(Prayer in A.S.: Appeal Suit filed under Section 96 of CPC to set aside the judgment and decree passed in O.S.No.3902 of 2017 dated 12.03.2018 on the file of the XV Additional City Civil Judge, Chennai and allow the appeal.)

1. This appeal is preferred by the appellant/defendant under Section 96 of the Code of Civil Procedure, assailing the judgment and decree dated 12.03.2018 passed in O.S. No.3902 of 2017 on the file of the XV Additional City Civil Court, Chennai, whereby the suit was decreed in favour of the plaintiff.

2. The plaint, in brief, is as follows: The defendant borrowed a sum of Rs.15,00,000/- on 28.02.2016 for the purpose of purchasing the flat in which he was residing. The plaintiff paid the said amount by Cheque No.416273 dated 28.02.2016, drawn on Indian Bank, West Saidapet Branch, which was encashed on 01.03.2016. The defendant agreed to repay the amount on demand with interest at the rate of 12% per annum. Despite repeated demands, the defendant failed to repay the amount, leading to the issuance of a legal notice dated 30.03.2017. The plaintiff contended that the reply notice dated 06.04.2017 contained false claims regarding compromise/settlement and alleged entitlement to a share in the properties, and therefore instituted the suit for the recovery of money sum of Rs.17,46,500/- together with the interest of 12% per annum.

3. The written statement, in brief, is as follows: The defendant admitted receipt of the cheque amount but denied that it constituted a loan. He disputed the plaintiff’s version regarding the purchase of a flat and residence therein, asserting that he had been residing only in rented premises. It was pleaded that there was no documentation evidencing any loan transaction and that the cheque amount was paid towards his rightful onethird share in the estate/proceeds of their father. The defendant further contended that the legal notice was issued merely as a substitute for a promissory note, and that his reply notice clearly set out the true nature of the transaction. He traced the family background and stated that disputes concerning the movable and immovable properties of the father culminated in the issuance of the cheque as part-payment of his share. He also pleaded that, after he addressed letters dated 09.12.2016 to the banks seeking to restrain unilateral operation of the father’s bank accounts and locker, the plaintiff issued the legal notice as a counterblast.

4. On the basis of the pleadings, the trial Court framed the following four issues:

                     i. Whether the plaintiff advanced Rs.15 lakhs to the defendant?

                     ii. Whether the plaintiff is entitled to recover a sum of Rs.17,46,500/- together with interest at 12% on the principal sum of Rs.15 lakhs from the defendant?

                     iii. Whether the plaintiff is entitled to claim 12% interest on the loan advanced to the defendant?

                     iv. To what other relief the plaintiff is entitled?

5. During trial, the plaintiff examined himself as PW-1 and the defendant examined himself as DW-1. On the side of the plaintiff, Exs. A-1 to A-4 were marked, and on the side of the defendant, Exs. B-1 to B-18 were marked. Upon consideration of the evidence, the trial Court decreed the suit, directing the defendant to pay a sum of Rs.15,00,000/- with interest at the rate of 8.25% per annum.

6. Aggrieved by the judgment and decree, the defendant has preferred the present appeal, contending that the same are contrary to law and evidence and were passed mechanically without proper appreciation of the defence. The appellant also questioned the plaintiff’s credibility, alleging suppression of the true relationship between the parties, namely that they are brothers, both in the legal notice and in the plaint. On merits, the appellant reiterated that a bank officer would ordinarily insist on proper documentation for a loan, that borrowing at 12% interest only to deposit or invest the amount at 8.25% interest is inherently improbable, that there was no necessity for him to borrow, and that the alleged loan for the purchase of a flat was wholly uncorroborated. It was further contended that earlier email and SMS communications referred only to legacy and expenses, and not to any loan or interest, and that the trial Court erred in shifting the burden of proof to the defendant, when it was for the plaintiff to establish the alleged loan transaction.

7. The appellant filed a petition under Order XLI Rule 27 CPC seeking reception of additional documents in C.M.P. No.20299 of 2021, which was allowed on 05.04.2022. Pursuant thereto, the defendant was further examined, Exs. B-19 to B-29 were marked, and he was subjected to cross-examination.

8. From the materials placed, the appellant/defendant contends that the sum of Rs.15,00,000/- admittedly received from the respondent/plaintiff did not constitute a loan, but was paid towards part of his one-third share in the estate of their deceased father. He denies any agreement to pay interest, emphasises the absence of loan documentation, and submits that it is inherently improbable for a person to borrow at 12% interest only to deposit the same amount in fixed deposits yielding a lower return. He further asserts that the suit was instituted as a counterblast after he took steps to restrain unilateral operation of his father’s bank accounts and locker.

9. The learned counsel for the respondent/plaintiff, on the other hand, maintains that the amount was advanced as a loan on 28.02.2016 for the defendant’s benefit, repayable with interest, and that the plea of “share money” is a belated afterthought unsupported by contemporaneous conduct. According to the respondent, the trial Court correctly appreciated the pleadings and evidence, noting that receipt of the amount is admitted, that the defendant encashed the cheque and invested the very same sum in the bank, thereby corroborating the case of loan transaction. It is contended that the defendant has neither sought partition nor established any subsisting right to a share, and that even the additional documents relied upon by him show the West Saidapet property to be the self-acquired property of the father, the proceeds of which stood dealt with by way of a one-time settlement. The respondent further submits that the belated production of additional documents at the appellate stage, as well as allegations relating to the life certificate and the builder, are collateral and intended to divert attention from the admitted transaction, and that the defendant’s subsequent bank communications and criminal proceedings, later withdrawn, demonstrate obstructive conduct aimed at delaying repayment. On these grounds, the respondent seeks affirmation of the trial Court’s decree and dismissal of the appeal.

