THOMAS JOSEPH Vs. ANTONY JOSE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree delivered by the District Judge, Kottayam in A. S. No. 175 of 1986. The plaintiff is the appellant and the defendant is the respondent. The plaintiff - appellant filed a suit in O. S. No. 333 of 1984 in the Munsiff's Court, Changanacherry for recovery of money on the ground that he sold his Jeep bearing No. K.L.O. 9763 to the respondent on 3.9.1981. Towards the sale price Ext. A1 cheque was given by the respondent to the appellant for a sum of Rs. 13,000/-. When the cheque was presented it was dishonoured. Thereafter a sum of Rs. 4,500/- was paid by the respondent in cash and gave yet another cheque for a sum of Rs. 4,500/- on 20.9.1981. That was also dishonoured. Therefore for the balance amount of Rs. 8,500/- and for interest the suit was filed. The suit was resisted by the respondent on the ground that the appellant had borrowed an amount of Rs. 8,500/- from one Dileep Kumar, a partner of the respondent by pledging the R.C. Book of the said jeep. Since the said amount was not paid, the jeep was seized by Dileep Kumar. Thereafter on 12.6.1981 both Dileep Kumar and the appellant went to the house of the respondent who then paid a sum of Rs. 8,500/- to the appellant for which Ext. B2 Karar was executed. Before then, on 7.6.1981 a letter Ext. B1 was sent by the appellant to Dileep Kumar (DW 2) requesting to release the jeep. But he did not release. After the payment of Rs. 8,500/- on 12.6.1981, for the balance of Rs. 4,500/-, Ext. A4 cheque was given by the respondent to the appellant. That cheque was also dishonoured. Therefore, on the instruction of the respondent DW 2 paid the said sum of Rs. 4,500/- to the appellant. Thus the entire sale price was paid by the respondent to the appellant. Hence the suit is a false one and is liable to be dismissed.

(2.) The Trial Court on examining both the oral and documentary evidence dismissed the suit on the main ground that under Ext. B2 Karar dated 12.6.1981 sum of Rs. 8,500/- has been received by the appellant and thereafter also he received Rs. 4,500/- in cash under Ext. B3 dated 28.9.1981 and therefore no amount is due to the appellant from the respondent. Yet another ground for dismissal would be that Ext. A7 issued on 30.10.1985, a copy of the registration particulars of the suit jeep, is a fabricated document and therefore it cannot be acted upon, because the said document has been prepared on a Sunday, namely, 28.6.1981. As against the judgment of the Trial Court, the appellant preferred an appeal in A.S. No. 175 of 1986, as pointed out above, before the District Court, Kottayam which confirmed the judgment of the Trial Court by dismissing the appeal.

(3.) Now the appellant plaintiff has come forward with this appeal before this Court. The main contentions of the learned Counsel appearing for the appellant would be that DW 2 Dileep Kumar and the respondent admittedly are partners in a business and therefore DW 2 ought to have known the purchase of the jeep by the respondent from the appellant. When that be the case, DW 2 would not go to the extent of seizing the jeep for the loan which he had advanced to the appellant by getting the R.C. Book the said jeep as security. Further, Ext. B2 Karar dated 12.6.1981 was not at all executed by the appellant and it is a fabricated one, and above all it is not established as required by law. Ext. B3 receipt dated 28.9.1981 is also a fabricated one in view of the fact that the vehicle was already sold by the respondent as per Ext. A7 even on 26.8.81. As against the above contentions, the learned Counsel appearing for the respondent would submit that Ext. A7 has been prepared on 28.6.1981 which was a Sunday, that therefore it can be rightly said that Ext. A7 is a fabricated document and no evidentiary value can be attached to it, that under Ext. B2 dated 12.6.1981 the respondent himself paid a sum of Rs. 8,500/- to the appellant who also put his signature in Ext. B2, that he then gave the said amount to DW 2 for his loan and that DW 2 is also an attestor of Ext. B2. Both the defendant and DW 2 Dileep Kumar speak of Ext. B2 and therefore it can be rightly said that Ext. B2 has been established in accordance with law. Further, the learned Counsel appearing for the respondent submitted that even the receipt of Rs. 4,500/- by the appellant from DW 2 on 28.9.81 under Ext. B3 has been established and his last submission would be that no amount is due from the respondent to the appellant. From the above submissions of both the learned Counsel, the material questions to be answered are whether Exts. B2 and B3 have been established and whether Ext. A7 is a genuine document. In answering the above two questions raised on Exts. B2, B3 and A7, I feel, a correct conclusion can be arrived at. It is an admitted ground that the appellant, respondent and DW 2 are close friends, hailing from the same place and there was no bitter enmity at any point of time among themselves. This is an important aspect because if really the entire amount has been paid by the respondent to the appellant, the appellant would not normally go to the extent of filing a false suit for the recovery of the said amount. However, apart from the above circumstance, namely, close and cordial relationship between the parties, as I have pointed out above, we have to discuss the above three documents, namely, Exts. A7, B2 and B3 to find out the truth. Before then, I feel that it is better