Madras High Court
Rajkumar vs / on 26 February, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.No.91 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26.02.2025
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Appeal Suit No.91 of 2022
Rajkumar .. Appellant
/versus/
Kasthuri Bai .. Respondents
Appeal Suit has been filed under Section 96 of C.P.C., praying to set
aside the judgment and decree dated 18.12.2019 made in O.S.No.200 of
2015 on the file of the Additional District Judge at Chengalpet.
For Appellant :Mr.B.Rajkumar Ashok Singh
For Defendant :Mr.Ramesh Kumar G.Chopda
JUDGMENT
Aggrieved over the judgment and decree of the Trial Court decreeing
the suit for a payment of a sum of Rs.10,49,699/- together with interest @
6% p.a., on Rs.8,83,500/-from the date of plaint till the date of realisation,
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the present appeal is filed by the unsuccessful defendant.
2. The parties are arrayed to as per their own ranking before the Trial
Court.
3. The case of the plaintiff is as follows:
3.a. The defendant is the husband of the plaintiff's sister Mrs.S.Unaicy
Christhi Jothi. The plaintiff sold the property bearing Plot No.1,
Govindarajapuram, Nandhivaram Guduvanchery to her sister Mrs.S.Unaicy
Christhi Jothi, wife of the defendant as per the registered sale deed dated
21.06.2012. The defendant approached the plaintiff and requested the
plaintiff to lend amount for his urgent family needs and sons education on
undertaking to repay the same together with interest at 24% p.a., within a
period of three months. Accordingly, on 26.06.2012, the plaintiff had
transferred a sum of Rs.5 lakhs through RTGS and Rs.2 lakhs from her
savings account at Canara Bank, Gudavancherry Branch to the defendant's
account also demand draft of Rs.43,000/- in favour of Valliammai
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Polytechnic towards the educational fees of defendant's son Samuel was
also drawn by the plaintiff. Further, a sum of Rs.1,40,500/- is also
transferred to the defendant's account on 29.09.2012. In all, the plaintiff had
let a sum of Rs.8,83,500/-.
3.b. The defendant had repaid a sum of Rs.1,50,000/- on 18.03.2013
to the plaintiff and the said amount is adjusted towards interest. Thought the
defendant undertook to pay interest @ 24% pa., the plaintiff is restricting
his claim for interest @ 12% pa., The plaintiff has issued a legal notice for
repayment of the amount and it is also his case that while issuing legal
notice by mistake, the plaintiff had omitted to mention about the transfer of
Rs.5 lakhs to the defendants on 26.06.2012. Hence, the suit has been filed
for recovery.
4. It is the case of the defendant in the written statement that sale
consideration of the property is Rs.50 lakhs and a sum of Rs.35 lakhs has
been paid in cash on various dates, that apart, Rs. 15 Lakhs was obtained
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from M/s.Shriram Housing Finance Limited is also paid to the plaintiff
through demand draft. It is the contention of the defendant that the property
was sold in the name of defendant's wife is not free from encumbrance, thus,
the plaintiff herself voluntarily come forward to retain the sum of
Rs.8,83,500/-, a part amount of the sale consideration as a security till the
encumbrance cleared and the sale deed mentioned property free from
encumbrance. In that said amount, the defendant has paid a sum of
Rs.1,50,000/- to the plaintiff, therefore, the defendant is liable to pay only a
sum of Rs.7,33,500/- towards the sale proceedings till the plaintiff clear the
encumbrance over the property. Further, the defendant has also given a
criminal complaint against the third parties in Cr.No.30 of 2013 and the
plaintiff has pressurised the defendant for repayment of amount by giving
police complaint for return of Rs.9,50,000/- at one stroke, therefore, the
defendant has issued a legal notice dated 11.03.2015 calling upon the
plaintiff to pay the sale amount of Rs.42,50,000/- with interest @ 24% p.a.,
Hence, according to the defendant, there was no loan borrowed from the
plaintiff at any point of time and opposed the suit.
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5. Based on the above pleadings, the Trial Court has framed the
following issues:
1. Whether the plaintiff is entitled to the relief by directing the defendant to
pay a sum of Rs.10,49,699/- together with interest @ 6% p.a., on
Rs.8,83,500/- from the date of plaint till the date of realization?
2.To what other reliefs if any the plaintiff is entitled to ?
6. On the side of plaintiff, plaintiff herself was examined as PW1 and
marked Exs.A1 to A7 and on the side of the defendant, defendant himself
was examined as DW1 and no documents were marked.
7. Based on the oral and documentary evidences, the Trial Court has
decreed the suit. Challenging this said judgment and decree, the present
appeal is filed.
8. It is the contention of the learned counsel for the
appellant/defendant that the defendant has never borrowed any amount from
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the plaintiff. The plaintiff herself has returned the amount to the defendant's
wife only in order to clear the encumbrance over the property. Further, there
is no document to show that the defendant has borrowed the amount on
interest. The plaintiff has already given a police complaint against the
defendant and his wife which has been totally suppressed by the plaintiff
and further, in the police complaint no allegation is made against the
defendant which has been admitted by the plaintiff in her evidence.
Therefore, according to him, only wife of defendant has to pay the amount
for which the defendant has been sued. Hence, submitted the judgment and
decree of the Trial Court has to be set aside.
9. Whereas, it is the contention of the learned counsel for the
plaintiff/respondent that the only defence of the defendant is that the amount
has been retained by the defendant only in order to clear encumbrance over
the property. The very defence of the defendant indicate that the property is
not free from encumbrance, if really, there was encumbrance, he would have
not got loan. Hence, submitted that the very defence itself is an after thought
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and not been established. Therefore, submitted that the judgment and decree
of the Trial Court does not require interference and seeks for dismissal of
this appeal.
