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TMI Blog2022 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... below has found that in spite of the existence of better evidence or best evidence in the possession of the plaintiff, he has failed to produce the same before the court. In reply to the applications filed by the plaintiff for production of additional documents, the learned counsel for the defendant drew our attention to the testimony of PW1 wherein he deposed that he is not in possession of any other document(s) to evidence the plaint transaction - According to the court below, there is only a general pleading in the plaint that payments were made to the defendant in several installments through cash as well as through Bank account. Ext. A17 was also produced only at the fag end of the trial. The plaintiff had also not referred to this payment when he was examined as PW1. In the absence of specific pleadings in the plaint regarding this payment and also the omission on the part of PW1 to refer to the same in his testimony, persuaded the court below not to rely on Ext. A17 on the ground that mere entries in the books of account are not sufficient to charge a person with liability, relying on Section 34 of the Evidence Act. However, it needs to be noticed that an amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the plaint. 2. The plaint was filed alleging thus-The plaintiff and defendant, both natives of Kerala, are doing various businesses in Dubai, UAE. They are close associates. In February 2006, the defendant purchased the scheduled properties in which he proposed to start a joint venture business with the plaintiff for developing the properties into a Farm House-Tourism Spot . The estimated cost for the completion of the project was two crore rupees. As requested by the defendant, the plaintiff agreed to invest 50% of the estimated cost of the project in instalments within a period of five years. Accordingly, he paid a total amount of ₹ 2,85,00,4000/-(sic) in instalments, as cash as well as through the bank account of PW2, a friend of the defendant, who in turn handed over the money to the latter. Later on, realizing that the project was not going to materialize due to the inability/failure of the defendant to contribute his share in the business, the plaintiff demanded the money back. The defendant agreed to repay the money and issued Exts. B1 and B2 cheques dated 25.09.2009 drawn on Dhanalakshmi Bank, for an amount of ₹ 1,42,50,000/- each. However, the cheques o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders, which would also be returned on completion of supply of materials. However, during 2010, the plaintiff defaulted payment of 350,000 dirhams to the defendant. The defendant stopped supply of materials and several times demanded payment of the amounts due from the plaintiff. But the same were not cleared. The defendant then stopped all business transactions with the plaintiff and demanded the return of the cheques issued by him as security. However, the plaintiff without returning the same, presented the same to the bank. Hence the defendant contended that Ext. A1 cheque is devoid of any consideration and that the parties had never intended to act upon the same. 4. The court below on the basis of the aforesaid pleadings framed the following issues:- 1) Whether the defendant issued cheque dated 5/5/2010 to the plaintiff towards the discharge of any debt or liability? 2) Whether the cheque was issued as security in the circumstances narrated in the written statement? 3) Whether the plaintiff is entitled to recover the plaint amount from the defendant? 5. The court below after giving opportunity to both sides to adduce oral and documentary evidence and after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant after having received more than ₹ 2 crores from PW2 and handing over the same to the defendant, to which he answered in the negative and stated that the statement is actually true. When he was asked as to why then he had earlier stated that only ₹ 10 to 12 lakhs had been paid, he answered that it was a slip of his tongue. All these statements were made in the chief-examination. In the appeal memorandum a ground is seen taken that PW3 ought to have been declared as a hostile witness and the plaintiff permitted to cross examine him. The plaintiff does not have a case that such request had been made and that the same had been wrongly rejected by the court below. We are not going any further into the said ground as no such argument was advanced on behalf of the plaintiff. PW3 in the cross-examination was also unable to state the exact dates of payment or the exact sum that he is supposed to have received from PW2 and handed over to the defendant. PW3 when asked whether he is in possession of any documents to evidence the payment of money to the defendant, initially answered in the negative. He then stated that he has defective memory as he is suffering from Alzh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the execution of the cheque has been established by the plaintiff, and so the presumption under Section 118 of the Act is available to the plaintiff. The said presumption has not been rebutted by the defendant by setting up a probable defence. Reference was made to the judgment dated 08/12/2021 of the Hon'ble Supreme Court in K.S. Ranganatha v. Vittal Shetty, Criminal Appeal no. 1860/2011, wherein it has been held that when a cheque is drawn and relied upon by the drawee, it would raise a presumption that it is drawn for