10. Points for consideration in this appeal:

                     (i). Whether the payment of Rs.15,00,000/- made by the plaintiff to the defendant was in the nature of a loan, or whether it was made towards part-payment of the share amount payable out of the father’s estate?

                     (ii). Whether the judgment and decree of the trial Court are liable to be set aside?

Point No (i)

11. The admitted position is that the plaintiff and the defendant are brothers and that the defendant received a sum of Rs.15,00,000/-. The plaintiff’s case is that the said amount was advanced as a loan to enable the defendant to purchase the flat in which he was residing as a tenant, with an agreement that the amount would be repaid with interest. The defendant, while admitting receipt of the amount, disputes the purpose for which it was paid. According to him, the sum of Rs.15,00,000/- was paid as the first instalment towards his one-third share in the estate of their late father, N. Venkatachari.

12. The principal issue for determination is whether the sum of Rs.15,00,000/- paid by the plaintiff to the defendant constituted a loan, or whether it was a part-payment towards the defendant’s share in the estate of their deceased father.

13. The plaintiff and the defendant, along with their parents, were residing jointly until the demise of their mother on 16.03.2007. Thereafter, the relationship between the parties became strained, and the defendant separated from the joint family and shifted his residence to Nanganallur in the year 2019. It is an admitted fact that the father of the parties, late N. Venkatachari, owned an immovable property at West Saidapet, entered into a joint venture agreement in respect thereof, and executed several sale deeds. According to the plaintiff, the sale proceeds were shared among himself, his father, and another brother, Sriram. It is further admitted that an amount of Rs.93,46,500/- being the initial sale consideration was deposited in the father’s bank account, which was subsequently converted into a joint account in the names of the father and the plaintiff.

14. According to the defendant he is entitled to a one-third share in the monies and jewels left by their parents. According to him, when these amounts were held by the plaintiff, he demanded his share during the 11th day ceremony of his father, which was performed at the plaintiff’s residence, but the demand was initially refused. Subsequently, upon the intervention of family members and the other brother, Sriram, the plaintiff agreed to pay the defendant his share and, towards the same, paid an initial sum of Rs.15,00,000/-, with an assurance that the balance would be settled within one year.

15. For determining whether the sum of Rs.15,00,000/- was advanced as a loan or paid as the first instalment towards the defendant’s share, the nature of the relationship between the parties assumes relevance. The materials on record indicate that, owing to strained relations, the defendant had separated from the joint family, and that the three brothers assembled at the time of the 11th day ceremony of their father. It is also on record that the younger brother, Sriram, was abroad and could not attend the funeral.

16. The plaintiff asserted that the amount was advanced as a loan to enable the defendant to purchase the flat in which he was residing as a tenant. The defendant, however, denied any intention to purchase the said flat. The burden of proof rests on the plaintiff. On his side, no material evidence was produced to substantiate this assertion, nor was the owner of the flat examined to establish the existence of any proposal by the defendant to purchase the property.

17. After encashment of the amount paid by the plaintiff, the defendant deposited the same in a fixed deposit. The plaintiff claimed that the defendant had agreed to repay the amount with interest at 12% per annum. If that were so, it would be implausible for a prudent person to place the borrowed amount in a fixed deposit yielding a lower rate of interest.

18. On the plaintiff’s side, none of the relatives who were present at the 11th day ceremony were examined in support of his version. Further, the other brother, Sriram, was not examined by either side, though it was stated that he was abroad. In the absence of supporting evidence or material, the plaintiff’s contention remains not proved.

19. In the appeal, the defendant was examined further and Exs. B-19 to B-29 were marked. Among them, Ex. B-25 assumes significance. The sale deed therein is dated 30.11.2015 and was registered on 16.12.2015 after a life certificate of the principal, N. Venkatachari, was obtained on 15.12.2015. It is an admitted fact that N. Venkatachari had died on 14.12.2015; nevertheless, a life certificate was procured on 15.12.2015 as though he were alive. The defendant alleged that the plaintiff was instrumental in obtaining the said document and that a police complaint was lodged in that regard. The parties are well educated and well placed, and it is a matter of regret that circumstances have arisen wherein a deceased father was projected as living.

20. According to the defendant, at the time the sum of Rs.15,00,000/- was paid, the plaintiff had agreed to settle the balance of the defendant’s share within one year. Upon the plaintiff’s failure to honour this commitment, the defendant addressed communications dated 09.12.2016 to the State Bank of Mylapore and the Tamil Nadu Co-operative Apex Bank Ltd., intimating them of their father’s demise and restraining the plaintiff from operating the deceased father’s bank account and locker. The defendant contended that this action provoked the plaintiff to institute the suit, characterising the amount paid towards the defendant’s initial share as a loan.

21. In the above circumstances, the plaintiff’s contention that the sum of Rs.15,00,000/- was paid as a loan for the purchase of a flat is not supported by any evidence. The plaintiff has therefore failed to establish that the said amount was advanced as a loan. This point is accordingly answered against the plaintiff.

22. Point No. (ii)

In the light of the finding on Point No.1, the judgment and decree dated 12.03.2018 passed by the trial Court in O.S. No.3902 of 2017 are liable to be set aside.

23. In the result, the judgment and decree dated 12.03.2018 passed in O.S. No.3902 of 2017 are set aside. The appeal is allowed and O.S. No.3902 of 2017 is dismissed. In view of the close relationship between the parties, there shall be no order as to costs.