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2022 DIGILAW 815 (MAD)

V. Narasimhan v. V. Rangarajan

2022-04-05

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayer: Appeal filed under Section 96 of the Civil Procedure Code, Read with Order XLI Rule 1 of Civil Procedure Code, against the Decree and Judgment passed in O.S.No.3902 of 2017 dated 12.03.2018 on the file of XV Additional City Civil Judge at Chennai. Civil Miscellaneous Petition filed under Order XLI Rule 27, to permit the Petitioner/Appellant to produce additional documentary evidence in the above A.S.No.489 of 2018.) 1. The defendant in O.S.No.3902 of 2017, which was on the file of the XV Additional City Civil Court, Chennai is the appellant herein. 2. O.S.No.3902 of 2017 had been filed by the respondent herein/V.Rangarajan against the appellant herein/V.Narasiman, his own elder brother, seeking a judgment and decree to pay a sum of Rs.17,46,500/- towards principal and interest and with subsequent interest at 12% per annum on Rs.15,00,000/-, the principal amount from the date of the plaint till the date of realisation and for costs. 3. In the plaint, it has been stated that the defendant therein/the appellant herein had borrowed a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) on 28.02.2016 for purchasing a flat and the plaintiff had issued a cheque No.416273 dated 28.02.2016 for Rs.15,00,000/- drawn on Indian Bank, West Saidapet Branch, Chennai –600 015. It was stated that the cheque was also encashed. It was further stated that the defendant/appellant herein promised to return the amount whenever demanded. It was further stated that since the amount was not repaid, a legal notice dated 30.03.2017 was issued. The defendant/appellant herein issued a reply on 06.04.2017. Claiming that the amount is due and payable, the suit has been instituted for recovery of Rs.15,00,000/-(Rupees Fifteen Lakhs only) together with interest and costs. 4. In the written statement, the defendant/appellant denied that he had borrowed a sum of Rs.15,00,000/- on 28.02.2016 for purchasing a flat. He further denied that he had agreed to return the amount when demanded with interest. The defendant further stated that he, the plaintiff and one Sriram are brothers. The defendant was the eldest son. Their mother died on 16.03.2007. After her death, the plaintiff/respondent herein created troubles and the father, who was alive, was not allowed to open his mouth. He further denied that he had agreed to return the amount when demanded with interest. The defendant further stated that he, the plaintiff and one Sriram are brothers. The defendant was the eldest son. Their mother died on 16.03.2007. After her death, the plaintiff/respondent herein created troubles and the father, who was alive, was not allowed to open his mouth. The father was more than 84 years old and was the owner of a property in Door No.20/8, Central Excise Colony, West Saidapet, Chennai - 600 015, measuring one ground, in which there was a building both in the ground floor and the first floor. In the year 2012, when the father was 87 years, he was forced to promote the property by giving it to a builder, who was known to the plaintiff/respondent. At that time, there was no necessity for money since the father was a Central Government pensioner. It was agreed that the property would be developed and the sale amounts would be divided equally. The father died on 14.12.2015. The ceremonies got completed on the 13th day. On the 10th day and on the 13th day, all the relatives were present. The defendant/appellant claimed his share in the movable and immovable properties on the 11th day/25.12.2015. On 31.12.2015, the plaintiff/respondent agreed to pay an initial amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) towards his share and issued a cheque on 28.02.2016. 5. It was stated that the defendant/appellant left for U.S in May and returned in September 2016. Since his total amount of share was not paid, he issued a letter to the Manager, Tamil Nadu State Co-Op. Apex Bank Ltd., Saidapet to prevent the plaintiff/respondent from operating the locker of the father. Similar letter was also written to State Bank of India, Mylapore Branch. The legal notice issued by the plaintiff/respondent was a counter blast to the said attempt. It was stated that the defendant was a senior officer in EID Parry India Ltd., and was also working after his retirement as a Consultant, and there was no necessity to take loan from the plaintiff to purchase a flat. It was claimed that the suit should be dismissed. 6. On the basis of the above pleadings, the learned XV Additional Judge, City Civil Court, Chennai, framed the following issues for trial: “1. Whether the plaintiff advanced Rs.15 lakhs as loan to the defendant? 2. It was claimed that the suit should be dismissed. 6. On the basis of the above pleadings, the learned XV Additional Judge, City Civil Court, Chennai, framed the following issues for trial: “1. Whether the plaintiff advanced Rs.15 lakhs as loan to the defendant? 2. Whether the plaintiff is entitled to recover a sum of Rs.17,46,500/- together with interest at 12% on the principal sum of Rs.15 lakhs from the defendant? 3. Whether the plaintiff is entitled to claim 12% interest on the loan advanced to the defendant? 4. To what other relief the plaintiff is entitled?” 7. During trial, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A4. The defendant examined himself as D.W.1 and marked Exs.B1 to B18. Ex.A1 was a copy of the Legal notice dated 30.03.2017 and Ex.A4 was a copy of the Bank Passbook. Ex.B1 was a copy of the Passbook of Andhra Bank and Ex.B5 was a copy of the Passbook of Canara Bank and Ex.B6 were the Fixed Deposit Receipts. Ex.B10 was the letter sent to TNSC Apex Cooperative Bank and Ex.B11 was a copy of the letter sent to Manager, State Bank of India, Mylapore Branch. Ex.B8 and Ex.B15 were copies of the Income Tax Return verification forms. 