This second appeal has been filed against the judgment and decree in A.S.No.97/2014 on the file of Subordinate Judge's Court, Tirur which in turn arise out of the judgment and decree in O.S.No.166 of 2013 on the file of Munsiff Magistrate's Court, Ponnani.
2. Appellant is the defendant. Suit is one for recovery of money based on a cheque. (Parties would hereafter be referred as per their status before the trial court). Plaintiff and defendant are friends and in the year 2002 plaintiff went abroad. The defendant was managing the affairs of the plaintiff during that time. Most of the money earned by the plaintiff was sent in the name of the defendant for purchasing immovable properties in the name of plaintiff and his wife. Plaintiff sent mobile phone accessory for the purpose of the business. To discharge the liability in the above transaction, defendant issued cheque for Rs.5,00,000/- in favour of the plaintiff. But, on presentation of the cheque it was returned for the reason 'account blocked'. On 07.02.2013, a lawyer notice was issued to the defendant intimating the dishonour. Thereafter, criminal complaint was filed against the defendant and it is pending as Crime No.278/2013. Hence the suit.
3. Defendant filed written statement denying the averments in the plaint regarding the sending of money by the plaintiff in the name of the defendant. Defendant is conducting real estate business. For that, he had received money from several people including the plaintiff and he was giving share of profits. Defendant is conducting mobile phone business and vehicle business on his own. The defendant never managed the business and the properties of the plaintiff. Plaintiff had involved in several financial transactions and was unable to continue at abroad and came down to the native place. A crime has also been registered against the plaintiff as Ponnani crime No.405/2009. Hence the defendant had some obstacles in continuing the business and hence he decided to settle the entire transaction with the plaintiff and settled the entire transaction with him and at that time an amount of Rs.5,00,000/- was due from the defendant to the plaintiff. For that, defendant sought for a little time and agreed to repay the amount on selling his property at Nariparambu and thereafter that property was sold and cheque was issued in favour of plaintiff and amount of Rs.5,50,000/- was deposited in the account of the defendant from that date and only on receiving the lawyer notice he came to know that the plaintiff did not receive the amount and since the bank has instituted a case against him before the Debt Recovery Tribunal and Savings Bank account in the name of the defendant was blocked. Thereafter, he contacted the plaintiff and almost at that time, he paid Rs.5,00,000/- due to the plaintiff and cheque was alleged to have been given to the Advocate by the plaintiff and agreed to return it later but it was not returned.
4. Exts.A1 to A6 were marked from the side of the plaintiff and Exts.B1 to B5 were marked from the side of the defendant.
5. On appreciating the rival contentions and documents and facts and circumstances, the trial court decreed the suit as prayed for. First appellate court on reappreciating the facts and circumstances and evidence adduced, dismissed the appeal confirming the judgment and decree passed by the trial court. Having lost before the two forums, appellant approaches this Court in the second appeal.
6. Notice was issued to the respondent. Lower court records were called for and both sides were heard.
7. According to the learned counsel for the appellant/defendant, plaintiff did not adduce any evidence and only documents are produced inspite of specific contentions raised by the defendant in the written statement. It is also his contention that it is in discharge of the liability that Exts.B2 to B5 were executed by the defendant in favour of the plaintiff but that contention of the defendant was not appreciated.
8. From the pleadings in the written statement it could be seen that though the defendant disputed the plaint averments in paragraph 4, he categorically admitted that the transactions between the plaintiff and defendant has been settled and at that time, an amount of Rs.5,00,000/- was due from the defendant to the plaintiff and for that, the defendant sought for some time to repay that amount on selling his property at Nariparamba. Further, he contended that he sold that property and from the sale proceeds, he deposited Rs.5,50,000/- towards the amount due to the plaintiff in Federal Bank, Thavanoor Branch and only on getting the lawyer notice, he came to know that the amount as per the cheque was not received by the plaintiff. It is further categorically stated that the savings bank account of the defendant was blocked in pursuance of a case filed before the Debt Recovery Tribunal by the bank. Further, it is contended that he contacted the plaintiff thereafter and paid the amount of Rs.5,00,000/- to the plaintiff but cheque was not got returned and plaintiff informed that it was with the Advocate and would be returned later. The above contention of the defendant would make it clear that his specific case is discharged as has been rightly found by the courts below. When a plea of discharge is made by the defendant, the burden is upon himself to prove the factum of discharge by adducing evidence.
9. Anil Rishi vs Gurbaksh Singh : 2006 (5) SCC 558 was relied on by the learned counsel. Paragraph No.9 was highlighted by the learned counsel which would provide that the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. But, in that case, appellant in the written statement denied and disputed the averments in the plaint. In the present case, the defendant has admitted in the written statement regarding the liability of Rs.5,00,000/- due from him to the plaintiff and issue of cheque of Rs.5,00,000/- in discharge of that liability and further he admitted that he deposited that amount due to the plaintiff by selling his property in his bank account for honouring the cheque. But, in the meantime, his account was blocked in a case filed before the Debt Recovery Tribunal by the bank. It is further contended that subsequently he met the plaintiff and repaid the amount of Rs.5,00,000/- but the cheque was not returned. This is a case in which defendant asserted the plea of discharge of liability and hence the burden of proof is upon the defendant himself. M/S Gian Chand & Brothers vs Rattan Lal @ Rattan Singh : (2013) 2 SCC 606 : 2013 KHC 4022 is also on the very same line. So also Union of India vs Ibrahim Uddin & Anr : (2012) 8 SCC 148 : 2012 KHC 439 has also no application to the fact situation of the case.
