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2025 DIGILAW 450 (KER)

Metro Agencies v. Best Winner Steel Products

2025-03-04

SATHISH NINAN, SHOBA ANNAMMA EAPEN

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JUDGMENT : Sathish Ninan, J. Challenging the dismissal of the suit for money, the plaintiffs are in appeal. 2. The 1 st plaintiff is a partnership firm. The 2 nd plaintiff is its Managing Partner. The 1 st defendant is also a partnership firm. Defendants 2 and 3 are its partners. The 3 rd defendant is the mother of defendants 2 and 4 to 7. 3. According to the plaintiffs, the 1 st defendant firm agreed to supply to the plaintiffs GP pipes, in large quantities. As was required by defendants 1 and 2, the 1 st plaintiff paid an amount of Rs.90,00,000/- to the 1 st defendant on 29.09.2014 and a further amount of Rs.10,00,000/- on 09.10.2014 through Bank RTGS. Thus, a total amount of Rs.1,00,00,000/- (One crore) was paid by the plaintiffs to the 1 st defendant firm, towards supply of GP pipes. Delivery of the pipes were to be effected within a period of one month. However, the 1 st defendant failed to deliver the goods. 4. On negotiations, the defendants agreed to return the amount not later than 31.03.2015. To secure the liability, the plaint schedule property was equitably mortgaged in favour of the plaintiffs by deposit of title deeds. However, the defendants failed to repay the amount. 5. Thereupon, on further negotiations, the defendants agreed to sell the plaint schedule property in favour of the plaintiffs, for a total consideration of Rs.1.70 crores. Ext.A1 agreement dated 04.05.2015 was executed in the said regard. On the date of Ext.A1, a further amount of Rs.10,00,000/- was paid to the defendants towards advance sale consideration, thus making the total advance at Rs.1,10,00,000/-. The balance sale consideration was to be paid and the sale deed got executed on or before 29.06.2015. 6. It is alleged that, subsequently the defendants requested that the sale agreement may be revoked and they may be permitted to repay the amount of Rs.1.10 crores with interest, to which the plaintiffs agreed. In spite of the same, the amount was not paid. On these allegations the suit was filed for recovery of Rs.1.10 crores with interest. 7. The defendants, though admitted that Rs.1 crore was sent to the 1 st defendant's account through RTGS, alleged that the Bank seized the amount and that they did not receive the same. The plea regarding creation of mortgage followed by Ext.A1 agreement for sale was denied. 7. The defendants, though admitted that Rs.1 crore was sent to the 1 st defendant's account through RTGS, alleged that the Bank seized the amount and that they did not receive the same. The plea regarding creation of mortgage followed by Ext.A1 agreement for sale was denied. It was contended that the original title deeds and the signatures on Ext.A1 agreement were obtained by threat and coercion. It was also contended that the suit is barred by limitation. 8. The trial court found that the plaintiffs had paid Rs.1 crore to the first defendant. The alleged payment of the further amount of Rs.10,00,000/- under Ext.A1, was held against. So also, the trial court held against the mortgage and Ext.A1 agreement. It was also held that the suit is barred by limitation. 9. We have heard Sri.P.B. Krishnan, the learned Senior Counsel and Sri.Peeyus A. Kottam, the learned counsel on behalf of the appellants-plaintiffs, and Shri.T. Krishnanunni, the learned Senior Counsel for the respondents-defendants. 10. The points that arise for determination are :- i) Is the suit barred by limitation? ii) Was the trial court justified in its finding that the alleged mortgage and Ext.A1 agreement for sale are not proved? 11. The suit is laid for realisation of an amount of Rs.1.10 crores allegedly paid by the plaintiffs to the defendants. The payment of Rs.1 crore is evidenced by Exts.A9 and A10 Bank account statements, revealing transfer of the amounts to the account of the 1 st defendant through RTGS. In Ext.A11 reply notice, the receipt of such amount in the Bank account is admitted; however, it was contended that the amount was not received from the Bank. There is no serious dispute with regard to the receipt of the said amount of Rs.1 crore. The said amount was paid in two installments of Rs.90,00,000/- on 29.09.2014, and of Rs.10,00,000/- on 09.10.2014. Such payments which are evidenced by the Bank transactions cannot be disputed. 12. The claim of the plaintiffs is that, the balance amount of Rs.10,00,000/- was paid on 04.05.2015, at the time of execution of Ext.A1 agreement for sale. There is no evidence to prove the payment of Rs.10,00,000/-. Such payment is claimed to have been made in cash. The genuineness of Ext.A1 agreement is under challenge. Ext.A1 narrates that an amount of Rs.1.10 crores was paid ready cash on the date of the Rs.1.70 crores. There is no evidence to prove the payment of Rs.10,00,000/-. Such payment is claimed to have been made in cash. The genuineness of Ext.A1 agreement is under challenge. Ext.A1 narrates that an amount of Rs.1.10 crores was paid ready cash on the date of the Rs.1.70 crores. However, even the plaintiffs did not have a case that the amount of Rs.1.10 crores was paid on the date of Ext.A1. Here it is significant to note that, the claim/prayer for Rs.1.10 crores could be maintained only if the plaintiffs lay the suit on Ext.A1 agreement. This is so because, even according to the plaintiffs’ case, prior to Ext.A1 only an amount of Rs.1 crore was paid. 13. Further it is to be noticed that, the suit will be within time only if the plaint is founded on Ext.A1. This is so because, the payment of Rs.1 crore was on 29.09.2014 and 09.10.2014 and the suit was filed only on 17.03.2018, which is beyond three years and barred by limitation. 