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TMI Blog2014 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... der Ex. B3 a forged document and attempted to deceive the abovesaid amount, this Court is of the considered view that she should be made to pay the same amount to the plaintiff, accordingly, the defendant is directed to pay a sum of ₹ 3,19,970/- under Ex. B3 to the plaintiff within a period of four weeks from the date of receipt of a copy of this order. Appeal allowed. - S.A. No. 1367 of 2010 - - - Dated:- 5-11-2014 - T. Raja, J. For Appellant: P. Wilson, Senior Counsel for P. Wilson Associates For Respondents: V. Balasubramanian for V. Balasubramanian and Associates JUDGMENT T. Raja, J. 1. The plaintiff before the trial Court is the appellant in this second appeal. For the sake of convenience, the parties are described as they were before the trial Court. The plaintiff had filed the suit praying for a judgment and decree to direct the defendant to pay a sum of ₹ 3,76,990/- together with interest at the rate of 25% per annum on ₹ 2,30,375/- from the date of plaint till the date of realisation with four other reliefs for a direction to the defendant to pay a sum of ₹ 670/- with future interest at the rate of 25% per annum from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While entering into a construction agreement on 29.11.2004, the defendant agreed to pay ₹ 25,000/- as advance and for the balance of ₹ 7,19,110/-, she agreed to pay the same as per the details given as under:-- 2. The plaintiff further admits that the defendant made the payment of ₹ 25,000/- as advance. As agreed by the parties, the suit flat was completed on 31.8.2005. While so, although the defendant paid ₹ 3,40,000/- on 13.7.2005 and ₹ 2,10,000/- on 31.8.2005 towards the construction cost, she failed to pay the balance sale price of ₹ 75,860/- for the land cost and ₹ 60,375/- towards E.B. deposit, metrowater deposit, drainage deposit and the balance construction cost. When the defendant failed to pay the balance sale price of ₹ 75,860/- for the land cost, ₹ 60,375/- towards E.B. deposit, metrowater deposit, drainage deposit and the balance construction cost of ₹ 1,94,140/-, she promised to pay the same after availing loan from ICICI Bank, for which she requested the plaintiff to issue a receipt as if she had paid the margin amount of ₹ 3,19,970/- to the plaintiff to enable the defendant to show the same to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to misread and misinterpret the documents and evidences of the witnesses? (ii) Whether the Lower Appellate Court is correct in law in non-appreciating the evidence of the trial Court and documents filed before the trial Court? (iii) Whether the Lower Appellate Court in law is correct to hold that entire sale consideration is paid by the respondent when the cheque Ex. A3 remains unpaid which forms part of the sale deed namely Ex. A7? (iv) Whether Lower Appellate Court is correct in law in non-appreciating and interpreting Section 55(4)(b) of the Transfer of Property Act as the possession of undivided share was transferred on the date of sale deed itself without appreciating that the suit is for recovery of unpaid sale price and the appellant has a charge over the property sold? 5. Mr. P. Wilson, learned senior counsel appearing for the appellant/plaintiff, while arguing on the first three substantial questions of law as to whether the lower appellate Court is entitled to misread and misinterpret the documents and evidences of the witnesses; whether the lower appellate Court is correct in law in non-appreciating the evidence of the trial Court and documents filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by her. As against all these admissions and confessions made by the defendant before the trial Court with regard to the disputed payment of ₹ 3,19,970/-, without there being any evidence for the payment of ₹ 3,19,970/-, when it has been proved by the plaintiff that the defendant has not paid or proved the payment of the said amount, the first appellate Court, taking unnecessary adverse inference against the plaintiff, wrongly looking at Ex. A3-dishonoured cheque, came to an erroneous conclusion that nowhere the seal of the banker for receipt of the cheque was found and there was no endorsement of the banker to prove the dishonour. The adverse inference wrongly taken by the first appellate Court in the facts of the present case is wholly unwarranted, he pleaded. Moreover, when the plaintiff has admittedly filed the suit for recovery of a sum of ₹ 3,76,990/- together with interest at the rate of 25% per annum on ₹ 2,30,375/- claiming that as per clauses 12 and 33 of the construction agreement, the defendant has failed to pay the entire amount, by specifically establishing before the trial