Madras High Court
K.Pullammal vs Nagalakshmi on 26 July, 2021
A.S.(MD)No.181 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.181 of 2019
and
C.M.P.(MD)No.9393 of 2019
1.K.Pullammal
2.LK.Balakrishnan
3.K.Ayyanar ... Appellants
Vs.
Nagalakshmi ... Respondent
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to set
aside the decree and judgment passed in O.S.No.57 of 2015 dated 17.07.2018
on the file of the VI Additional District Court, Madurai and to allow this appeal
suit.
For Appellants : Mr.R.Selvaraj
For Respondent : Mr.P.Subbiah
For Mr.I.Sekar
JUDGEMENT
The defendants in O.S.No.57 of 2015 on the file of the VI Additional
District Court, Madurai are the appellants in this appeal. The respondent
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herein namely., Nagalakshmi filed the said suit for directing one Krishnan to
pay the plaintiff a sum of Rs.16,70,000/- with subsequent interest within the
time frame to be fixed by the Court failing which, the plaintiff must be
permitted to file a final decree application to bring the suit property for auction
sale for adjusting the sale proceeds towards decreetal amount. The suit was
filed on the strength of Ex.A1/mortgage deed dated 04.06.2012 executed by the
said Krishnan. The said Krishnan had passed away on 04.10.2013 itself. When
the factum of death of the defendant came to plaintiff's knowledge, I.A.No.31
of 2016 was filed and the cause title was amended and thereby, the appellants
were made as defendants. According to the plaintiff, the deceased/Krishnan
borrowed a sum of Rs.10,00,000/- from her on 04.06.2012 and executed
Ex.A1/mortgage deed (Document No.4921 of 2012, on the file of Joint Sub
Registrar Office, Madurai South). Since the mortgagor did not repay any
amount either towards interest or towards principal, the suit for foreclosure
came to be instituted.
2.The appellants herein filed their written statement controverting the
plaint averments. According to them, the plaintiff's husband namely.,
Annamalai had money transaction with one Karusubramanian, who was related
to them. Since the plaintiff's husband put immense pressure on the said
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A.S.(MD)No.181 of 2019
Karusubramaninan, Krishnan was made to execute Ex.A1 as security. The
defendants pleaded that there was no transaction whatsoever between the
plaintiff and the said Krishnan. In any event, even before the demise of
Krishnan on 30.09.2013, a sum of Rs.5,00,000/- was paid to Annamalai and
thereafter, a further sum of Rs.2,00,000/- was paid on 08.11.2013. According
to the defendants, the balance amount payable by them for liquidating the
mortgage was only Rs.3,00,000/-. Based on the divergent pleadings, the trial
court framed the necessary issues.
3.The plaintiff examined herself as P.W.1 and her husband/Annamalai
was examined as P.W.2 and Exs.A1 to A3 were marked. On the side of the
defendants, the third appellant herein namely., Ayyanar examined himself as
D.W.1. Karusubramanian with whom P.W.2/Annamalai is said to have had
transaction was examined as D.W.2. No documentary evidence was marked on
the side of the defendants.
4.After a consideration of the evidence on record, the Court below passed
preliminary decree dated 17.07.2018 directing the appellants herein to pay the
plaintiff a sum of Rs.16,96,460/- with interest at the rate of 6% per annum on
the principal amount of Rs.10,00,000/- from date of decree till date of payment.
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A.S.(MD)No.181 of 2019
In the event of failure to do so, the plaintiff was given liberty to apply for final
decree for bringing the property to sale. Aggrieved by the same, this appeal suit
came to be filed.
5.The point that arises for consideration in this appeal suit are two fold:
“(a) Whether there was any financial transaction between
the plaintiff/Nagalakshmi and the deceased Krishnan or whether
Ex.A1 came to be executed in the circumstances pleaded by the
defendants? and
(b) Whether the defendants had paid a sum of Rs.7,00,000/-
to the plaintiff's husband/Annamalai even before the institution of
the suit towards the suit transaction?”
6.The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds. He took me through the
oral evidence adduced on either side. He pointed out that the plaintiff who was
examined as P.W.1 is a mere pawn at the hands of her husband. It was
P.W.2/Annamalai, who had transacted with Krishnan as well as
D.W.2/Karusubramaninan. The plaintiff was a mere name lender. He also
pointed out that the receipt of a sum of Rs.7,00,000/- had been admitted by
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A.S.(MD)No.181 of 2019
P.W.2 and since admission is the best form of proof, no further evidence was
required to be adduced by the defendants. He also pointed out that P.W.1 as
well as P.W.2 are retired government servants and that therefore, they ought to
have been income tax assessees. The transactions obviously should have been
reflected in the annual income tax returns filed by them. In this case, the
annual income tax returns have not been filed by P.W.1 or P.W.2. Therefore,he
called upon this Court to draw adverse inference against the plaintiff. He also
would point out that the plaintiff's husband/P.W.2 was working as mandate
holder in the company run by D.W.2 and that he had filed criminal prosecution
under Section 138 of Negotiable Instruments Act against Karusubramanian
both in his name and in the name of his brother namely., Meenakshisundaram.
