Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2105 (KER)

Sooryan (Died) S/o Kesavan v. Shaiju S/o Anthony

2025-07-30

C.PRATHEEP KUMAR

body2025
JUDGMENT : C. PRATHEEP KUMAR, J. 1. The defendant in OS. No.671 of 2012 on the file of the Principal Sub Court, Irinjalakuda, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court). 2. The plaintiff filed the suit for realisation of money. The plaintiff and the defendants were partners of a firm by name 'Sudar Chamber', engaged in the business of manufacture of bricks at Pazhani in the State of Tamil Nadu. On 13.2.2012, the plaintiff resigned from the firm. Both parties entered into an agreement on 13.2.2012. According to the plaintiff, towards his share from the firm, the defendant agreed to pay a sum of Rs.21,00,000/-. On 13.2.2012, Exhibit A1 agreement was executed in that respect and a sum of Rs.10,00,000/- was paid to him. Towards the repayment of the balance amount of Rs.11,00,0000/-, two cheques, one for Rs.5,00,000/- and the other for Rs.6,00,000/- were issued to him. When the cheque for Rs.5,00,000/- dated 12.6.2012 drawn from Thrissur District Co-operative Bank, Varantharapilly Branch, was presented by him for encashment, it was dishonoured for want of sufficient funds in the account of the defendant. In that respect he had filed a complaint against the defendant under Section 138 of the Negotiable Instruments Act . The other cheque for Rs.6,00,000/- is not yet dishonoured. Since in spite of demand, the defendant failed to repay the cheque amount, he preferred the suit claiming a sum of Rs.5,00,000/- along with interest. 3. The defendant filed written statement admitting that they were partners of a firm engaged in the business of manufacturing bricks and also admitting that on 13.2.2012, the plaintiff resigned from the firm. However, according to him, towards the share of the plaintiff, he had agreed to pay only a sum of Rs.11,00,000/- and not Rs.21,00,000/- as claimed by the plaintiff. Further, according to him, towards the repayment of the above Rs.11,00,000/-, he had issued two cheques, one for Rs.5,00,000/- and the other for Rs.6,00,000/-. In addition to the same, he had given some signed blank papers also to the plaintiff. In the written statement, it is further contended that on 9.6.2012 the defendant had paid Rs.10,00,000/- to the plaintiff, but the plaintiff did not return the signed papers as well as the cheques. In addition to the same, he had given some signed blank papers also to the plaintiff. In the written statement, it is further contended that on 9.6.2012 the defendant had paid Rs.10,00,000/- to the plaintiff, but the plaintiff did not return the signed papers as well as the cheques. According to the defendant, by misusing the above cheques and signed papers, the plaintiff forged the suit documents. The defendant would further contend that the plaintiff had supplied a second hand machine for the business of the firm and the machine was not functioning properly and therefore, the balance Rs.1,00,000/- due to the plaintiff was also abandoned by him. Therefore, according to the defendant, he owes no further amount to the plaintiff. In the light of the above contentions, the defendant prayed for dismissing the suit. 4. The trial court framed three issues. The evidence in the case consists of oral testimonies of PWs 1 to 3 and DWs 1 and 2, Exhibit A1 to A6, B1 and B2. After evaluating the evidence on record, the trial court decreed the suit. Being aggrieved by the above judgment and decree of the trial court, the plaintiff preferred this appeal. 5. Now, the points that arise for consideration is the following: 1) Whether the defendant paid the amount covered by Exhibit A2 cheque to the plaintiff, as claimed? 2) Whether the impugned judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal? 6. Heard Sri. N.L. Bitto, learned senior counsel for the appellant and Sri.G. Sreekumar Chelur, the learned counsel for the respondent. 7. The points: Admittedly, the plaintiff and the defendant were the partners of the firm 'Sudar Chamber' engaged in manufacturing bricks at Pazhani in the State of Tamil Nadu. It is also admitted that, on 13.2.2012, the plaintiff resigned from the said firm. Both parties also admitted that on 13.2.2012 itself, they entered into an agreement with regard to the share of the plaintiff from the partnership firm. While according to the plaintiff, his share was fixed at Rs.21,00,000/-, according to the defendant, it was fixed at Rs.11,00,000/-. It is also admitted that, on 13.2.2012, the plaintiff resigned from the said firm. Both parties also admitted that on 13.2.2012 itself, they entered into an agreement with regard to the share of the plaintiff from the partnership firm. While according to the plaintiff, his share was fixed at Rs.21,00,000/-, according to the defendant, it was fixed at Rs.11,00,000/-. According to