JANAKIBAI AND ANOTHER Vs. SHYAMASUNDAR RANDER

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.