The learned counsel called upon me to take a holistic view of the matter and
come to the conclusion that the defendants have established their defence on
balance of probabilities. He submitted that when granting interim order, this
Court had imposed a condition that the defendants should deposit a sum of Rs.
3,00,000/-. The defendants had complied with the said condition. According to
them, they had already paid a sum of Rs.7,00,000/-. Therefore, nothing further
remains to be paid by the defendants/appellants. He called upon this Court to
modify the judgment passed by the trial court.
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A.S.(MD)No.181 of 2019
7.Per contra, the learned counsel appearing for the respondent submitted
that the suit has been instituted on the strength a registered mortgage deed. The
execution of Ex.A1 is not under dispute. Therefore, the appellants, who are
legal heirs of the deceased Krishnan cannot controvert the averments set out in
the mortgage deed. Permitting them to do so would run contrary to the
statutory mandate set out in Section 92 of the Evidence Act. He would also
state that the appellants are trying to confuse this Court by bringing in
extraneous transactions. According to him, Karusubramanian had three fold
transactions and one cannot be mixed with the other. As regards the receipt of
sum of Rs.5,00,000/-, according to the learned counsel for the respondent, it
represents the other transaction and that the appellants cannot claim the benefit
of adjustment in respect of the suit transaction. He submitted that the trial court
had correctly appreciated the evidence on record. According to him, the
impugned judgment and decree do not call any inference.
8.I carefully considered the rival contentions and went through the
evidence on record. It is true that the suit has been instituted on the basis of
Ex.A1/mortgage deed executed by Krishnan, the wife of the first appellant and
the father of the appellants 2 and 3. There is no dispute that Ex.A1 was
executed only by the said Krishnan. Now the question is whether the defence
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A.S.(MD)No.181 of 2019
putforth by the appellants has been established or not. It is well settled that
standard of proof in a civil case is only “balance of probabilities” and it is not
“proof beyond reasonable doubt”. The defendants had taken a specific plea that
the plaintiff's husband was working as an official in commercial tax department
and that their relative Karusubramanian got acquainted with him and that they
had financial transactions between them. The plaintiff's
husband/P.W.2/Annamalai is said to have advanced a sum of Rs.10,00,000/- to
the said Karusubramanian. Annalmalai was also functioning as a mandate
holder in the company run by Karusubramanian. Since immense pressure was
brought to bear on Karusubramanian to arrange security, to oblige his relative,
Krishnan who is Karusubramanian's uncle executed Ex.A1.
9.I must observe at the very outset that this defence has been set out in
the written statement itself. It is not a theory that has been introduced at the
time of trial. The defendants have further pleaded that a sum of
Rs.7,00,000/- was returned in two installments. The plaintiff did not file any
reply statement. Of course, non filing of reply statement cannot be put against
the plaintiff. As per the provisions of Civil Procedure Code to file any
additional pleading, leave of the Court must be obtained. But it is significant to
note that even though Krishnan had passed away well before the filing of suit,
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the suit was instituted only against the dead person. After the plaintiff became
aware that Krishnan had passed away, she filed an interlocutory application and
brought the appellants on record. The plaintiff examined herself as P.W.1.
P.W.1 had worked as a nurse in a government hospital. P.W.1 in her deposition
stated that she had not given loan to any other person. According to her, she
advanced a sum of Rs.10,00,000/- as loan to the deceased/Krishnan alone. She
feigned total ignorance about the transactions which her husband/Annamalai
had with Karusubramanian. The plaintiff also stated that she is not a income
tax assessee. A transaction of Rs.10,00,000/- ought to have been reflected in
the income tax return. Non reflection of the suit transaction in the income tax
returns of the plaintiff is a factor that has to be borne in mind by the Court. A
reading of the deposition of P.W.1 clearly gives an impression that she was a
mere name lender and that the transaction was one essentially involving her
husband/Annamalai. It is inconceivable that a retired government servant, a
woman, who on her admission is not engaged in the business of money lending
would have given a sum of Rs.10,00,000/- to a person with whom she is not
acquainted. As already pointed out, even the death of Krishnan was not within
her knowledge. That is why, the suit was filed against the dead person. I am
more than convinced that it is the plaintiff's husband/Annamalai, who was
involved in the entire transaction and Ex.A1 was merely obtained in the name
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A.S.(MD)No.181 of 2019
of his wife. In other words, the plaintiff is only a name lender at the instance of
her husband and nothing more.
