove that the amounts claimed in the
plaint are due from the defendants. Even assuming that the
defendants have subscribed to the chitties claimed by the
plaintiffs, there is nothing on record to prove as to how the
plaint amount is due from the defendants. Even in Ext.A5, the
Lawyer Notice, the plaintiffs have not claimed a definite
amount. In the plaint, the claim is that there is a default from
the 18th instalment. But, in Ext.A5, the default is stated as from
the 12th instalment. It does not support the plaint claim in the
present suit. There is nothing wrong in the dismissal of the suit.
The Appeal fails, and accordingly, the same is dismissed.
Sd/-
M.A.ABDUL HAKHIM
Shg JUDGE