the plaintiff on 13.2.2012, with respect to the dissolution of the firm, Exhibit A1 agreement was executed and on the same day, a sum of Rs.10,00,000/- was paid to him and towards balance amount of Rs.11,00,000/-, a cheque for Rs.5,00,000/- dated 12.6.2012 and another cheque for Rs.6,00,000/- dated 13.8.2012 drawn on the Thrissur District Co-operative Bank, Varantharapilly Branch, were issued. On the other hand, according to the defendant, out of Rs.11,00,000/- agreed to be paid to the plaintiff towards his share, he had issued two cheques, one for Rs.5,00,000/- and the other for Rs.6,00,000/-. Further, according to the defendant, on 9.6.2012, he had paid a sum of Rs.10,00,000/- to the plaintiff, but the plaintiff failed to return the cheque leaves as well as signed blank papers obtained from him. 8. The learned counsel for the appellant has strongly relied upon Exhibit B1, which is a photocopy of a registered document executed at Pazhani, on the very same day, on which Exhibit A1 agreement was allegedly executed. According to the plaintiff, Exhibit A1 was executed at Thrissur at about noon on 13.2.2012. The learned counsel would argue that, since Exhibit B1 is a registered document, execution of Exhibit B1 is to be accepted as executed at Pazhni and as such there is no chance for execution of Exhibit A1 on the same day at Thrissur. 9. Exhibit B1 is only a photocopy and it is seen prepared in Tamil. The trial court specifically noted that the translation of Exhibit B1 was not produced. However, in the case bundle, the translation of Exhibit B1 was present. From the said document, it can be seen that Exhibit B1 was registered before the Sub Registry Pazhani on the same day. PWs 1 to 3 examined in this case would swear that Exhibit A1 was executed after 12 noon on 13.2.2012. However, the time at which Exhibit B1 was registered at Pazhani is not clear from the evidence available on record. Nobody was examined to prove the time of registration of Ext.B1. PWs 1 to 3 examined in this case would swear that Exhibit A1 was executed after 12 noon on 13.2.2012. However, the time at which Exhibit B1 was registered at Pazhani is not clear from the evidence available on record. Nobody was examined to prove the time of registration of Ext.B1. The person who translated Ext.B1 was also not examined. Since there is no reliable evidence to prove the time at which Exhibit B1 was executed at Pazhani, it cannot be concluded as to whether on the same day, Exhibit A1 could be executed at Thrissur and Exhibit B1 could be executed at Pazhani. 10. In this case, when the defendant was examined as DW1, he categorically admitted the execution and issuance of Exhibit A2 cheque to the plaintiff. He would also admit that Exhibit A2 cheque was issued to the plaintiff towards the discharge of the liability he owes to the plaintiff, towards the plaintiff's share in the firm. At the same time, the defendant raises the plea of discharge. The law is settled that the burden is on the defendant to prove the plea of discharge. In the above circumstances, now the question to be considered is whether the plea of discharge raised by the defendant stands proved? 11. The specific case of the defendant is that, the amount agreed to be paid to the plaintiff towards his share was Rs.11,00,000/-. According to the defendant, at the time of dissolution of the firm, he had issued two cheque leaves, one for Rs.5,00,000/- and the other for Rs.6,00,000/-. He further claims that in addition to those two cheques, he had handed over some signed blank papers also to the plaintiff. Since the specific case of the defendant is that as per the agreement, the amount due to the plaintiff was arrived at Rs.11,00,000/- alone and two cheques, one for Rs.5,00,000/- and the other for Rs.6,00,000/- were executed and issued to the plaintiff on the same day, there was no necessity for him to hand over any signed blank papers, as claimed. While executing and issuing two cheques together worth Rs.11,00,000/-, the necessity for giving signed blank papers, the defendant has not offered any satisfactory explanation. 12. While executing and issuing two cheques together worth Rs.11,00,000/-, the necessity for giving signed blank papers, the defendant has not offered any satisfactory explanation. 12. The further case of the defendant that on 9.6.2012, he had paid a sum of Rs.10,00,000/- to the plaintiff without receiving back the cheque leaves and signed blank papers, is also not a believable one. No prudent man will handover such a huge sum to a person to whom two cheque leaves and blank papers were given, without seeing those documents and receiving back the same, forthwith. As per section 81 of the Negotiable Instruments Act , any person liable to pay is entitled to see the instrument before payment and delivered upon payment. Even in the event of loss or non-producibility of the instrument, he is entitled to indemnification against any further claim. The defendant has not offered any explanation as to why he has paid such a huge amount to the plaintiff without verifying and receiving back the documents issued as security. In the absence of any such plausible explanation, his claim that he had paid a sum of Rs.10,00,000/- to the plaintiff on 9.6.2012, without receiving back the cheque leaves and signed blank papers, could not be believed. 