Court that no amount as claimed by the defendant under the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendant that she had paid the said amount of ₹ 3,19,970/- by way of cheques on various dates towards part payment of the flat cost, simultaneously taking a totally different contra stand that the amount was paid in cash, the trial Court disbelieved her case, for the reason that when the defendant claimed that she has got receipts for the entire sum of ₹ 3,19,970/-, she was not able to produce any such receipts in evidence. Further, contrary to the contents of Ex. B3, the defendant claimed that she had paid the same only in cash. Under this heavy contradictory statement, the trial Court decreed the suit as prayed for by the plaintiff. 8. Concluding his arguments, the learned senior counsel submitted that when the trial Court, while discussing in detail the genuineness of Ex. B3 with that of the evidence adduced by the defendant, firstly in chief examination that she had made the above payments through various cheques and secondly in cross examination that she paid the same only by cash, categorically held that the said version cannot be accepted, the first appellate Court, without there being any single evidence as to whether the undated receipt Ex. B3 was genuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay the amount as claimed under Exs. A11 and A13, since the first appellate Court has not even discussed briefly the case of the defendant in the impugned judgment. Further, without keeping in mind what was pleaded, argued by the defendant and discussed by the trial Court with regard to the defence taken by the defendant, the first appellate Court, merely framing the issue whether the finding of the learned XII Assistant Judge, City Civil Court, Chennai in O.S. No. 3192 of 2006 dated 17.2.2009 is liable to be dismissed for the reasons stated in the grounds of appeal, wrongly allowed the appeal. On this basis, the learned senior counsel prayed for setting aside the impugned judgment. 10. Learned counsel appearing for the defendant submitted that when the total cost of the flat was only ₹ 7,50,000/- and that the defendant had already paid over and above the said amount, the claim made by the plaintiff was against the agreements Exs. A2 and A7. Adding further, he has stated that a perusal of clause 4 of the construction agreement clearly shows that the plaintiff is entitled to interest at the rate of 25% per annum for the defaulted amount. But in the present case, a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 9,44,970/- as against the agreed sum under the construction agreement of ₹ 7,44,110/- and on receipt of the said amount the plaintiff failed to handover possession of the flat, the consumer forum, after a heavy contest, came to the conclusion that the entire amount for the construction of the flat had already been paid by the defendant to the plaintiff and as such, the plaintiff was not entitled to have any lien over the flat. On this basis, the complaint filed by the defendant was allowed directing the plaintiff to handover vacant possession of the flat immediately. Therefore, once again the plaintiff cannot complain that Ex. B3, under which the defendant claimed to have paid a sum of ₹ 3,19,970/-, was a forged one. 11. Finally, assailing the approach adopted by the trial Court in decreeing the suit during the day of boycott of Courts by the Advocates from 2.2.2009 to 28.2.2009, during which period no counsel appeared before the Court, the learned counsel pleaded that the trial Court had passed an order without hearing the defendant, as a result, she was unable to adduce evidence and cross examine the other side. But the first appellate Court has right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant. The averments made by the plaintiff in O.S. No. 3192 of 2006 and the averments made by the defendant as complainant before the District Consumer Disputes Redressal Forum in C.C. No. 9 of 2006 clearly show that the plaintiff and the defendant entered into a construction agreement dated 29.11.2004, under which the defendant agreed to purchase 290 sq.ft., of undivided share of land from and out of 'A' schedule land having built up area of 700 sq.ft., in the first floor for a lumpsum consideration of ₹ 7,44,110/-. On the said date, the agreement shows that the defendant had paid a sum of ₹ 25,000/- as advance and agreed to pay the balance amount of ₹ 7,19,110/- on the following dates:-- Clause-4 of the agreement indicates that if any of the instalment is unpaid after due notice, the allottee shall be liable to pay interest calculated at 25% per annum on the overdue instalments from the date of default till the date of payment to the Developer. Clause-5 of the agreement also shows that if the allottee fails to pay the overdues, then the Developer shall be at liberty to terminate the contract by giving thirty days written notice and the Develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 3,19,970/- was paid by way of cheques on various dates towards part payment of the flat cost. If this recital in Ex. B3 is true, it will be easy for the defendant to establish such payments through cheques. But the defendant has not resorted to produce any cheques to prove that she has paid the amount under Ex. B3, so as to disprove the claim of the plaintiff that she has not paid ₹ 3,19,970/-. In this connection, it may be useful to refer to Section 101 of the Evidence Act, which reads as under:-- 101. Burden of proof.