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TMI Blog2014 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... om in any way interfering with the possession of the suit flat till the entire amount was paid to the plaintiff and for payment of costs of the suit, on the ground that after the sale deed was executed in favour of the defendant in respect of the undivided share over the land measuring 290 sq.ft., on 29.11.2004 pursuant to the execution of construction agreement on the same date followed by a cheque for payment of a sum of Rs. 75,860/-, which was not realised due to want of sufficient funds, for which the defendant undertook to make payments, but defaulted in doing so for stage-wise instalments, besides E.B. deposit, Metrowater deposit & drainage deposit and when she failed and neglected to pay a sum of Rs. 3,30,375/-, thereafter, having wrongly filed a complaint before the District Consumer Disputes Redressal Forum, Chennai in C.C. No. 9 of 2006 for handing over vacant possession of the suit flat, the plaintiff was constrained to file the present suit for recovery of the balance amount as per the agreement, since admittedly the plaintiff is entitled to recover a total sum of Rs. 3,76,990/-, inasmuch as Rs. 75,860/- towards cost of unpaid sale price of land; Rs. 1,94,140/- due unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, the defendant filed C.C. No. 9 of 2006 before the District Consumer Disputes Redressal Forum, Chennai for deficiency of service and for a direction to handover the suit flat to her. 3. In reply to the C.C. No. 9 of 2006 filed before the consumer forum, a detailed counter affidavit was filed making a categorical statement that the plaintiff was entitled to a charge over the property under Section 55(4)(b) of the Transfer of Property Act, 1882 without handing over possession to the defendant. It was also further claimed by the plaintiff that as there was a dispute in respect of the payment of sale consideration for the land and also the payment of cost of construction of the flat as per the agreement, there must be an issue in respect of the alleged payment under the disputed receipt on 24.8.2005. Under this background, the trial Court passed a decree directing the defendant to pay a sum of Rs. 3,76,990/- together with interest at the rate of 25% per annum from the date of suit till the date of decree on Rs. 3,30,375/- and thereafter at 6% per annum till the date of realisation, another sum of Rs. 670/- with interest at the rate of 6% per annum from the date of suit till realis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 75,860/- was not realised, since the drawee branch was instructed not to honour the cheque, the unpaid cheque relied upon as Ex. A3 by the plaintiff's side goes to show that the defendant had not paid Rs. 75,860/- towards the cost of the land. While so, towards the agreed construction cost of Rs. 7,44,140/-, when the defendant had paid a sum of Rs. 25,000/- as advance on the date of agreement, namely, 29.11.2004 and another sum of Rs. 3,40,000/- on 13.7.2005 with one another sum of Rs. 2,10,000/- on 31.8.2005, for which two receipts were issued in Exs. A9 and A10, there cannot be any dispute with regard to these facts. As such, out of the total construction cost, the plaintiff claims that the defendant had paid only a sum of Rs. 5,75,000/- and there remains the balance of Rs. 1,94,140/-. Along with this Rs. 1,94,140/-, the defendant was also liable to pay a sum of Rs. 60,375/- towards E.B., metrowater and drainage deposits. Admittedly, this amount also has not been made in violation of the agreement. Besides, the plaintiff had also paid on behalf of the defendant a sum of Rs. 575/- to the Corporation as tax on 20.7.2005 and another sum of Rs. 92/- as metrowater tax on 1.9.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he non payment of Rs. 3,76,990/-. The said approach adopted by the first appellate Court was completely wrong, he pleaded. 