8. On the basis of the pleadings and the evidence produced, the learned trial Judge examined the Issue, whether there was advancement of Rs.15,00,000/- as loan. The rival contentions were considered namely the contention of the plaintiff/respondent that a sum of Rs.15,00,000/- was sought as loan for purchasing a flat and the contention of the defendant/appellant that he had claimed only his share of the sale proceeds of the property of the father at Saidapet. It was thereafter observed that, if there was a dispute between the plaintiff and the defendant with respect to share in movable and immovable properties, then the defendant can only file a Suit for Partition for division of the properties. It was therefore stated that the claim that the sum of Rs.15,00,000/- was received only towards his share of the sale proceeds cannot be accepted. It was thereafter stated that the defendant/appellant had admitted receipt of Rs.15,00,000/- and therefore, the issue was answered that the amount was given towards borrowal only and that the defendant/appellant was liable to repay the same. It was thereafter stated that the defendant/appellant had admitted receipt of Rs.15,00,000/- and therefore, the issue was answered that the amount was given towards borrowal only and that the defendant/appellant was liable to repay the same. It was also observed that the defendant/appellant had encashed the cheque and in this connection, the Passbooks were also examined. It was therefore found that the suit had to be partly decreed with costs for a sum of Rs.15,00,000/- together with interest at the rate of 8.25% per annum from 07.03.2016 till the date of realisation. Challenging that particular judgment and decree, the present appeal had been filed by the defendant. 9. Along with the appeal, the defendant/appellant herein has also filed C.M.P.No.20299 of 2021 under Order 41 Rule 27 of C.P.C to produce additional documents. In the affidavit filed in support of the said application, it had been stated that after the filing of the appeal, he had applied for Encumbrance Certificate and found that there had been several transactions with respect to the property of the father through a General Power of Attorney and it was also specifically stated that one particular sale transaction was after the death of the father, in which, a Life Certificate was issued, showing that the father was alive. Stating that these documents had not been produced before the trial Court and if produced, would establish that his demand was only for share of the sale proceeds and that the cheque issued by the respondent/plaintiff was not a loan, it was urged that these documents should be permitted to be filed as additional documents. 10. A counter affidavit had been filed by the respondent in the petition, in which, the allegations stated were denied. It was stated that the borrowal was only for purchase of a flat. It was stated that Execution petition was filed. It was also stated that the Court had referred the matter to Mediation, but Mediation process failed. It was stated that the appellant was trying to bring up these issues only to drag and delay the case. It was stated that there had been no fraud and no forgery of Life Certificate of the deceased father. It was stated that the petition and the appeal should be dismissed. 11. Heard arguments in both the Appeal Suit and the Civil Miscellaneous Petition. 12. It was stated that there had been no fraud and no forgery of Life Certificate of the deceased father. It was stated that the petition and the appeal should be dismissed. 11. Heard arguments in both the Appeal Suit and the Civil Miscellaneous Petition. 12. The defendant in O.S.No.3902 of 2017 on the file of the XV Additional City Civil Court, Chennai, who had suffered a Judgment and Decree dated 12.03.2018 for a sum of Rs.15,00,000/- together with interest is the appellant herein. It must be pointed out that the appellant is the elder brother and the respondent is the younger brother. There is another brother in the United States, thankfully, not involved in this litigation. The following facts are not disputed or denied. (i) Their father Late N.Venkatachari had a property at Saidapet. (ii) That property was sold to various persons for promotion through a General Power of Attorney. 13. Since the father died and the mother had pre-deceased him, it is only to be expected that the sale proceeds must be divided among all the three brothers unless there is specific relinquishment of such share by any one of the brothers. Material to that effect had not been produced. It is also seen from the available records that both the appellant/defendant and the respondent/plaintiff are persons probably provided with adequate education, for which, they must be grateful not only to their parents, but also to each other for being a mutual source of motivation in their younger days. They had also been in profitable employment which sustains them even after retirement and till this day. There is no necessity for any financial assistance to be provided by or to either of them. 14. In this background, it must be examined whether the possibility of there being a money loan transaction between the two brothers is more probable or whether demand for share in the sale proceeds is more probable. When viewed from this angle, the points for determination in the appeal under Order 41 Rule 31 CPC would be: (1) Whether the cheque issued by the respondent/plaintiff for a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) could be reasonably presumed to be a loan to the appellant/defendant, when the appellant/defendant and the respondent/plaintiff are both men of adequate financial resources? (2) Whether the case of the appellant, that he only claimed a share of the sale proceeds is probable, particularly when it is stated that such claim was made during the death ceremonies of the father? (3) Whether it is probable that such claim for share in the sale proceeds can be considered in view of the fact that there has actually been a sale of a particular property belonging to the father? (4) Whether in the circumstances, the case of the plaintiff that he had lent Rs.15,00,000/- as loan for purchase of a flat can be taken as a true and honest statement? 15. While considering the scope of an appeal in conjunction with an application filed to receive the additional documents under Order 41 Rule 27 of C.P.C., there is necessity to examine the relevancy of the said documents. However, the appellant should give cogent reasons for not having produced those documents during the course of trial. Order 41 Rule 27 CPC reads as under: Order XLI Appeals from Original Decrees “1. ............ 2. ........... ........... 27. Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 16. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 16. In the affidavit filed in support of the Civil Miscellaneous Petition, the appellant had stated that after filing of the appeal, he had examined the Encumbrance Certificate and had then come to know that there had been several transactions with respect to the property at Saidapet through a Power of Attorney agent of the father and that he had not received a single paise out of such sale consideration received by the family and therefore, the documents are required to establish that the cheque of Rs.15,00,000/- was issued only towards share in the sale consideration. 17. One fact, which disturbs me is that there appears to be an allegation of a Life Certificate having been obtained on 16.12.2015 indicating that the deceased father, who had died on 14.12.2015, was actually alive two days later on 16.12.2015, and a sale deed had also been executed on the basis of such Life Certificate. This fact or non-fact which can be determined only during the course of trial, however indicates that the relationship between the parties is strained to such an extent that they measure it in terms of cheap money and certainly not in terms of brotherly affection. 18. The Hon’ble Supreme Court of India in Malayalam Plantations Ltd. v. State of Kerala, reported in (2010) 13 SCC 487 , held as follows: “14. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 CPC speaks about procedure in respect of disposal of appeals from the original decree. Among various rules, we are concerned with Rule 27 which reads as under: “27. Production of additional evidence in appellate court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. Order 41 CPC speaks about procedure in respect of disposal of appeals from the original decree. Among various rules, we are concerned with Rule 27 which reads as under: “27. Production of additional evidence in appellate court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. Butif (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission.” 15. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh v. Mehar Singh [ (2009) 17 SCC 465 : AIR 2009 SC 354 ] and Shyam Gopal Bindal v. Land Acquisition Officer [ (2010) 2 SCC 316 ]. 16. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. 16. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the appellate court to pronounce the judgment or any other substantial cause of similar nature. 17. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happenings or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case. 18. In the light of the separate application filed under Order 41 Rule 27 CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or the other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or the other as per the mandate of the said provision.” 19. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or the other as per the mandate of the said provision.” 19. When viewed from the angle of the principles as enunciated by the Hon’ble Supreme Court, it will be only appropriate that permission is granted to produce as additional evidence, the documents now sought to be produced. The documents include the sale deeds executed by the Power of Attorney of the father, the construction agreement, the Bank transactions, the Encumbrance certificate, the complaint and the First Information Report lodged against the respondent/plaintiff. 20. To understand the relationship between the parties and the transactions within the family with respect to the immovable property and to understand whether those transactions have a direct nexus with the cheque issued by the respondent/plaintiff, I hold that these documents are required for proper adjudication of the issues framed in the suit and more certainly required to determine the points framed for adjudication in this Appeal Suit. Therefore, C.M.P.No.20299/2021 is allowed. 21. Order 41 Rule 28 is extracted hereunder: Order XLI Appeals from Original Decrees “1. ......... 2. ........... .............. 28. Mode of taking additional evidence - Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.” 22. In view of the above provision, I would retain this Appeal Suit on the file of this Court and I would direct the XV Additional City Civil Court, Chennai, to take further additional evidence to mark these additional documents first by granting permission to the defendant to adduce evidence and further permit such evidence to be tested during cross examination on behalf of the plaintiff. Fresh Documents cannot be marked on the side of the plaintiff. After recording the evidence and marking these documents, which should be done, keeping in mind the principles of admissibility, relevancy, proof and genuinity of the documents, the trial Court may forward the notes of evidence and the documents marked to this Court to enable to continue to hear the present Appeal Suit. 23. After recording the evidence and marking these documents, which should be done, keeping in mind the principles of admissibility, relevancy, proof and genuinity of the documents, the trial Court may forward the notes of evidence and the documents marked to this Court to enable to continue to hear the present Appeal Suit. 23. The evidence should be confined only to the documents, which are now produced and to the circumstances surrounding the sale transactions and whether the appellant herein / defendant in the suit had been given any share in the sale transactions. Let evidence be confined to prove that particular aspect and let it not travel beyond the guidelines given. 24. The XV Additional City Civil Court, Chennai, is directed to record the evidence as aforesaid and forward back the records, on or before 31.10.2022. The Registry is directed to return the original records received from the XV Additional City Civil Court, Chennai back to the said Court along with the original C.M.P.No.20299 of 2021 and the documents filed in the said petition. 25. List this Appeal Suit after report is received from the XV Additional City Civil Court, Chennai in the 1st week of November, 2022 for further hearing. 26. In the result, (i) CMP.No.20299 of 2021 is allowed. (ii) List the Appeal Suit in the 1st week of November 2022 with report from XV Additional City Civil Court, Chennai. (iii) No costs.