-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 15. A careful perusal of the above section clearly shows that if anyone approaches the Court to give a judgment on any legal right or liability depending on the existence of facts which the person who approaches the Court asserts, must prove that such facts exist by discharging his burden. In the present case, when the plaintiff, right from the day of execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 25% per annum on ₹ 2,30,375/- from the date of plaint till the date of realisation and for a direction to pay a sum of ₹ 670/- with future interest at the rate of 25% per annum from the date of filing the suit till the date of realisation as well as for a declaration that the plaintiff is having a charge over the suit schedule flat as per Section 55(4)(b) of the Transfer of Property Act and for permanent injunction restraining the defendant and her men from in any way interfering with the possession of the suit flat till the entire amount was paid to the plaintiff. Sadly, the first appellate Court, without even answering how the defendant has dispelled the proven claim made by the plaintiff with regard to the payment of ₹ 3,19,970/- under Ex. B3, unnecessarily misplacing the burden of proof under Section 101 of the Evidence Act, has wrongly disturbed the well-reasoned judgment of the trial Court. In view of the above, by answering the substantial questions of law in favour of the plaintiff, this Court is unable to support the impugned judgment, since the evidence on record were completely misread, more particularly, Ex. B3 by the first appellate Court. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief. This Rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. 18. Today some of the litigants do not have fear or know the consequences of misleading the court, the reason is that when the courts on certain occasions show its liberal approach on various reasons such approach is being understood by some litigants. This has given rise to huge docket population in the courts which results denial of timely justice to the needy citizens therefore, at times the courts have to send some message to wrong doer as an eye opener. 19. Useful reference can be had from the judgment of the Apex Court in State of Maharashtra and others v. Sarangharsingh Shivdassingh Chavan and another, 2011-1-L.W. (Crl.) 75 : 2011 (1) SCC 577, wherein, in similar and identical circumstances, taking note of the fact that an affidavit filed by the litigant was clearly misleading, differing with the less imposition of fine of ₹ 25,000/- by the High Court of Bombay has imposed the exemplary cost of ₹ 10,00,000/- on the Maharashtra Government. 20. In yet another occasion, the Apex Court in Ramrameshwari Devi v. Nirmala D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . B3/forged receipt to show as if she had paid ₹ 3,19,970/- to the plaintiff. Clear findings have been given by the trial Court that the defendant had marked the forged receipt under Ex. B3 to disprove and defeat the plaintiff's case and claim. She continued here falsehood before the learned first appellate court. Even before this Court, the defendant resorted to the same deceiving tactics by building up a false claim on the fake document-Ex. B3. When a party approaches the High Court, he/she must place all the facts before the Court without any reservation and if there is a false statement or a twisted fact placed before Court, then the Court should not hesitate to curb such practice by imposing exemplary costs, in the present case, when the defendant made a false story before the District Consumer Forum against the plaintiff that she had paid a huge amount of ₹ 3,19,970/- under Ex. B3 a forged document and attempted to deceive the abovesaid amount, this Court is of the considered view that she should be made to pay the same amount to the plaintiff, accordingly, the defendant is directed to pay a sum of ₹ 3,19,970/- under Ex. B3 to the plaintiff within a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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