A.S. No. 489 of 1995 (C)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939 A.S.NO.489 OF 1995 (C) ----------------------AGAINST THE JUDGMENT IN O.S. NO.65 OF 1989 OF PRINCIPAL SUB COURT, KOTTAYAM DATED 30-08-1994 APPELLANTS/PLAINTIFF: --------------------- 1. MUTHOOT G. GEORGE CHITS, A PARTNERSHIP FIRM HAVING ITS HEAD OFFICE AT 107/SECTOR 25, FARIDABAD, NEW DELHI AND HAVING ITS ADMINISTRATIVE OFFICE AT KOZHENCHERRY. 2. DR.GEORGE MATHEW, MUTHOOT HOUSE, KOZHENCHERRY. 3. MRS.LEELA ZACHARIAH OF MUTHOOT HOUSE, KOZHENCHERRY. 4. M.G. GEORGE OF MUTHOOT HOUSE, KOZHENCHERRY. 5. GEORGE THOMAS OF MUTHOOT HOUSE, KOZHENCHERRY. 6. GEORGE JACOB OF MUTHOOT HOUSE, KOZHENCHERRY. 7. GEORGE ALEXANDER OF MUTHOOT HOUSE, KOZHENCHERRY. 8. MRS. VALSA KURIAN OF MUTHOOT HOUSE, KOZHENCHERRY. 9. MR. GEORGE KURIAN OF MUTHOOT HOUSE, KOZHENCHERRY. 10. SUSAN KURIAN OF MUTHOOT HOUSE, KOZHENCHERRY. APPELLANTS 1 TO 6 AND 8 TO 10 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER MR GEORGE ALEXANDER, MUTHOOT HOUSE, KOZHENCHERRY. BY ADVS.SRI.K.P.DANDAPANI (SR.) SMT.SUMATHY DANDAPANI (SR.) ## A.S. NO.489 OF 1995 ------------------- ## RESPONDENTS/DEFENDNATS: ----------------------- 1. R.RAMAKRISHNAN, RESIDING AT NARVEL XXIV/XIV OF KOTTAYAM MUNICIPALITY, MANAGING PARTNER, PINKY, K.K. ROAD KOTTAYAM (DIED) 2. R.RADHA, W/O.R. RAMAKRISHNAN, RESIDING AT NARVEL XXIV/XIV OF KOTTAYAM MUNICIPALITY, MANAGING PARTNER, PALLAVI, K.K. ROAD KOTTAYAM. ## ADDITIONAL RESPONDENTS IMPLEADED: -------------------------------- 3. R. VENKETESH, S/O. LATE R.RAMAKRISHNAN, AGED 45, RESIDING AT KANIYAMPARAMBIL HOUSE, NEAR RAMAVARMA UNION CLUB, KOTTYAM - 686 001. LEGAL HEIR OF DECEASED 1[ST] RESPONDENT IS IMPLEADED AS ADDITIONAL 3[RD] RESPONDENT VIDE ORDER DATED 08.01.2016 IN I.A. NO.1113 OF 2015. 4. NARMADA SURESH, GRAHALAXMI, TC 6/2417/1, GRAB 172, KURIVIKAD, VATTIYOORKAVU P.O., TRIVANDRUM - 13. LEGAL HEIR OF DECEASED 1[ST] RESPONDENT IS IMPLEADED AS ADDITIONAL 4[TH] RESPONDENT VIDE ORDER DATED 15.3.2016 IN I.A. NO.13 OF 2016. R, R2 & 3 BY ADV. SRI.GEORGE JOSEPH PULIMOOTTIL R, R2 & 3 BY SMT. SREEJA SOHAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ALONG WITH A.S. NO.548 OF 1995 AND CONNECTED CASED ON 01.11.2017, THE COURT ON 09-11-2017 DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH** & ## **SATHISH NINAN, JJ** . = = = = = = = = = = = = = = = = = = **A.S. Nos.489, 548, 562, 633 & 636 of 1995** = = = = = = = = = = = = = = = = = = Dated this the 09[th] day of November, 2017 J U D G M E N T ## **SATHISH NINAN, J** . These appeals arise from the common judgment in suits for recovery of money. The plaintiff in the suits is one and the same. The defendants are either individuals, partnership firm or proprietorship concern of the same individuals. The suits were dismissed and the plaintiff is in appeal. 2. The nature of transactions in all the suits are similar. The nature of the plaint claim and the facts leading thereto are also identical, and so is the defence. The suits are for recovery of amounts allegedly due under chitty transactions. The plaintiff as foreman, conducts chitties. It is the case of the plaintiff that the defendants ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 2 :- subscribed to various chitties as mentioned in the respective plaints, prized them, but failed to make payment of installments in terms of the agreement. It is also the case of the plaintiff that for securing repayment of the installments, the defendants executed promissory notes in favour of the plaintiff. According to the defendants, they were in need of money and the plaintiff told them that amounts could be advanced by the plaintiff and the same could be adjusted on the defendants subscribing for and prizing the chitties. Accordingly the defendants joined the respective chitties. They never prized the chitties. The plaint claims were thus denied. 3. The court below found that there is no evidence to show that the defendants prized the chitties and also that as on the date of commencement of the chitties, the defendants were not subscribers thereto and accordingly dismissed the suit. The same is under challenge. ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 3 :- 4. Heard Shri. Roy Thomas, learned counsel for the appellant and Smt.Sreeja Sohan, learned counsel for the respondents. 5. Admittedly amounts were received by the defendants from the plaintiff, though according to them as 'advance'. It is also admitted that the defendants subscribed to the chits in question. According to the defendants, they have not prized the chitties and hence they have no liability for the plaint claim which is for amounts allegedly due on prizing the chitties. ## The court below found thus: “The defendants would contend that the amount was advanced by the plaintiff on the understanding that the same could be adjusted when the chitty is prized. Though the receipt of amount as mentioned in the promissory notes is not in dispute they would contend that it was not received as prized amount but it was only as a loan.” ## Therefore, even as found by the court below, ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 4 :- amounts were received by the defendants from the plaintiff and promissory notes were executed to secure the debt. The fact that the defendants subscribed to the chitties in question is admitted. It is also not in dispute that the defendants have not remitted the entire installments