This Appeal Suit has been filed against the Judgment and Decree of the learned Subordinate Judge, at Devakottai, in O.S. No.118 of 1995, dated 29.06.1998.
2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
3. The defendant in the suit in O.S.No.118 of 1995 on the file of the Subordinate Court, Devakottai, is the first appellant in the above appeal. The respondent in the appeal has filed the above suit for recovery of a sum of Rs.6,79,333.30/- with interest at 12% p.a., on the sum of Rs.5,00,000/- from the date of plaint and with future interest at 12% p.a., till realization. During the pendency of this appeal, the defendant/appellant died and his legal representatives have come on records as appellants 2 to 4.
4. The case of the respondent/plaintiff in the suit are as follows:- The defendant is the plaintiff's younger brother and the plaintiff and the defendant are the sons of AL.VR.ST.Veerapa Chettiyar and Unnamalai Achi. The said Veerapa Chettiyar predeceased Unnamalai Achi.
5. As between the plaintiff and the defendant, there was an oral family arrangement regarding partition of the properties of the family at Devaram Village. This oral family arrangement was evidenced and also written as Yadast, dated 25.12.1985. The defendant, the plaintiff's younger brother was in the management of the family properties at Devaram Village. A house property which was purchased in the name of the defendant was allotted to the plaintiff and it was agreed that the defendant should execute suitable document conveying the property in favour of the plaintiff. However, during this arrangement, the defendant alienated the said house and there was a dispute. Similarly, the defendant was managing the properties at Devaram Village, there was some dispute because of the failure of the defendant to render accounts. It was only to resolve the dispute, the oral family arrangement as intended in the Yadast was necessitated during the last week of April 1988. As per the family arrangement, the defendant agreed to pay a sum of Rs.5,00,000/- out of the amount lying in Court deposit in the name of the mother of the plaintiff Unnamalai Achi as soon as the money was withdrawn from the Court.
6. In the furtherance of the family arrangement, the defendant executed a Promissory Note for the said sum of Rs.5,00,000/- as security and another letter, dated 28.04.1988 at Devakottai. In that letter, the defendant undertook to pay the said sum of Rs.5,00,000/- without interest out of the amount lying in the Court deposit in the Subordinate Court, Periyakulam, in the name of Unnamalai Achi. As soon as the amount was withdrawn from the Court, the defendant admitted his liability to pay a sum of Rs.5,00,000/- to the plaintiff and undertook to pay the said sum.
7. The defendant did not repay the said amount of Rs.5,00,000/-, even after the amount in the Court deposit was withdrawn by Unnamalai Achi, on 21.08.1992. The defendant is estopped in law from disputing his liability to pay the amount.
8. From the reading of the plaint, the case of the plaintiff rests on the oral family arrangement, dated 25.12.1985 and the legal obligation of the defendant to honour his promise to pay to the plaintiff as part of the family arrangement which was acknowledged by the defendant under the Promissory Note, dated 28.04.1988 and the letter dated 28.04.1988.
9. The suit was contested by the defendant by filing a detailed written statement, in the following lines:-
a) The Promissory Note and the Varthamanam letter are devoid of consideration and hence they are invalid and unenforceable.
b) Either on 28.04.1988 or on any subsequent date, no amount mentioned in the Promissory Note and in the Varthamanam letter was paid to the defendant by the plaintiff and hence, there is no consideration for the Promissory Note and Varthamanam letter, dated 28.04.1988.
c) There was no promise by the defendant under the letter to pay the money by himself out of his own funds to the plaintiff. The Varthamanam letter, dated 28.04.1988 envisages that the defendant would make payment to the plaintiff only upon getting the amount which is lying in the Court deposit from Unnamalai Achi. Since the payment undertaken by the defendant depended solely on the happening of certain event, namely, the willingness of Unnamalai Achi who was in possession of funds to give the defendant to make offer the same to the plaintiff, unless it is shown that the defendant had received the amount from Unnamalai Achi, the defendant cannot be compelled to make payment in terms of the Varthamanam letter. Since the defendant did not receive any money from Unnamalai Achi, the Varthamanam letter is not legally enforceable and devoid of consideration.
d) The Promissory Note as well as the Varthamanam letter were not executed by the defendant out of his free Will. The said documents were forcibly obtained by the plaintiff at the time of compromise that was entered into in the suit in O.S.No.17 of 1983, to which AR.Ponnazhagu Ammai Achi, the wife of the plaintiff was a party. The suit in O.S.No.17 of 1983 was compromised and the plaintiff's wife also had signed the compromise memo, as she was the 15th defendant in the suit. It was at that time, the plaintiff wanted an assurance from the defendant. In these circumstances, the defendant was compelled to sign and hand over the Varthamanam letter and the Promissory Note for getting a compromise decree in the suit in O.S.No.17 of 1983.
