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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
MANAKKATT MOHAMMED NIYAS S/O MARAKKAR UMMER – Appellant
Versus
METHUKAYIL VEETTIL UMMER S/O MOHAMMEDALI – Respondent
R.F.A. No. 176 of 2021
Decided On : 06-01-2025
(A) Regular First Appeal - The plaintiff sought to recover 21 Lakh Saudi Riyal from the defendants, alleging a loan based on an agreement dated 1.11.2009. The trial court dismissed the suit, finding insufficient evidence to prove the loan or the authenticity of the agreement. (Paras 7, 11, 24)
(B) Evidence - The court emphasized that the plaintiff failed to substantiate the execution of the agreement with credible evidence, as key witnesses were not examined, and the plaintiff's own admissions contradicted his claims. (Paras 11, 15, 24)
Facts of the case:
The plaintiff claimed to have lent money to the defendants for a business venture, but the defendants contended the agreement was fabricated, asserting it was actually a rental agreement. (Paras 4, 5)
Findings of Court:
The trial court concluded that the plaintiff did not prove the loan transaction and that the evidence presented favored the defendants. (Paras 7, 24)
Issues: The court addressed whether the trial court's finding of insufficient proof of the agreement was erroneous and if a remand for further evidence was warranted. (Paras 10, 11)
Ratio Decidendi: The appellate court ruled that the trial court's dismissal was justified due to the lack of credible evidence from the plaintiff and the contradictions in his claims regarding the agreement. (Paras 15, 24)
Result: Appeal dismissed. (Para 26)
Key Points: - The plaintiff sought to recover 21 Lakh Saudi Riyal, alleging a loan based on an agreement dated 1.11.2009 (!) . - The defendants contended the agreement was fabricated and that the actual transaction was a rental agreement (!) . - A forensic expert report concluded that the questioned signatures on the agreement differed from the standard signatures due to different authorship (!) . - The plaintiff admitted during cross-examination that he had previously testified in a criminal proceeding that the money was an investment in a business rather than a loan (!) . - The appellate court determined that the plaintiff failed to provide substantive evidence to prove the execution of the agreement (!) . - The court held that a remand for further evidence is not permitted to fill lacunae in the evidence when the party had sufficient opportunity to present their case (!) . - The appellate court ruled that it should decide a matter finally if the evidence on record is sufficient, rather than remanding the case (!) . - The appeal was dismissed, and the trial court's judgment was upheld (!) (!) . - The appellant was ordered to pay court fees of Rs. 4,26,640/- as he had proceeded as an indigent person (!) (!) .
JUDGMENT :
A. BADHARUDEEN, J.
1. This Regular First Appeal is at the instance of the plaintiff in O.S. No. 162/2012 on the files of the Sub Court, Tirur, challenging decree and judgment, dated 15.7.2021 therein. Respondents herein are defendants 1 and 2 in the above suit.
2. Heard the learned counsel for the appellant/plaintiff and the learned counsel appearing for the 1st respondent/1st defendant.
3. The parties in this appeal shall be referred as ‘plaintiff’ and ‘defendants’ for brevity and convenience hereafter.
4. Plaintiff filed the suit to realise Rs. 21 Lakh from the defendants. The specific case of the plaintiff is that, on 10.9.2009, the defendants requested the plaintiff to lend 1,65,000/- Saudi Riyal for the purpose of running ZamZam Super Market in Gizan, Saudi Arabia. Pursuant to the said demand, after execution of an agreement on 1.11.2009, entered into between the plaintiff and defendants, plaintiff paid 70,000/- Saudi Riyal to the defendants. That apart, 95,000/- Saudi Riyal, as per the agreement also was given by two installments through the bank account of the 2nd defendant on 10.12.2009 and 10.12.2010. But, the amount was not repaid.
5. Defendants entered appearance and resisted the suit mainly denying the allegation that they owe the amount claimed in the plaint to the plaintiff. According to them, the agreement produced by the plaintiff is a fabricated one, since the signature in the agreement is not that of the 1st defendant. The defendants emphatically denied the agreement dated 1.11.2009, raising specific contention that, on 1.11.2009, an agreement was entered into between the plaintiff and defendants and the same was a rental agreement, as per which, the plaintiff purchased ZamZam Supermarket for a total sum of 1,40,000/- Saudi Riyal, out of which, 70,000/- Saudi Riyal towards the value for the shop and 70,000/- Saudi Riyal was fixed as the value of the goods in the supermarket. The shop was run by Shihabudheen (2nd defendant) and his partner. Accordingly, the plaintiff had given the amount to Shihabudheen and also given management right of the shop to the defendants. It was agreed to give 6,000/- Saudi Riyal as monthly rent to the plaintiff. It was specifically contended by the defendants that the rental agreement, dated 1.11.2009 had been in possession of the defendants in Saudi Arabia and would be produced. That apart, the defendants denied the signature of Ummer (the 1st defendant in the suit document, dated 1.11.2009) and contended that the said signature was forged and fabricated. The specific case of the defendants further is that, in continuation of the rental agreement executed in between the plaintiff and defendants on 1.11.2009, blank stamp papers signed by Shihabudheen were obtained on 1.11.2009 to make an agreement with respect to the transfer of the business. Now, the suit document was fabricated by putting the name and signature of Ummer also. Accordingly, the defendants prayed for dismissal of the suit with cost.
6. The trial court raised three issues and thereafter, tried the matter. PW-1 was examined and Ext.A1 was marked on the side of the plaintiff. DW-1 and DW-2 were examined and Exts.B1 and B2 were marked on the side of the defendants. Ext.C1 Expert report also was marked as Court Exhibit.
7. On analysis of evidence, the trial court dismissed the suit holding that the plaintiff palpably failed to prove that the defendants borrowed 1,65,000/- Saudi Riyal of the plaintiff.
8. While assailing the verdict of the trial court, it is pointed out by the learned counsel for the plaintiff that, by the evidence of PW-1, the execution of Ext.A1, the suit document, is proved. According to the learned counsel for the plaintiff, even though there was attempt made by the plaintiff to examine one Abdul Salam, who is the second witness in Ext.A1 agreement, his examination was adjourned at the instance of the defendants during Covid 19 period and accordingly, his evidence could not be recorded, since he went
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