payable in respect of the respective chitty agreements. The court below held that there is no material to find that the defendants prized the chitties. We are unable to agree with the finding of the court below. On receipt of the prize amounts, which according to the defendants are advance amounts, they have executed receipts in favour of the plaintiff. The receipts acknowledge the prizing of the chitty. The contents of one of such receipts marked as Ext.A2 is extracted hereunder: “Rs.3,00,000/- Received from MUTHOOT M.GEORGE CHITS, 107/Sector 25, Faridabad 121004, New Delhi, Admn. Office: Kozhencherry, the sum of Rupees 3,00,000/- (Rupees Three laksh only) in respect of the prize amount due to me for **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 5 :- A.Class No.5 Ticket in Your Chitty started on 10.5.86 at Faridabad, New Delhi prized at the auction held on 10.6.86 at a discount of Rs.2,00,000/- (Rupees Two lakhs only) for the 2[nd] instalment. R. Ramakrishnan FOR PINKY R. Radha Sd/- ## MANAGING PARTNER New Delhi Admn. Office: Kozhencherry Dated 18/3/87” Accompanied by such receipts are the promissory notes and letters acknowledging the execution of the promissory notes. These documents coupled with the admission of the defendants of having received the amounts are sufficient to find the prizing of the chitties by the defendants. Undisputedly, the installments under the chitties have been defaulted. The plaintiff is entitled to realise the amounts as claimed in the plaint. 6. Even assuming that the documents are insufficient to find prizing of chitties by the defendants, that by itself would not be a ground to ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 6 :- dismiss the plaint claim. The liability under the promissory notes is not in dispute. It is to be noticed that the plaintiff has adjusted the installments paid by the defendants under the chitty agreements towards the debt and the claim in the plaint is only for the balance amounts due. Even if the defendants have not prized the chitties that does not absolve them from the liability due to the plaintiff. There is no evidence available to show that the entire debt has been wiped off or discharged by payment, much less there is no such plea. Therefore, even on the admitted case of the defendants, the plaintiff is entitled to realise the amounts due. 7. The finding of the court below that as on the date when the chitty commenced the defendants were not subscribers to the same does not appear to be correct. Exhibits A1, A10, A16, A21, A26 are the respective Thalavariyolas relating to the chitties in question. The defendants have signed on the ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 7 :- agreements on the date of commencement of the chitty. It is seen that payment of the 1[st] installment has also been effected by the defendants on the very same date as per cheques. The mere fact that the cheques were payable or paid few days later, and receipts were issued by the plaintiff on realisation of the cheques, does not mean that the defendants were not subscribers as on the date of commencement of the chitty. This is all the more so when the plaintiff as the foreman of the chitty has accepted the cheque payments. The court below has dismissed the suits holding thus: “..So in view of the evidence of PW2 and Exts B1 to B15, I have no hesitation to hold that the amounts paid in all these five suits were not the prized amounts but the payments were made only as a loan with the understanding that it would be adjusted as and when the chitties are prized. I also find that the defendants did not bid these chitties and that the amounts are not the prized amounts....” When the liability is admitted and there is no case of discharge of the debt, necessarily even on the ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 8 :- defence as above, the plaintiff is entitled for a decree as prayed (See Firm Srinivas Ram Kumar v. Mahabir Prasad and Other (AIR 1951 SC 177), Lekshmikutty Amma v. Narayana Pillai Velayudha Pillai and Others (AIR 1968 Kerala 57), V.Kamalaksha Pai v. Krishna Bhatta (AIR 1972 Kerala 110) and Peringottukara Finance and Investments Co. Ltd. v. Harikumar (2008 [4] KLT 571). It is to be noticed that the plaint claim is not for the entire amounts as shown in the demand promissory notes but is only for the balance after deducting the installment payments effected by the defendants. Therefore, in any view of the matter, we have no hesitation to hold that the plaintiff is entitled to the plaint claims. 8. Coming to the rate of interest payable, though interest at the rate of 18% per annum is claimed, considering the prevalent Bank rate of interest, we are of the opinion that grant of interest at the rate of 6% per annum would be just ## **A.S. Nos.489, 548, 562, 633 & 636 of 1995** -: 9 :- and reasonable. In the result, the appeals are allowed. The decree and judgment of the court below in O.S. Nos.65 of 1989, 228 of 1989, 229 of 1989, 230 of 1989 and 654 of 1989 are set aside. The plaintiff is granted a decree for realisation of the respective plaint claims with interest at the rate of 6% per annum from the date of suit till realisation, from the defendants jointly and severally and from their assets. The plaintiff shall be entitled to costs through out. Sd/- ## **V. CHITAMBARESH, JUDGE.** Sd/- **SATHISH NINAN, JUDGE.** Vsv /true copy/ P.S. to Judge