to discuss Ext. B1 letter dated 7.6.81. This letter, according to the respondent, was written by the appellant to Dileep Kumar after the seizure of the suit jeep, requesting him to return the jeep to his driver Vikraman with an undertaking that he would repay the loan due to Dileep Kumar within a short period of five days. The above submission of the respondent was denied by the appellant on the ground that Ext. B1 is not relating to the suit jeep and it relates to the sale of the jeep of his brother and only his brother had to pay the loan to DW 2. PW 2, the driver through whom Ext. B1 letter was said to have been sent swears that it was not Ext. B1 letter which was handed over to him. In the above surrounding circumstances I opined that Ext. B1 would not advance either the case of the respondent or support the case of the appellant. As I have pointed out above, the correct conclusion can be arrived at by the three documents Exts. A7, B2 and B3. Ext. B2, according to the respondent was executed by the appellant on 12.4.1981 receiving a sum of Rs. 8,500/- from him. The signature in Ext. B2 is denied by the appellant. Ext. B2 is said to have been written by one A. N. Raghavan who admittedly is alive and who does not belong to the community of the appellant or respondent. Yet another signature in Ext. B2 would be that of DW 2, Dileep Kumar as attestor, who is none other than the partner of the respondent. Therefore, his evidence is nothing but an interested one and therefore it is not safe to accept the contents of Ext. B2 believing the sole evidence of DW 2, especially, when the writer of the document who belongs to some other community is not examined. No explanation has been offered by the respondent as to why he has not chosen to examine the writer of Ext. B2 to establish the contents of the same. The next point would he the alleged signature of the appellant in Ext. B2. Both the courts have wrongly come to the conclusion only by a comparison of the disputed signature in Ext. B2 with the admitted signature of the appellant. No doubt, such comparison can be taken into consideration for collateral purposes, namely, for supporting the material evidence with reference to the contents of the document and that cannot be taken as a substantive evidence to establish the contents of the documents, particularly, when proper witness, namely, writer of the document is available so speak of the contents. In short, my opinion would be that the contents of Ext. B2 are not established by the respondent. Regarding Ext. B3, it is a case of the respondent that when Ext. A4 cheque was dishonoured, on his instruction DW 2 paid a sum of Rs. 4,500/- to the appellant and got back the R.C. Book. That contention is also falsified by Ext. A7 because of the evidence of the respondent as DW 1 would evince that he had already sold the vehicle on 28.6.81 to one V. K. Joseph and the registration certificates have been transferred to him. That fact is seen in Ext. A7 itself. Therefore the statement in Ext. B3 that the R.C. Book was received by DW 2 on 28.9.81 is nothing but a false statement. Further, there is another circumstance which cannot be normally believed in the ordinary course of nature. For really the R.C. Book was handed over to DW 2 by the appellant on 28.9.81, DW 2 ought to have received the dishonoured cheque Ext. A4 also from the appellant on that particular date. For this contingency, I find no proper explanation from the side of the respondent. Further, it is admitted by the learned counsel appearing for the appellant that a sum of Rs. 4,500/- was already received by the appellant and therefore for the balance amount of Rs. 8,500/- he has filed this suit. So far as Ext. A7 is concerned, both the courts below have gone to the wrong conclusion. In Ext. A7 it has been stated that the vehicle has been transferred to one V. K. Joseph with effect from 28.6.81, a Sunday. The view of the Courts below on Ext. A7 would be that on Sunday there might not be any transaction and therefore Ext. A7 is a fabricated document. That view on Ext. A7 is thoroughly wrong because a vehicle can be transferred by a vendor to his purchaser on any holiday. Later on registration will be made or effected in the R.T.O. office on a working day. In the instant case, Ext. A7 makes it clear that the vehicle was transferred on a Sunday by the respondent to V. K. Joseph. Ext. A7 has been prepared on a subsequent date, a working day. Ext. A7 is a copy of the registration particulars, a public document. Therefore it can be presumed that it has been prepared in the course of official business in accordance with law until and otherwise it is rebutted by the other side. As I have pointed out above, when the vehicle has already been sold and the registration has also been made in the name of V. K. Joseph earlier in the month of June 1981, in no stretch of imagination, it can be believed that the R.C. Book was transferred or given to DW 2 on 28.9.81. When I examine the above documents as well as the oral evidence adduced by both sides very carefully I am fully satisfied to hold that towards the sale consideration a sum of Rs. 8,500/- was due for which the appellant has rightly filed the suit. Therefore, in short, the conclusions arrived at by both the courts below in rejecting the claim of the appellant are not sustainable and therefore liable to be set aside. As concluded above, the answers on the footing of Exts. A7, B2 and B3 would be in favour of the appellant.