Code of Civil Procedure, 1908 – Order VIII Rules 5, 9 & 10 – Evidence Act, 1872 – Section 103 – Sale Agreement – Advance Amount – Plea of Discharge – Replication – Burden of Proof – Specific Performance.
In the instant case, since the Suit is one for return of advance amount and the defendants only raised the plea of discharge, there is no scope for filing any additional pleading and as such non-filing of replication cannot be taken as admission of the plea of discharge. (Para 14)
2025 KER 42290 : 2025 KLT OnLine 2130
High Court of Kerala at Ernakulam
Hon’ble Mr. Justice C. Pratheep Kumar
RFA No. 519 of 2017, 16th June, 2025
Facts: The appellants (defendants) entered into a sale agreement with the respondent (plaintiff) on 25.6.2012 for the sale of property for Rs. 66,00,000/-, receiving an advance of Rs. 15,00,000/-. The plaintiff filed a suit (O.S. No. 21/2015) initially for specific performance and injunction, later amended to seek refund of the advance with 18% interest, alleging the defendants’ failure to execute the sale deed. The defendants admitted receiving the advance but claimed repayment in installments, which the plaintiff denied. The trial court decreed the suit, ordering repayment of Rs. 15,00,000/- with 6% interest. The defendants appealed, contending that the plaintiff’s failure to file a replication to their plea of discharge amounted to admission and that the trial court’s judgment was erroneous.
Issues:
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Does the failure to file a replication against the defendants’ plea of discharge amount to an admission?
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Does the trial court’s judgment and decree warrant interference based on the grounds raised in the appeal?
Held: The High Court dismissed the appeal, holding:
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Non-filing of replication not an admission: Relying on K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354, the Court held that failure to file a replication does not constitute an admission of the defendants’ plea of discharge. The Delhi High Court’s decision in Mohan Madan v. Sheel Gulati was distinguished, and the plea of discharge was not a set-off or counter-claim requiring additional pleading under Order VIII Rules 5, 9, and 10 of the CPC.
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Burden of proof on defendants: Under Section 103 of the Evidence Act, the burden to prove repayment lay with the defendants, who failed to produce any documentary evidence or credible witness to substantiate their claim of repayment in six installments. The Court found the defendants’ claim of making payments without receipts or cancellation of the agreement contrary to ordinary human conduct.
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No irregularity in trial court’s judgment: The trial court’s decree was upheld as the defendants failed to prove discharge, and no illegality or irregularity was found in the impugned judgment.
Result: Appeal dismissed. Defendants directed to repay Rs. 15,00,000/- with 6% interest per annum. All interlocutory applications closed.
Counsel:
For Appellants:
P.G. Jayashankar |
Adv. Ammu Manoharan Narayanan |
K.J. Karthika
|
P. Sreelakshmi |
For Respondent:
R. Azad Babu |
