M/S FAIR COMMUNICATION AND CONSULTANTS & ANR. versus SURENDRA KERDILE

Citation: [2020] 1 S.C.R. 441 · Decided: 20-01-2020 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed

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Judgment (excerpt)

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M/S FAIR COMMUNICATION AND CONSULTANTS & ANR.
v.
SURENDRA KERDILE
(Civil Appeal No. 106 of  2010)
JANUARY 20, 2020
[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
Benami Transactions (Prohibition) Act, 1988 – ss. 3, 4 –
Respondent constituted his nephew-second appellant (sole
proprietor of first appellant) as his attorney for disposing of his
flat – An agreement to sell was entered on 03.07.89 wherein
consideration for the flat was Rs. 2,30,000/- – However, a second
agreement entered on 30.11.89 showed lesser consideration of
Rs.1,30,000/- – Further, second appellant wanted Rs. 80,000/- for
the expansion of his business – Given by the respondent – Second
appellant issued post-dated cheques which were returned by the
banker to the respondent – Respondent filed suit for recovery of
Rs.80,000/- – Second appellant alleged that he returned the amount
immediately but the respondent did not return the cheques – Suit
dismissed – During the appeal filed by the respondent, applications
for amending the plaint were also filed – High Court decreed the
suit – On appeal, held: Consideration for the flat in terms of the
agreement dtd. 03.07.89 was Rs. 2,30,000/- – This was admitted by
second appellant in his deposition – It is also undisputed that the
original agreement with the purchaser (who ultimately finalized the
transaction) is  dtd. 03.07.89 – Respondent had put the matter,
during cross examination, to the appellant who admitted the
document, despite the fact that it was a photocopy – Respondent argued
that the original of that document was with the purchaser – This
was not denied – Once these were admitted, the respondent could
not be faulted for seeking consequential amendment, purely formal,
to back his argument that there was sufficient money, after lending
Rs. 80,000/- to the appellant, which was deposited in his account –
Further, the argument that the respondent’s plea regarding the real
consideration being barred based on a prohibited transaction
outlawed by the Benami Act, has no merit – Respondent did not
claim return of any amount from the buyer; the suit was not based
   [2020] 1 S.C.R. 441
441
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
on any plea involving examination of a benami transaction – Onus
of establishing that a transaction is benami is upon one who asserts
it – Appellants did not prove that the transaction (to which they
were not parties) was benami – Their argument was merely that the
transaction could not be said to be in excess of Rs. 1,30,000/-: in
the context of a defense in a suit for money decree – Findings in the
impugned judgment are justified.
Dismissing the appeal, the Court
HELD: 1. The plaintiff had put the matter, during the course
of cross examination, to the appellant/defendant. The latter,
unsurprisingly, admitted the document, despite the fact that it was
a photocopy. The plaintiff had argued that the original of that
document was with the purchaser: this was not denied. Once these
were admitted, the plaintiff could not be faulted for seeking a
consequential amendment, that was purely formal, to back his
argument that there was sufficient money, after lending Rs. 80,000/
- to the defendant, which was deposited in his  account. The
argument that the plaintiff’s plea regarding the real consideration
being barred, has no merit. The plaintiff did not claim return of
any amount from the buyer; the suit is not based on any plea
involving examination of a benami transaction. Besides, the
plaintiff is not asserting any claim as benami owner, nor urging a
defense that any property or the amount claimed by him is a
benami transaction. Therefore, the defendant appellant’s
argument is clearly insubstantial. The onus of establishing that a
transaction is benami is upon one who asserts it. In the present
case, the appellants did not prove that the transaction (to which
they were not parties) was benami; on the contrary, the appellant’s
argument was merely that the transaction could not be said to be
for a consideration in excess of Rs. 1,30,000/-: in the context of a
defense in a suit for money decree. The defendant/appellants never
said that the plaintiff or someone other than the purchaser was
the real owner; nor was the interest in the property, the subject
matter of the recovery suit. [Paras 16-18, 20 and 21] [449-D;
450-A-B, H; 452-E]
Valliammal (D.) by LRs v. Subramaniam & Ors. (2004)
7 SCC 233 : [2004] 3 Suppl. SCR 966 – relied on.
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Binapani

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