13. In order to prove the source of Rs.10,00,000/-, the defendant has produced Exhibit B2, the sale agreement, allegedly executed between the defendant and DW2. DW2 also deposed before the court that Exhibit B2 was the sale agreement executed by him with the defendant and on the basis of the said agreement, he had advanced a sum of Rs.10,00,000/- to the defendant. The trial court noticed that Exhibit B2 was allegedly executed on 8.6.2012 and the period of expiry was on 8.5.2013. However, the said document was seen produced before the trial court on 12.6.2015 and no explanation was offered as to what happened to Exhibit B2 as to whether it was performed or rescinded. If Exhibit B2 was a genuine sale agreement, the defendant and DW2 owes an explanation as to how, in spite of paying Rs.10,00,000/- as advance, the said document was still with him, without rescinding or performing. In the absence of any such explanation from the defendant and DW2, the trial court was justified in disbelieving Exhibit B2. If Exhibit B2 was a genuine sale agreement, the defendant and DW2 owes an explanation as to how, in spite of paying Rs.10,00,000/- as advance, the said document was still with him, without rescinding or performing. In the absence of any such explanation from the defendant and DW2, the trial court was justified in disbelieving Exhibit B2. I do not find any grounds to interfere with the above finding of the trial court that Exhibit B2 sale agreement is not a reliable document to prove the source of the defendant to advance a sum of Rs.10,00,000/- to the plaintiff on 9.6.2012. 14. In this context, it is also to be noted that in Exhibit A1 agreement, the wife of the defendant is also a witness. In the written statement or at the time of evidence, the defendant has not offered any explanation as to how Exhibit A1 contained the signature of his own wife. The presence of the signature of the wife of the defendant in Exhibit A1 further substantiates the genuineness of Exhibit A1. In this context, it is also to be noted that though the defendant has taken a contention that Exhibit A1 was a forged document, in the blank papers handed over by him to the plaintiff, no further proceedings were initiated by him against the plaintiff for getting back those papers signed and issued by him to the plaintiff. 15. During the cross examination, the defendant admitted that with regard to the payment of the above, Rs.10,00,000/- to the plaintiff, there are accounts in his custody. However, he has not produced any such accounts maintained by him to prove the payment of Rs.10,00,000/- to the plaintiff on 9.6.2012. In this context, it is to be noted that the alleged payment was made to the plaintiff towards his share from the partnership firm run by them. Therefore, as claimed by the defendant there would be documentary evidence in the form of books of accounts maintained in the firm and it is the crucial document in this case to prove the plea of discharge. If there was any bona fides in the claim of the defendant that he had paid a sum of Rs.10,00,000/- to the plaintiff on 9.6.2012, he could have produced those documents, to prove his bona fides. If there was any bona fides in the claim of the defendant that he had paid a sum of Rs.10,00,000/- to the plaintiff on 9.6.2012, he could have produced those documents, to prove his bona fides. If there was any such document, he would definitely have produced the same before the court, to prove his case. Failure on the part of the defendant to produce the relevant document, admittedly in his possession, persuades me to presume that there is no such document in his possession. In the above circumstance, an adverse inference is liable to be drawn against the defendant. In other words, the claim of the defendant that he had paid a sum of Rs.10,00,000/- to the plaintiff on 9.6.2012 cannot be believed. Therefore, it is to be held that the plea of discharge raised by the defendant stands not proved. Since the defendant admitted the execution and issuance of Exhibit A2 cheque and at the same time he miserably failed in proving the plea of discharge, the trial court was justified in decreeing the suit. Therefore, I find no grounds to interfere with the impugned decree and judgment of the trial court and as such this appeal is liable to be dismissed. In the result, this appeal stands dismissed. All pending interlocutory applications shall stand dismissed.