Janakibai and Another vs Shyamasundar Rander

K. Sreedhar Rao, J.—The Defendants are the Appellants. The Respondent-Plaintiff filed a suit for specific performance of the oral contract of sale of two suit schedule plots agreed to be sold in favour of Plaintiff by the first Defendant for a consideration of Rs. 35,000/- towards the suit plot bearing No. 71/28 and Rs. 25,000/- towards the suit plot bearing No. 71/29. The Plaintiff contends that immediately after the oral agreement dated 3.11.1975 an advance of Rs. 10,000/- was paid with an mutual understanding that within five months, the balance of amount is to be paid and the registered sale deeds to be executed. A sum of Rs. 25,000/- towards the part of consideration was paid by a cheque. It is said that the husband of first Defendant is a partner of 2nd Defendant- firm and he received the amounts on behalf of first Defendant. The formality of drafting the sale deeds for the purpose of registration on the stamp papers was also completed at the instance of the Defendants, but the Defendants failed to register the deeds. Hence the suit came to be filed.

The Defendants 1 and 2 have filed a joint written statement. The oral agreement to sell the suit plots is admitted. The receipt of consideration of Rs. 10,000/- on the date of agreement and subsequent payment of Rs. 25,000/- by cheque on 24.11.1975 is admitted. The Defendants state that the last payment of Rs. 25,000/- by two cheques issued by Mahalaskshmi Trading Company and Mahalakshmi Enterprises was towards refund made by Bharath Marbles to A.V. Exhibitors. The Bharath Marbles had undertaken to do marble works at Sampige Theatre. Towards the work, certain payments were made. Since the quality of the material was not satisfactory a sum of Rs. 25,000/- by two cheques were refunded to A.V. Exhibitors to which the husband of the first Defendant is one of the partners. Thus contend that the payments by two cheques issued by Mahalakshmi Enterprises and Mahalakshmi Trading Company does not pertain to suit transaction thus disputes the claim of payment of entire sale consideration.

The trial Court holds that the Defendants have failed to prove that the receipt of cheques issued by Mahalakshmi Enterprises and Mahalakshmi Trading Company was made towards payment of A.V. Exhibitors as a refund by the Bharath Marbles and that the Defendants have failed to produce the accounts of the second Defendant-concern and A.V. Exhibitors, therefore comes to the conclusion that the last payment of Rs. 25,000/- made by two cheques is in fact towards the suit transaction, thus upholds the contention of the Plaintiff and decreed the suit. Hence this appeal by the Defendants.

In support of the trial Court judgment, Sri L.S. Varadaraj Iyengar learned Counsel for the Respondent argued that Sri N.M. Annaiah is the husband of the first Defendant and he is the Partner of the second Defendant-firm and as well the firm A.V. Exhibitors. In the joint written statement of the Defendants the receipt of cheques by D.W.1 is admitted but it is specifically contended that the payment made was towards a different transaction not connected with the suit transaction. It is also admitted that the second Defendant-firm and A.V. Exhibitors have maintained accounts but to prove the theory, the Defendants have not produced the account books. Therefore the trial Court was justified in drawing adverse inference that the payment was towards the suit transactions. In this regard relied on the decision of the Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. AIR 1968 SC 1418 is relied on. At page 1416 the following observations are made:

We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

The facts of the cited case discloses that Appellant in that case asserted that the Durga located in Sy. No. 134 was not a public trust and it is their family property. The Bombay High Court with reference to the evidence on record rejected the contention of the Appellant on the ground that the accounts relating to Darga which is admittedly maintained was not produced to prove that the income from the Darga was exclusively enjoyed. Similarly in this case it is argued that when Defendant admits the maintenance of accounts relating to A.V. Exhibitors which should necessarily reflect and support the defence contention. The non-production of accounts would go heavily against the case of the Defendants.

In the oral evidence, the Plaintiff has examined himself as PW.1. The husband of the first Defendant is examined as D.W.1. In the evidence of P.W.1, there is not even a whisper that DW. 1 received the cheques for and on behalf of the first Defendant and towards the suit transaction. The averment in the plaint that husband of the first Defendant received the cheques for and on behalf of the first Defendant and at her instance has remained only a matter of pleading sans any evidence.

The suit properties are the absolute properties of the first Defendant. The earlier two receipts Ex.P.7 and Ex.P.10 are issued by the first Defendant. Only on the basis of the fact that D.W.1 is the husband of the first Defendant and he happened to be the partner of second Defendant-firm and as well A.V. Exhibitors need not necessarily lead to an inference that D.W.1 had authority to act as agent of the first Defendant in respect of suit transaction.

The conditional statement made in the joint written statement about the receipt of disputed cheques by D.W.1 as a payment towards the transaction of A.V. Exhibitors cannot be construed as an admission of the case of the Plaintiff. In fact the theory that DW.1 received two cheques for Rs. 25,000/- at the instructions of the first Defendant and towards the suit transaction is pleaded by amendment to the plaint. The Plaintiff has failed to prove the theory in the evidence. The sole witness for the Plaintiff does not even say anything about this aspect in his self serving evidence, let alone the corroboration. Unless the Plaintiff lays some semblance of evidence, it is not necessary for Defendants to rebut. It is true that when both the parties have placed all the available evidence in their reach, the burden of proof would be on a non-issue but the Plaintiff without proving his case cannot solely rely upon the lapse of non-production of account books on the part of Defendants to argue that adverse inference is to be drawn for non-production of account books.

The minimum the Plaintiff could do was to depose in his evidence that D.W.1 received the two cheques at the instruction of first Defendant and for and on her behalf and towards the suit transaction but the Plaintiff had miserably failed to state so in his evidence and does not make reference to this aspect in any manner. The Plaintiff has also not convincingly proved that draft sale deeds at Ex.P.8 and Ex.P.9 are prepared by the Defendants. If Plaintiff had atleast given evidence in accordance with his pleadings that the cheques were received by D.W.1 with the consent and at the instructions of the first Defendant, then it could be reasonable to assume that Defendants should have proved their defence version. It is only on the basis of the marital relationship between DW.1 and the first Defendant it cannot be argued and inferred that D.W.1 was acting as an agent of the first Defendant when he received those cheques. When the Plaintiff has miserably failed to prove the theory it does not warrant that Plaintiff should succeed for non-production of account books by the Defendants. In that view the ratio laid down by the Supreme Court in AIR 1968 in Gopal Krishnaji Ketkar''s case (supra) has no application to the facts.

In the course of the arguments it was proposed by the Counsel for Respondent that an additional sum of Rs. 5,00,000/- would be paid if the Defendant is agreeable to execute the sale deed. The Counsel for the Appellants placed a counter proposal that Defendants are agreeable to execute the sale deed in favour of only one plot if Plaintiffs forego the claim over the other plot. Both the parties were not agreeable to the proposal of the each other and the case is argued on merits.

The trial Court has grossly misread the facts and evidence while coming to a wrong conclusion that the Plaintiff has paid the entire sale consideration. That apart, the relief of specific performance is an equitable and discretionary relief. The Court need not grant the relief unless the conscience of the Court is satisfied that the case of the Plaintiff is substantially and factually true. The relief need not to be given merely on technical assumptions of burden of proof. In that view, the appeal is allowed. The suit of the Plaintiff is to be dismissed.

The Counsel for the Appellant submits that the Appellant is willing to refund the advance amount with interest at 6% from the date of suit till payment. Accordingly it is directed that the appellant shall refund the advance of Rs. 25,000/- with 6% and a decree to be drawn to that effect.