e) Unnamalai Achi, a self willed women did not part with any amount in favour of the plaintiff and hence, the letter executed by the defendant to the plaintiff remained as an exercise in futility incapable of enforcement.
f) There was no other dispute during the last week of April 1988 as between the plaintiff and the defendant and such dispute is projected to give some semblance of validity, support and life to the two documents which were obtained from the defendant by compulsion. Since the documents were given only for getting the consent of the plaintiff's wife to compromise the suit in O.S.No.17 of 1983, the plaintiff is not entitled to seek enforcement through the Court.
g) The Yadast(agreement), dated 25.12.1985, is nothing to do with the suit claim or the Promissory Note and the Varthamanam letter. There was never any family arrangement behind the agreement, dated 25.12.1985. The plaintiff, only to receive the amount, has introduced several false oral arrangements at every stage just for the purpose of giving the solemnity and support to his false case. The agreement, dated 25.12.1985, was only a memo of understanding for future guidance and course of action among the brothers in respect of certain prevailing matters which had worked itself out long ago, by a mutual forbearance to give and take by both sides. All issues arose between the parties based on the agreement, dated 25.12.1985 were resolved long back and the agreement, dated 25.12.1985 had lost its teeth long time back.
h) The defendant was not in management of the family properties and his participation was minimum only to carry out the wishes and desires of Unnamalai Achi and to help her in the conduct of the suit in O.S.No.17 of 1983. Therefore, the story of the plaintiff that the consideration for executing the Promissory Note and the Varthamanam letter was due to the failure in adhering to the agreement, dated 25.12.1985, are false and devoid of any merits.
i) The plaintiff had earlier filed the suit on the Promissory Note and the same was dismissed. Hence, it is not open to the plaintiff to file another suit for the same cause of action.
j) The suit claim is excessive and barred by limitation, as it was filed almost 7 years and 4 months after the date of Promissory Note, especially, when there is no acknowledgement of the liability any time in the middle. The claim on the basis of the Varthamanam letter is also barred by time.
k) The withdrawal of the amount by Unnamalai Achi can never be said to be a cause of action for the suit and the suit is therefore misconceived and barred by limitation and liable to be dismissed for more than one reason.
10. Even assuming that the defendant is liable to pay some amount, the plaintiff is not entitled to interest, as there was no agreement to pay interest and the agreement was only a conditional or contingent offer in the event of getting the amount from Unnamalai Achi, after it is withdrawn by Unnamalai Achi.
11. Before the trial Court, the plaintiff examined himself as P.W.1 and the defendant was examined as D.W.1. The plaintiff filed four documents marked as Ex.A.1 to Ex.A.4. The defendant filed 15 documents marked as Ex.B.1 to Ex.B.15. The trial Court after framing as many as 8 issues, decreed the suit, after finding all the issues in favour of the plaintiff. Aggrieved by the Judgment and Decree of the trial Court, the defendant has preferred the above appeal.
12. The learned counsel for the appellants raised several grounds questioning the Judgment of the trial Court.
13. The learned counsel for the respondent submitted that the Judgment of the trial Court does not warrant interference, as the trial Court has considered the pleadings and documents in a proper prospective and came to the right conclusion with regard to the liability of the defendant as per the Varthamanam letter following the family arrangement.
14. Having regard to the nature of the pleadings and points raised and evidence let in by both sides, this Court is inclined to frame the following points for determination:-
1) Whether the family arrangement alleged to have been entered into on 25.12.1985 is valid and proved?
2) Whether the Varthamanam letter, dated 28.04.1988 and the Promissory Note were executed for consideration?
3) Whether the Promissory Note and Varthamanam letter, can be relied upon to prove the liability of defendant?
4) Whether the suit is barred by limitation?
5) Whether the present suit for recovery of money is maintainable, after the plaint was rejected in the previous suit which was for recovery of money based on the Promissory Note?
6) Whether the plaintiff is entitled to interest and if so, at what percentage?