7. Learned senior counsel further submitted that when there was a written agreement between the parties to pay a sum of Rs. 7,44,140/- as sale consideration, the defendant had paid a sum of Rs. 25,000/- as advance under the agreement on 29.11.2004, another payment of Rs. 3,40,000/- on 13.7.2005 and one another payment of Rs. 2,10,000/- on 31.8.2005, for which receipts were also issued under Exs. A9 and A10, the plaintiff has proved that a sum of Rs. 5,75,000/- alone was paid and there remains a balance of Rs. 1,94,140/-. That apart, when the plaintiff also claimed that the defendant was liable to pay a sum of Rs. 60,375/- towards E.B., metrowater and drainage deposits, which she failed to pay in violation of the agreement, and it was further claimed that a sum of Rs. 575/- was paid by the plaintiff towards Corporation tax on 20.7.2005 and another sum of Rs. 92/- as metrowater tax on 1.9.2005 as per Exs. A5 & A6 respectively due to the neglect of the defendant, the defendant, by producing the bogus receipt-Ex. B3 dated Nil, counter claimed that a sum of Rs. 3,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 of the Evidence Act permits comparison of signature and writing of a person with others admitted or proved to have been written by that person and even if no expert has been examined, the Court is competent to compare the admitted or proved wrongs with the disputed writing. In view of the above ruling, the trial Court compared the admitted signature of the defendant as found in the plaint and in the Ex. B3, finally, has identified that the signature found in Ex. B3 was forged by the defendant, whereas the first appellate Court, without even dealing with that part of the finding, unfairly and unjustifiably disturbed the well-reasoned judgment of the trial Court, he pleaded. Adding further, Mr. P. Wilson submitted that when it is a well settled legal position that the findings of fact recorded by the trial Court mainly on appreciation of oral evidence should not be lightly disturbed unless the approach of the trial Court in the appraisal of evidence was erroneous, contrary to the well established principles of law, the first appellate Court without bearing in mind this important principle, indeed, forgetting that the trial Court had the advantage and opportunity of seeing the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging Partner of Kartik Homes. To prove that the Ex. B3 is a genuine receipt, the defendant also produced the Exs. A8 & A9 issued by the plaintiff, which are also in the printed format, for the payments received by the plaintiff. In view of the fact that the defendant has proved the payment of Rs. 3,19,970/- under Ex. B3, the further demand made by the plaintiff under Ex. A13 clearly negatives the case of the plaintiff that the defendant had failed to pay the balance sale consideration so as to claim a charge over the flat under Section 55(4)(b) of the Transfer of Property Act, because when the plaintiff, after receipt of the excess amount upto Rs. 9,44,970/-, had failed to handover possession of the flat and came forward with the counter claim of Rs. 3,30,375/- by his letter dated 23.9.2005, the defendant was constrained to approach the District Consumer Disputes Redressal Forum by filing C.C. No. 9 of 2006 seeking a direction to the plaintiff to handover vacant possession of the flat No. F1, First Floor, Door No. 18, Fifth Street, AVM Colony, Virugambakkam, Chennai and also to pay a compensation of Rs. 10 lakhs, for the reason that the plaintiff refused to handover possession. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant had filed the appeal before the first appellate Court against the judgment of the trial Court on the ground that the Presiding Officer took charge only in the first week of January, 2009 and pronounced the judgment on 17.2.2009 without hearing the counsel, despite the fact that the advocates were boycotting the Courts from 2.2.2009 to 28.2.2009, the first appellate Court, accepting this ground, came to the conclusion that it is true that the advocates were boycotting the Courts from 2.2.2009 to 28.2.2009, therefore, the request of the learned counsel for the defendant to re-appreciate the evidence became inevitable to decide the appeal. On this basis, the first appellate Court, in an effort to re-appreciate the evidence, framed the following points for consideration:-- "(i) Whether the appellant paid the sale consideration and the cost of the construction? (ii) Whether the amount claimed by the respondent is supported by the statement of accounts? (iii) Whether the respondent is entitled to create charge over the flat u/s. 55(4)(b) of Transfer of Property Act? (iv) Whether the respondent is entitled to claim interest over the alleged balance of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1,94,140/-. Admittedly, the defendant had paid Rs. 5,75,000/- under Exs. A9 & A10. It was further admitted by the plaintiff that the plaintiff had paid a sum of Rs. 575/- towards Corporation tax on 20.7.2005 for the flat, as it was already constructed and another sum of Rs. 92/- as metrowater tax on 1.9.2005, which are marked as Exs. A5 & A6 respectively due to the neglect of