14. Taking it to be that the suit is for return of the advance sale consideration under Ext.A1 agreement, as was noticed supra, Ext.A1 agreement is denied by the defendants. The recital therein that Rs.1.10 crore was paid towards advance sale consideration on the date of Ext.A1 agreement is admittedly incorrect. Ext.A1 agreement is not signed by the 2 nd defendant. Regarding defendants 3 to 7, what is seen in Ext.A1 are their thumb impressions and not signatures. There is no case that they are illiterate or were unable to sign for some reason. The explanation attempted to be offered is that, thumb impression has more sanctity. The defendants allege that their thumb impressions were obtained by threat and coercion in the evening of 06.06.2015. The front page of Ext.A1 agreement reveals that the stamp paper was issued from the Sub Treasury, Kottakkal on 04.05.2015 and the same was sold by the Vendor only on 07.05.2015 . However, Ext.A1 agreement is dated 04.05.2015 . The plaintiffs are definite in their pleadings and evidence that Ext.A1 agreement was executed on 04.05.2015. We do not think that any further discussion is necessary to hold against the genuineness of Ext.A1. Even the learned senior counsel for the appellants did not venture much to impress upon the Court the genuineness of Ext.A1. In fact the attempt was to save the suit dehors Ext.A1. 15. We do not think that any further discussion is necessary to hold against the genuineness of Ext.A1. Even the learned senior counsel for the appellants did not venture much to impress upon the Court the genuineness of Ext.A1. In fact the attempt was to save the suit dehors Ext.A1. 15. As noticed supra, if the suit is not on Ext.A1, it is apparently barred by limitation. To get over the issue of limitation, the plaintiffs rely on Ext.A14 agreement allegedly executed between the 2 nd plaintiff and the 3 rd defendant. Ext.A14 acknowledges the liability of Rs.1 crore of the first defendant firm, of which defendants 2 and 3 are partners. Ext.A14 assures the repayment of the amount on or before 31.03.2015, and acknowledged the handing over of the original title deeds of the plaint schedule property as security. The genuineness of Ext.A14 agreement is disputed by the defendants. The suit is not on the alleged mortgage, the creation of which is also disputed by the defendants. 16. The execution and existence of Ext.A14 agreement is not pleaded in the plaint. The execution and existence of Ext.A14 agreement is not mentioned even in Ext.A2 suit notice dated 16.02.2018. Ext.A14 agreement is not even produced along with the plaint. It was produced only at the time of evidence. In the chief affidavit of PW1, it is sworn to that the 3 rd defendant executed Ext.A14 agreement by affixing her finger print. However, a perusal of Ext.14 agreement shows that a signature, purporting to be that of the 3 rd defendant, is also seen in all the pages of Ext.A14, along with thumb impression. Even a mere glance at the signatures of the 3 rd defendant, at the various pages of Ext.A14 agreement, does not inspire confidence. Of course, we have not reached our conclusion upon the same. 17. As noticed by the trial court, there is contradiction between the evidence of the two witnesses to Ext.A14, namely, PW2 and DW3, with regard to the place of execution and also the persons who were present when the document was executed. According to PW2, the 3 rd defendant had executed Ext.A14 in his presence. PWs1 and 2 deposed that Ext.A14 was executed in the presence of DW3. But DW3 deposed that the 3 rd defendant had not signed Ext.A14 in his presence. According to PW2, the 3 rd defendant had executed Ext.A14 in his presence. PWs1 and 2 deposed that Ext.A14 was executed in the presence of DW3. But DW3 deposed that the 3 rd defendant had not signed Ext.A14 in his presence. So also, according to DW3, he had affixed his signature at his house. However, according to PWs 1 and 2, Ext.A14 was executed in the presence of DW3 and that too, at the house of the defendants. No steps are taken to have an expert opinion on the signatures and thumb impressions in Ext.A14 with that of the 3 rd defendant. On the above materials, we are in agreement with the trial court in holding that, the plaintiffs have failed to prove Ext.A14 agreement. 18. Ext.A14 agreement having been held against, the other points argued, as to whether under the said document there has been an acknowledgment of the liability by a partner of the 1 st defendant firm, and whether it will bind the other partners, etc., do not arise for consideration. The suit could be saved from the bar of limitation only if Ext.A14 agreement is upheld and it is held that the liability is acknowledged thereunder. Ext.A14 having been held against, the suit is beyond the period of limitation. The trial court was right in having held so. 19. Thus, the plaint claim is bound to fail. We concur with the trial Court, in having dismissed the suit. The appeal fails and is dismissed. No costs.