KUNJUMOL GEORGE Vs. JOSE VALIYAVEEDAN

JUDGEMENT

(1.) Revision petitioners are the defendants in O.S.204 of 1997. O.S.204 of 1997 is a suit filed by the respondent herein for realisation of money. Case of the plaintiff is that the defendants had borrowed a sum of Rs. 34,000/- from the plaintiff and executed a promissory note promising to repay the amount with 24% interest. Defendants paid interest up to 1-12-1996 and for the principal amount of Rs. 34,000/- issued a cheque to be drawn from the account of first defendant with District Co-operative Bank Ltd. Thiruvananthapuram Branch. Cheque was presented for encashment but was bounced due to insufficient funds. Plaintiff therefore instituted the suit.

(2.) Defendants filed written statement denying the plaint claim. It was stated that the plaintiff was conducting a chitty under the name and style "Valiyaveedan's Chitty Fund". First defendant was subscriber to the said chitty. First defendant had paid 21 instalments at the rate of Rs. 2000/- per month. Towards the 22nd and 23rd instalments the first defendant had issued two cheques each for Rs. 2000/-. During the course of the chitty defendant had borrowed Rs. 34,000/- from plaintiff and for repayment of the said amount the defendant had given a promissory note and undated cheque. Defendant was bound to pay only the last two instalments amounting to Rs. 4000/- towards the chitty. Plaintiff was examined as PW1. Second defendant was examined as DW1. During the cross examination, PW1 admitted that first defendant was the subscriber of a chitty which was conducted by Valiyaveedan's Chitty Fund of which plaintiff was the Managing Partner. He had also admitted that the ledger, perade and other records of the chitty are in the chitty office. Defendants then filed IA. 1190/98 under Order 11 Rule 14 and Section 151 CPC for directing the plaintiff to produce three items of documents. Plaintiff filed objections stating that defendants have no right to call for the records and the records are not necessary for disposal of the suit. Trial court however, partly allowed the application and the plaintiffs were directed to produce perade and ledger relating to the chitty. It was also directed to produce account books relating to the borrowal of Rs. 34,000/- by defendants on 2-8-1994 and the accounts showing payment of interest till 1-12-1996. Plaintiff did not produce those documents, instead he filed IA. 1317/98 under Order 47, Rule (1) CPC to review the order. Review Petition was dismissed.

(3.) Defendants then filed IA. 1316/98 under Order 11 Rule 21 CPC for dismissal of the suit for noncompliance of the order directing production of documents. Plaintiff filed objection stating that plaintiff was not in a position to produce the same. Trial court after considering all aspects of the matter found that plaintiff was wilfully withholding the records ordered to be produced vide order dated 25-3-1998 in I.A. 1190/98 and there was a wilful attempt to disregard the order of court and consequently the application filed under Order 11 Rule 21 CPC was allowed vide order dated 5-6-1998 and the suit was dismissed in view of the order passed in I.A. 1316/98. Plaintiff then preferred C.M.A. 65 of 1998 against the judgment in O.S. 204 of 1997 dismissing the suit for non prosecution under Order 11 Rule 21 before the Additional Sub Court, Kottayam. Sub Court allowed the appeal holding that the extreme steps for dismissing the suit was unwarranted. Court held that evidence had been adduced by the parties and the court could evaluate the evidence and for failure of producing the document called for, an adverse inference as contemplated under Section 114(g) of the Evidence Act could have been drawn. Aggrieved by the same this Civil Revision Petition has been preferred.