the defendant. On this basis, the balance amount payable by the defendant, as claimed by the plaintiff, shows that the defendant is due and payable a sum of Rs. 3,76,990/- as detailed hereunder:-- 14. As against the above claim, the defendant contended that the total cost of the flat was only Rs. 7,50,000/- and she had paid over and above the said cost and that the above cost of Rs. 7,50,000/- would include the land cost also. On this basis, it was claimed that the claim made by the plaintiff goes against the construction agreement. The trial Court, after perusing clause-4 of the construction agreement, came to the conclusion that the plaintiff was entitled to interest at 25% per annum for the defaulted amount. It could be seen that the construction came to be over on 31.8.2005. Be that as it may, now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarging her burden of proof under Section 101 of the Evidence Act, the burden shifts upon the defendant to disprove the said claim. Although the defendant has claimed that she did pay the above said amount of Rs. 3,19,970/- by way of several cheques on various dates towards part performance of the flat cost under Ex. B3, the payment of Rs. 3,19,970/- by the defendant through cheques on various dates has not been established. One more important thing is that when D.W. 1 conceded in her evidence that a sum of Rs. 3,19,970/- was not paid through cheques as stated in Ex. B3, she has again conceded that Ex. B3 was handed over to ICICI Bank. But there is no evidence let in as to the sanction of loan directly to the plaintiff by the ICICI Bank on receipt of Ex. B3, except the oral claim of D.W. 1. In fact, even though D.W. 1 claimed that she has got receipts for the entire sum of Rs. 3,19,970/-, she was not able to produce any such evidence to disprove the case of the plaintiff. Contrary to the contents of Ex. B3, D.W. 1 would further claim that she had paid the said sum of Rs. 3,19,970/- only in cash. When D.W. 1 in the chief examination claimed to have paid the entire amount of Rs. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant claims to have paid Rs. 3,19,970/-, without paying the said amount, she had filed a complaint before the District Consumer Disputes Redressal Forum, Chennai in C.C. No. 9 of 2006 seeking for a direction against the plaintiff/opposite party therein to hand over vacant possession of Flat F1, First Floor at Door No. 18, Fifth Street, AVM Colony, Virugambakkam, Chennai-89, on the ground that Rs. 3,19,970/- was received by the plaintiff on various dates, but she did not honour the agreement. Very unfortunately, without even properly assessing the claim of the plaintiff/opposite party, the District Consumer Redressal Forum committed a serious mistake in passing a cryptic order, allowing the claim of the defendant/complainant therein, without even any discussion with regard to the payment aspect. Remarkably, in the suit filed by the plaintiff, the undated Receipt under Ex. B3, marked by the defendant claiming payment by her, was proved to be a forged one. The defendant did not prove payment of the aforesaid sum before the District Consumer Redressal Forum/trial Court/lower appellate Court nor before this Court. Thus, her conduct clearly shows that she had filed a misconceiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1 lakh in P. Subramania Chetty v. P.N. Narayana, P.N. Dinesh and Tahsildar, Taluk Office, Pallipattu S.A. No. 441/2012 dated 21.07.2014 (-reported in this issue at 2015-1-L.W. 411). The relevant portion of the judgment is extracted hereunder "It is not in dispute that an appeal under Section 100 CPC can be entertained by the High Court on the substantial question of law. There is no quarrel over this legal position, however, if the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such findings can be interfered with by the High Court in an appeal under Section 100 CPC, because the High Court cannot shut its eyes to perverse findings of courts below. In the present case, the findings of fact arrived at by the courts below are contrary to evidence on record and therefore I am justified in setting aside the same, answering the second substantial question of law in favour of the appellant. Taking note of the conduct of the plaintiffs who have not only misrepresented both the courts, but also intentionally suppressed the compromise decree passed in favour of their father, this Court is inclined to impose an exemplary cost of Rs. 1 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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