15. Point No.1 In the present case, the family arrangement, dated 25.12.1985, is not seriously disputed. However, the defendant has taken a specific stand with regard to validity of the oral family arrangement and the Yadast, dated 25.12.1985. The contents of the document in Ex.A.1, dated 25.12.1985 is not in dispute and Ex.A1 reveals that there was an understanding between the plaintiff and the defendant regarding the share of several properties of the family. It appears that the house in Devaram village was agreed to be given to the plaintiff. By this agreement under Ex.A.1, the defendant agreed to execute a deed of conveyance in favour of the plaintiff in respect of the house at Devaram. From the evidence of P.W.1 and D.W.1, it is seen that both of them admitted that this document, namely, the agreement, dated 25.12.1985 was entered into between parties consequent to the oral family arrangement. The present suit is not a suit to enforce the agreement, dated 25.12.1985. The agreement, dated 25.12.1985 is relied upon by the plaintiff only to show that the Promissory Note and that the Varthamanam letter, Ex.A.2 and Ex.A.3 are supported by considerations. The fact that the defendant had agreed to give the house at Devaram free of cost is not in dispute. Though it is case of the defendant that the dispute arose between the parties with reference to the agreement, dated 25.12.1985 is over long back and that there was no issue between the parties; absolutely there is no evidence or scrap of paper produced before this court to suggest that the plaintiff's grievance due to the non-performance on the terms of the family arrangement was addressed and settled long back. The manner in which the plaintiff was convinced not to claim the house from the defendant is neither stated nor explained at least in the oral evidence of the defendant. In such circumstances, this Court is of the view that there was an oral family arrangement and in pursuant to the said oral arrangement an Yadast, namely, the document, dated 25.12.1985, signed by the plaintiff and the defendant came into existence. The fact that the defendant sold the house which he had agreed to convey in favour of the plaintiff is admitted. This Court has therefore reason to believe that the defendant was liable to compensate the plaintiff for selling and appropriating sale proceeds of the property of the family which was agreed to be given to the plaintiff by the defendant, in the family arrangement.
16. Point No.2 It is the specific case of the plaintiff that the consideration for executing the Promissory Note and the Varthamanam letter, dated 28.04.1988 is the obligation of the defendant to compensate the plaintiff on account of the loss occasioned to the plaintiff by the conduct of the defendant in selling the property which was agreed to be given to the plaintiff. Since the defendant has not given any independent evidence to prove that the plaintiff was adequately compensated earlier and that there was an amicable settlement of issues due to failure of defendant to honour his obligation under the family arrangement, this Court is inclined to hold that the Promissory Note and the Varthamanam letter which was in Ex.A.2 and Ex.A.3 are supported by the consideration as pleaded by the plaintiff.
17. It is also admitted that the defendant was administering the properties of the joint family for some time. Though it is stated by the defendant that the properties of the family are looked after only by the receiver appointed by the Court, it is conceded before this court that the family had vast properties and that the properties which were managed and administered by the Advocate receiver are only the properties which are the subject matter of the suit in O.S.No.17 of 1983 on the file of the Subordinate Court, Periyakulam. Therefore, it is possible and probable that the defendant had agreed to give some money to the plaintiff, as he was out of enjoyment of any of the family properties in which both the plaintiff and the defendant are entitled to equal shares. The defendant in his cross examination has categorically admitted his signature in Ex.A.1 Agreement and his commitment to execute a Sale Deed in respect of the house at Devaram. He also stated that he signed in the Varthamanam letter and in the Promissory Note, only because of the compelling circumstances created by the plaintiff by threatening the parties that he would not allow his wife to sign in the compromise memo unless the defendant execute the Varthamanam letter and Promissory Note, promissing to pay a sum of Rs.5,00,000/-. Even if the version stated by the defendant is true, it only shows that the plaintiff put a condition to the defendant to get his wife's signature in the compromise memo. It was open to the defendant not to agree for any terms and to refuse to sign in the Varthamanam letter and the Promissory Note. After signing the documents in Ex.A.2 and Ex.A.3, the defendant cannot complain that he was forced to execute the Promissory Note and the Varthamanam letter and compromised to pay a sum of Rs.5,00,000/- by force or by illegal means. It was only to compensate the plaintiff, it appears that the plaintiff has insisted the defendant to execute the Promissory Note and the Varthamanam letter. It may be true that the plaintiff has utilised the opportunity when the defendant came to him to get the signature of the plaintiff's wife in the compromise memo in the suit in O.S.No.17 of 1983 on the file of the Subordinate Court, Periyakulam. Hence, there is no reason to accept the case of the defendant that the documents Ex.A.2 and Ex.A.3 were executed by coercion. What is to be considered in this case is whether there was consideration for the Promissory Note and the Varthamanam letter. The suit is not for recovery of money on the Promissory Note under Ex.A.2 or the Varthamanam letter under Ex.A.3. The suit is on the basis of original cause of action whereby the defendant had promised to make payment of a sum of Rs.5,00,000/- immediately after the money which was lying to the credit in the suit in O.S.No.17 of 1983 is withdrawn.
