LAKSHMIAMMAL Vs. S SENGAMALAI

JUDGEMENT

(1.) DEFENDANTS are the appellants herein. The averments in the plaint are briefly as follows:- The suit house belongs to the first defendant. The second defendant had transaction with the plaintiff and a sum of Rs. 35,000/- was due from the 2nd defendant to the plaintiff. DEFENDANTS 1 and 2 agreed to sell the suit house to the plaintiff for a sum of Rs. 47,000/- and executed an agreement for the same on 4.10.1980. Out of the sale consideration, the sum of Rs. 35,000/- which was already due from the second d efendant was agreed to be adjusted. A sum of Rs. 3,500/- was paid on the date of agreement as advance and a sum of Rs. 8,500/- was to be paid at the time of registration of the document. Time fixed for completion of the sale deed is by one year. The defendants have not executed the sale deed as agreed in spite of the notice issued by the plaintiff. But they have sent a reply containing false allegations. Hence the suit.

(2.) IN the written statement it is stated as follows:- The second defendant owed a sum of Rs. 47,886/- to the plaintiff while acting as agent of the plaintiff. He repaid Rs. 17,000/- and there was a balance of Rs. 20,853.84 due from the second defendant to the plaintiff, after adjusting Commission, lorry charges, etc. The allegation that a sum of Rs. 35,000/- was due from the second defendant to the plaintiff, that Rs. 3,500/- was paid by the plaintiff as advance are not true. Out of compulsion and coercio n made by the plaintiff, the defendants 1 and 2 have executed a security agreement in respect of the house toward the amount due and payable by the second defendant. The defendants have not entered into an agreement of sale The property is worth more than Rs. 1,25,0000/-. plaintiff is therefore not entitled to the relief of specific performance.

(3.) THE plaintiff has filed the suit for specific performance of the agreement dated 4.10.1980 in which the defendants are said to have agreed to execute the sale deed in favour of the plaintiff in respect of the suit property, for a sum of Rs. 47,000/-. THE plaintiff's further case is that out of the sale consideration of Rs. 47,000/-, Rs. 35,000/- was adjusted towards the amount already due to him from the second defendant who was having business transaction with him. THE second defendant would contend t hat there was a balance due to the plaintiff from him but he has paid Rs. 17,000/- and there was a balance of Rs. 20,853.84/- alone remained to be paid and the version of the plaintiff that Rs. 35,000/- was due is not correct. P.W. 1 in cross-examination has stated that he is having "Thari" in Namakkal and he had transaction with the second defendant regarding the same and he is having accounts for the same. It is specifically admitted by him that there are accounts maintained by him which would show th at a sum of Rs. 35,000/- was due by the second defendant to him. THE payment of Rs. 17,000/- by the second defendant to him is not disputed by the plaintiff. But he would contend that originally, a sum of Rs. 52,000/- was due from the second defendant to the plaintiff and after the payment of Rs. 17,000/- by the second defendant, a sum of Rs. 35,000/- has become due. It is thus seen that both the plaintiff and the second defendant are not agreeable with regard to the actual amount payable by the second defendant to the plaintiff. THE plaintiff having come to court with the version that a sum of Rs. 35,000/- is due to him from the second defendant, he has to prove the same by the best evidence available with him. In the decision reported in Gopal Krishnaji Ketkar v. Mahomed Haji Lathif & others (A.I.R. 1968 S.C. 1413). It has been held that 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 in issue. THE Apex Court further held that it is not a sound practice for those desiring to rely upon a certain state of affairs 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. Since the plaintiff who has come forward with this case that Rs. 35,000/- is due from the second defendant and since it is disputed by the second defendant, the plaintiff ought to have filed the account books which are said to be in his possession in order to establish that a sum of Rs. 35,000/- is really due from the second defendant to him. THE plaintiff having failed to do so in view of the decision referred above, we have to draw an adverse inference that the claim of the plaintiff that a sum of Rs. 35,000 is due from the second defendant to him cannot be true.