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2025 DIGILAW 1158 (MAD)

Rajkumar v. Kasthuri Bai

2025-02-26

N.SATHISH KUMAR

body2025
JUDGMENT : (N. SATHISH KUMAR, J.) 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, 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 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 from M/s.Shriram Housing Finance Limited is also paid to the plaintiff through demand draft. 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 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. 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 the plaintiff. 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 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 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. 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 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 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. 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 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 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. 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. 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.