18. The fact that the money was available in the Court deposit and that the amount is likely to be withdrawn by Unnamalai Achi, the mother of the plaintiff and the defendant is not in dispute. Though the money is payable to Unnamalai Achi, the fact that the said Unnamalai Achi had executed a Will bequeathing several properties including the amount which is lying to the credit of the suit is not in dispute. In such circumstances, the intention of the parties at the time of execution of the Promissory Note and the Varthamanam letter is very clear that the defendant is liable to pay the money which he had undertaken to pay as per the Promissory Note and the Varthamanam letter and that the money is payable immediately upon the withdrawal of the amount by Unnamalai Achi from the Court deposit. So, it was the legal obligation of the defendant to pay the money to the plaintiff. The concession that was given by the plaintiff to pay the same out of the amount the defendant received from Unnamalai Achi did not alter the legal obligation of the defendant. The fact that the defendant's mother, Unnamalai Achi received the money by cheque is admitted by the defendant. During his evidence, unfortunately, Unnamalai Achi died within 1 year from the date of getting the money from the Court. There is no evidence as to how the money which was available with Unnamalai Achi was spent during or after her life time. Since the mother Unnamalai Achi executed the Will, it can be taken that the defendant was very close to her mother than the plaintiff. Since the defendant was looking after the case, his obligation to pay the sum of Rs.5,00,000/- to the plaintiff might be known to Unnamalai Achi. Having regard to the attending circumstances and facts, the defendant is expected to be in possession of some material documents as to the availability or non- availability of funds left by Unnamalai Achi. In this aspect, Court can draw legitimately adverse inference against the defendant for non-production of any evidence regarding the money received from Court deposit. Even as per the Will, it is admitted that the defendant's mother had given the money to him. The defendant has admitted that he was doing agriculture in large scale and that his mother has given several other properties apart from the properties referred to in the Will executed by her in his favour. After admitting the document Ex.A.1, the defendant also stated that he was compelled to execute the document under Ex.A.2 and Ex.A.3. His evidence gives an overall impression that he is not speaking the truth in full. The contradictions in his evidence is variance to his own pleadings, makes this Court to observe that his evidence is not trust worthy. In these circumstances, this Court is of the view that the Promissory Note and Varthamanam letter was for considation and that the defendant had promised to pay a sum of Rupees Five Lakhs in furtherence of a family arrangement.
19. Point No.3 As indicated earlier, the Promissory Note as well as the Varthamanam letter were executed only as a security for enforcing the agreement by which the defendant had agreed to pay a sum of Rs.5,00,000/-. The suit is not for enforcing the Promissory Note or the Varthamanam letter. Since it is filed on the original cause of action and it is held that the defendant is legally liable to pay a sum of Rs.5,00,000/-, immediately upon the money that was lying to the credit of O.S.No.17 of 1983 is withdrawn, this Court is of the view that the plaintiff has proved his case on the basis of the documents under Ex.A.2 and Ex.A.3 apart from other evidence and circumstances that the defendant is liable to pay a sum of Rs.5,00,000/-. The issue is decided accordingly.
20. Point No.4 Regarding this issue, the trial Court has rightly held that the suit has been filed within three years from the date on which the cheque for a sum of Rs.10,12,334/- was issued to Unnamalai Achi. Since the defendant had agreed to pay the money only out of the money which was lying in the Court deposit, the suit is not barred by limitation, as the cause of action for the suit arises only when the amount is withdrawn from the Court.
21. The learned counsel for the appellants did not argue as to how the findings of the trial Court is erroneous or unsustainable. Having regard to the admitted facts in this case, this Court is also of the view that the suit is not barred by limitation.
22. Point No.5 After referring to the Provisions under order 7 Rule 13 of C.P.C., the trial Court found that the previous suit which was filed for recovery of money on the basis of the Promissory Note was not dismissed on merits. From the facts recorded by the trial Court, it is clear that the plaint in the previous suit was rejected under Order 7 Rule 11 of C.P.C., for non-payment of deficit Court fee within the time granted by the Court. When the plaint was rejected under Order 7 Rule 11 of C.P.C., it does not preclude the plaintiff to present a fresh plaint in respect of the same cause of action. Now in this case, the suit is not on the basis of the Promissory Note, but on the original cause of action. Hence, the rejection of the plaint, on the earlier occasion is nothing to do with the present suit and the present suit is not barred because of the rejection of the plaint earlier.
23. Point No.6 No doubt, it is true that the plaintiff is not entitled to interest till such time, the money from the Court deposit is withdrawn by Unnamalai Achi. However, after the money was withdrawn from the Court deposit and payable to the plaintiff, the plaintiff is entitled to interest. The rate of interest at 12% is normal and though there is no agreement to pay interest, having regard to the circumstances of the case, and the suit was dragged by the defendant all these years, this Court is not inclined to interfere with the findings of the trial Court, regarding the rate of interest. The plaintiff is therefore entitled to interest at 12%. The trial Court has granted future interest only at 6%.
24. For all the above reasons, this Court is not inclined to interfere with the Judgment of the trial Court. This appeal is therefore dismissed with cost throughout. Consequently, connected Miscellaneous petitions are closed.
To
1. The Subordinate Judge, Devakottai.
2. The Record Keeper, V.R.Keeper, Madurai Bench of Madras High Court, Madurai. .