10.The plaintiff's husband/Annamalai was examined as P.W.2. He
admitted that he had lent money to Karusubramanian, who is a relative of the
defendants. He also admitted that two criminal cases under Section 138 of
Negotiable Instruments Act were filed against the said Karusubramanian, one
was in his name and the other was in the name of his brother namely.,
Meenakshisundaram. P.W.2 also admitted that he was working as a mandate
holder in the company run by the said Karusubramanian. The learned counsel
appearing for the appellants draws my attention to paragraph No.4 of the proof
affidavit of P.W.2. Controverting the stand of the defendants that a sum of
Rs.5,00,000/- was already paid for liquidating the mortgage deed, P.W.2 had
simply denied the same. However, in the course of cross examination, P.W.2
admitted that a sum of Rs.5,00,000/- was in fact returned by the said
Karusubramanian. However, P.W.2 claimed that Karusubramanian had
borrowed a sum of Rs.13,00,000/- from him ie.. P.W.2. That apart, he also
borrowed a sum of Rs.5,00,000/- from one of his friends. He had also taken a
loan of Rs.10,00,000/-. Put together the total amount borrowed by
Karusubramanian would come to Rs.28,00,000/-. Since a sum of Rs.5,00,000/-
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A.S.(MD)No.181 of 2019
was already paid, Karusubramanian had to return the balance amount of
Rs.23,00,000/- with interest. There is considerable merit in the contention of
the learned counsel for the appellants that if really Karusubramanian had three
transactions in all, certainly those details would have been specifically spelt out
in the chief examination itself. But only in the cross examination, these aspects
came to be elicited. The answers given by P.W.2 in the course of cross
examination are a clear give-away of the real nature of the transaction. As
rightly pointed out by the learned counsel appearing for the appellants, the
so-called friend, who is said to have advanced a sum of Rs.5,00,000/- was not
examined and those details are conspicuously absent.
11.Karusubramanian with whom P.W.2 had dealings was examined as
D.W.2. Karusubramanian was prosecuted by P.W.2 in S.T.C.Nos.87 and 97 of
2015. P.W.2 while deposing in present civil case was confronted with the
testimonies given in the criminal cases. He admitted that a sum of
Rs.10,00,000/- was taken by Karusubramanian. He also stated that it was he
who gave a sum of Rs.10,00,000/- and not his wife. This vital contradiction has
been elicited from P.W.2, during the course of his cross examination. He had
also admitted that only a sum of Rs.10,00,000/- was involved in the transaction
between him and D.W.2/Karusubramanian.
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12.It is true that Ex.A1 is a registered document. But then, the
defendants have taken a categorical stand that no consideration passed under
Ex.A1 and that it was executed only to oblige their relative Karusubramanian.
Therefore, Section 92 of the Evidence Act will not come in the way of the
defendants from establishing the true nature of transaction.
13.After a careful reading of the entire evidence on record, I am satisfied
that the defendants have established that a sum of Rs.5,00,000/- has been
returned. Even though there are stray lines indicating the return of a further
sum of Rs.2,00,000/-, I am satisfied that on a balance of probabilities what has
been established is only return of Rs.5,00,000/-. I am also satisfied that the
defendants had proved that this amount was returned as early as on 30.09.2013.
The mortgage was executed on 04.06.2012. The sum of Rs.5,00,000/- paid
towards the suit transaction can only be adjusted initially against interest and
only the balance amount can be adjusted against the principal. When a sum of
Rs.5,00,000/- was paid on 30.09.2013, a sum of Rs.1,20,250/- would have got
adjusted against the interest payable on the suit transaction. The balance
amount of Rs.3,79,750/- would be adjusted against the principal amount. The
plaintiff will be entitled to decree only for Rs.6,20,250/-. The trial court has
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rightly held that the plaintiff will be entitled to interest at the rate of 9% per
annum. Therefore, the judgment and decree passed by the trial court is
modified and the appellants are directed to pay the amount of Rs.6,20,250/-
together with interest at the rate of 9% per annum with effect from 30.09.2013
till date of realization. The appeal suit is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
26.07.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
The AVI Additional District Court,
Madurai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.181 of 2019
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A.S.(MD)No.181 of 2019
G.R.SWAMINATHAN, J.
ias
A.S.(MD)No.181 of 2019
26.07.2021
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