10. In Chirag Enterprises vs. Star Traders : 2012 (4) KLJ 328 : 2012 (4) KHC 271, paragraph 26 was highlighted by the learned counsel wherein it has been observed that the contention of the appellant/plaintiff with an adverse inference ought to have been drawn from the fact that defendant did not examine either by themselves or somebody else on their behalf to rebut evidence of appellant/plaintiff. But, that contention was repelled stating that, that was a case wherein the defendant denied the transactions totally and according to them no amount is due to the plaintiff from them and plaintiff miserably failed to state his case and produce evidence against the defendants. It is also held that it is well settled that it is incumbent upon the plaintiff to establish his case averred in the plaint and produce evidence at first. But, it is to be noted that in this case, plaintiff had clearly averred in the plaint regarding the settlement of transaction in between the plaintiff and defendant and issue of cheque for Rs.5,00,000/- by the defendant in favour of the plaintiff and further defendant categorically admitted that since the cheque was bounced he repaid the amount subsequently. But the plaintiff failed to return the cheque stating that it is with the Advocate and later failed to return the same. This is a case in which defendant specifically put forward a contention of discharge. So, it is the defendant who asserts the plea of discharge and hence the burden of proof is upon him to prove the plea of discharge since the liability and issue of cheque by him in favour of the plaintiff is categorically admitted in the written statement. It is relevant in this context to quote Chandralatha v. Annamallai Finance Ltd. : 1996 (1) KLT 517 wherein while dealing with Order XVIII Rule 1 of the Code of Civil Procedure, it has been held that under Order XVIII Rule 1 of the Code the right to begin though normally is with the plaintiff, that right shifts to the defendants if the defendants admit the allegations made by the plaintiff. In that case also, the main dispute centres round the question of repayment of money which is sought to be recovered. Hence, it was held that since the defendants have admitted the claim, it is for them to begin as contemplated under Order XVIII Rule 1 of the Code.
11. Here, the defendant produced Exts.B2 to B5 documents, which according to the learned counsel, has been executed in discharge of the liability. But, there is no such contention in the written statement. If at all Exts.B2 to B5 were executed in discharge of the liability of Rs.5,00,000/- claimed by the plaintiff, it would have definitely found a place in the written statement. So also, no oral evidence has been tendered by him to substantiate the present contention that Exts.B2 to B5 had been executed in discharge of the liability due to the plaintiff. With respect to Exts.B2 to B5, it is to be noted that the plaintiff has got a specific allegation in the plaint that defendant was his friend and defendant was looking after all his affairs after he left abroad. It is also alleged that major portion of his income has been sent to the defendant to purchase property in the name of plaintiff and his wife. It is also alleged that apart from that, he had sent funds and phone accessories. It is alleged that he had sent money through bank as well as money transfer to the defendant and the cheque for Rs.5,00,000/- was issued by the defendant in his favour towards the discharge of liability. Inspite of raising such specific contention in the plaint, defendant did not raise any specific contention in the written statement that in discharge of the liability he had executed Exts.B2 to B5 sale deeds in favour of the plaintiff.
12. On the other hand, his specific contention was that he had deposited Rs.5,50,000/- in his account in order to clear off the debt due to the plaintiff but in a case filed by the bank before the Debt Recovery Tribunal his account was blocked and thereafter he contacted the plaintiff and subsequently paid the amount of Rs.5,00,000/-. That is the way in which contentions are raised by the defendant. The contention of discharge of liability through Exts.B2 to B5 is not supported by any pleadings. Though Sainaba Umma v. Moideenkutty : 1988 (1) ILR Kerala 206 was relied on by the learned c
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ounsel for the appellant, it has no relevance in the fact situation of this case. 13. The learned counsel for the defendant seeks for a remand of the case to give an opportunity to prove the case. But, as stated earlier, in the absence of pleadings, any evidence in this regard will be a futile exercise. In Purushotham Reddy and Anr. v. M/s.Pratap Steels Ltd. : AIR 2002 SC 771 : (2002) 2 SCC 686, it has been held by the Apex Court that an appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the Code of Civil Procedure. In John V. Augustin v. M.R.Renjan and Ors. : ILR 2016 (3) Ker 1021 it has been held by this Court that a remand cannot be made for a mere asking. So, the prayer for remand also is not sustainable in law. 14. On a careful evaluation of the judgments passed by the courts below, I am of the considered view that the courts below have appreciated the pleadings, facts, circumstances and documents produced in a correct perspective and decreed the suit and I do not find any substantial question of law emerging for consideration for entertaining this second appeal. Accordingly, the second appeal is dismissed. No order as to cost.