10. In light of the above submissions, now the points arises for
consideration are as follows:
(i) Whether the defendant is liable to pay the suit amount?
(ii) Whether there was any loan transaction between the parties?
Points (i) & (ii)
11. It is the case of the plaintiff that she has sold the property to her
sister for a sum of Rs.50 lakhs by registered sale deed dated 21.06.2012.
The defendant being her brother in law knowing the fact that the plaintiff
has money requested to lend money for family necessity including son's
education. Accordingly, the plaintiff has on 26.06.2012 had transferred a
sum of Rs.5 lakhs through RTGS and Rs.2 lakhs from her savings account
at Canara Bank, Gudavancherry Branch to the defendant's account also
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demand draft of Rs.43,000/- in favour of Valliammai Polytechnic towards
the educational fees of defendant's son Samuel was also drawn by the
plaintiff. Further, a sum of Rs.1,40,500/- is also transferred to the
defendant's account on 29.09.2012. In all, the plaintiff had let a sum of
Rs.8,83,500/-. Whereas, it is case the defendant that there was no borrowal
of amounts from plaintiff on interest, since, there was encumbrance over the
property, the plaintiff herself returned a sum of Rs.8,83,500/- and informed
the defendant to repay the said amount after the encumberance over the
property are cleared. Therefore, according to the defendant, the amount
transferred to his account was voluntarily transferred by the plaintiff, to
retain the amount only until the encumberance is cleared over the suit
property which was sold to the defendant's wife. It is the further stand of the
defendant that a sum of Rs.1,50,000/- is repaid to the plaintiff.
12. In light of the specific stand of the parties narrated above, it has to
be seen whether the amount transferred to the defendant on various dates to
the tune of Rs.8,83,500/- is loan transaction or not. It is the specific case of
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the plaintiff that after knowing the fact that the plaintiff has money, after the
sale of the property, the defendant requested the plaintiff to lend money for
family necessity including son's education. The fact that the plaintiff had
drawn a demand draft for a sum of Rs.43,000/- for the defendant's son
education is not disputed by the defendant. Besides, the defendant has not
disputed the transfer of sum of Rs.7 lakhs on 26.06.2012 and another
Rs.1,40,500/- on 29.09.2012. It is also not denied by the defendant about the
receipt of total sum of Rs.8,83,500/-. Both sides clearly admitted that after
transfer of sum of Rs.8,83,500/- the defendant has repaid a sum of
Rs.1,50,000/- on 18.03.2013.
13. It is the contention of the plaintiff that the said amount has been
adjusted towards the interest, however, the principal has not been paid
thereafter. Whereas, it is the contention of the defendant that after sale of the
property, there were encumberance over the sold property, hence, the
plaintiff herself voluntarily transferred the amount of Rs.8,83,500/- and
informed the defendant to retain that amount till the encumbrance is over. In
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this regard, when the receipt of money has not been disputed and the
defendant's contention that amount has been voluntarily transferred by the
plaintiff only for the purpose of clearing encumbrance, it is for the
defendant to establish the said fact. According to the defendant in the
written statement, they are liable to pay a sum of Rs.7,33,500/- towards the
balance sale consideration.
14. It is relevant to note that the relationship of the parties are very
close, in fact, a police complaint is also given against the defendant's wife
for not settling the balance sale consideration. Further, when the very
suggestion put to the plaintiff clearly indicate that the complaint was not
given against the defendant and is only against the sister. If really, the
amount is only towards the sale consideration, in the normal course the
plaintiff would have been given complaint against the defendant which has
not been done so.
15. That apart, the very defence that the plaintiff has voluntarily
transferred the amount to the defendant's account and asked him to retain
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the amount till the encumberance is cleared is concerned, when the evidence
of defendant carefully seen, in fact, same is contra to his pleading. His
evidence indicate that after sale of the property, his wife has availed the
housing loan of Rs.15 lakhs from Shriram Housing Finance Limited, the
defendant categorically admitted that since there was no encumberance over
the property, loan has been sanctioned by the Shriram Housing Finance
Limited. The contention of the defendant that there were encumbrance over
the property, therefore, the plaintiff has asked the defendant to retain the
money is highly improbable. The very admission of DW1 in his cross
examination clearly shows that he took possession over the property on the
date of sale, thereafter, he has let out the premises to a tenant namely
Banumathi and he has obtained Rs.4 lakhs advance, therefore, the
contention that there were encumberance over the suit property, thus, the
plaintiff has transferred the amount voluntarily and asked thim to retain the
amount till the encumberance is cleared is highly improbable and against
the normal human conduct.
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16. It is improbable to contend that plaintiff voluntarily transferred
the money and asked the defendant to keep the money, particularly, when
there is no encumberance whatsoever in the property based on which
housing loan is also obtained and property has been let out to third party.
Thus, this Court is of the view that the very defence has not been
established and the plaintiff's case is more probable. The very fact that
demand draft already drawn in favour of Valliammai Polytechnic College in
respect of tuition fees of the defendant's son makes it clear that in fact the
transaction between the plaintiff and defendant is independent to the sale
consideration. When the specific defence taken by the defendant in this
regard is found to be false, plaintiff's case is probable and established the
loan transaction. Accordingly, these points are answered.
17. In view of the above, the decree and judgment passed by the Trial
Court in O.S.No.200 of 2015 dated 18.12.2019 stands confirmed and this
appeal suit is accordingly, dismissed. No costs.
26.02.2025
dhk
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Index:yes/no
Speaking order/non speaking order
Neutral citation: yes/no
To
1. The Additional District Court, Chengalpet
2.The Section Officer
VR Section
Madras High Court
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N.SATHISH KUMAR, J.
dhk
26.02.2025
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