consideration and that it is a legally recoverable amount. The presumption is of course rebuttable by proving to the contrary. The onus is then on the defendant to raise a probable defence and the standard of proof for rebutting the same is on preponderance of probabilities. Reference was also made to Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited [2016(4) KHC 951] wherein it has been held that a cheque even if issued as security attracts an offence under section 138 of the Act, if on the date of the cheque liability or debt exists or the amount has become legally recoverable. Once issuance of cheque and signature are admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same time, it has to be noted that the plaintiff herein has paid a sum of ₹ 20 odd lakhs, certainly a hefty sum, as court fees before the trial court and this Court. Therefore, had there been no case at all as contended by the defendant, it is improbable for the plaintiff to have paid such a big sum and proceed with the litigation. We hasten to add that this aspect alone cannot be made a ground to conclude that the case set up by the plaintiff is true. However, the mere fact that no complaint has been filed, as pointed out by the learned counsel for the defendant, cannot also be made a ground to totally disbelieve the case of the plaintiff or to non-suit him. 14. As referred to earlier, two applications have been filed by the plaintiff seeking permission for production of additional documents. As per Order 41 Rule 27, a party to an appeal is not entitled to produce additional evidence, whether oral or documentary, before the appellate court. But if he is able to show that the court below had refused to admit evidence which ought to have been admitted; or he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly justified. Merely on establishing any one of the conditions mentioned above, an Appellate Court shall not remand a case to the lower Court. In other words, these twin conditions are conjunctive and not disjunctive. 17. Here we refer to the decision in Mohan Kumar v. State of Madhya Pradesh (2017 KHC 6178). This was a case in which the High Court while dismissing the appellant's first appeal recorded a finding that since the appellant (plaintiff) failed to prove his ownership over the suit land inasmuch as the plaintiff did not examine his vendor to prove his sale deed, the trial court was not justified in decreeing the appellant's suit and granting declaration of ownership in his favour in relation to the suit land. In other words, the High Court was of the view that it was obligatory upon the appellant (plaintiff) to prove his title by examining his vendor and since it was not done, the decree passed by the Trial Court in plaintiff's favour was not legally sustainable. This finding of the High Court, resulted in dismissal of the appeal and the suit as well. The Hon'ble Supreme Court held that, assuming that the High Court was right in its view, it should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.A. No. 1 of 2022, relates to account of some transactions. It is not quite clear from the documents whether they relate to the plaint transaction. It will require the oral evidence of the author of the same or somebody in the know how of the transactions mentioned therein to explain what are recorded therein. As held by the court below it appears that the plaintiff is in possession of evidence that could certainly have thrown light on the controversy. It is true that if a person in possession of best evidence withholds the same from the court, an adverse inference has to be drawn. It is also true that a case cannot be remanded as a matter of course or merely to enable a party to fill up the loopholes or deficiencies in his case. Though it is in the discretion of the court to remand the matter, it has to be exercised judiciously, and on sound judicial principles in the interest of justice. Viewed in this angle/perspective, we think that an opportunity must be given, taking into account the facts and circumstances of the case and also because the stake involved is also quite high. Further, it appears from the materials on record that some transaction in fact exist between the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exts. B1, B2 and A1 cheques, which are admittedly cheques issued by the Banks in Kerala. It is further true that the plaintiff cannot succeed due to the inconsistent stand of the defendant or based on the loopholes or the weakness in the case put-forward by the defendant. However, as held by a single bench of this court in Venugopalan Nair vs. Saraswathy Amma (2013 KHC 3686), Rule 23A of Order 41 CPC gives wide powers to the Appellate court for a remand of the case even when it is found that there was some omission or laches on the part of the party concerned. Hence even though we find some laches on the part of the plaintiff in properly conducting the case and omission or laches on his part in producing all the documentary evidence in his possession to prove his case when the matter had been posted for his evidence, we feel that in the facts and circumstances of the case, interest of justice requires an opportunity to be given to the plaintiff to establish his case. In these circumstances, the appeal is allowed and the impugned judgment and decree of the court below are set aside. The matter is remanded to the trial court for a fresh disposal. The plaintiff is given the liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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