M/S. Fantasy Collections represented by Managing Partner Jose George S/O. George Joseph, Appellants/Defendants v. Mathew Sebastian, Respondent/Plaintiff

**“C R”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** **RFA.No.111 of 2012** **AGAINST THE JUDGMENT AND DECREE IN OS 89/2010 of SUB COURT, PALA DATED 22-08-2011** ## **APPELLANTS/DEFENDANTS 1 TO 4:** **M/S. FANTASY COLLECTIONS REPRESENTED BY MANAGING PARTNER JOSE GEORGE S/O. GEORGE JOSEPH, AGED 32 YEARS, RESIDING AT MAROTTICKAL HOUSE, BHARANANGANAM P.O, KOTTAYAM DISTRICT 2 JOSE GEORGE, S/O. GEORGE JOSEPH, AGED 32 YEARS, RESIDING AT MAROTTICKAL HOUSE, BHARANANGANAM P.O, KOTTAYAM DISTRICT, AND PARTNER OF M/S. FANTASY COLLECTIONS, PALA 3 BINU GEORGE S/O. GEORGE JOSEPH, AGED 27 YEARS, RESIDING AT MAROTTICKAL HOUSE, BHARANANGANAM P.O, KOTTAYAM DISTRICT, AND PARTNER OF M/S. FANTASY COLLECTIONS, PALA 4 SINI THOMAS D/O. K.C.THOMAS, AGED 30 YEARS, RESIDING AT KADUTHODIL HOUSE, EZHACHERRY P.O., KOTTAYAM DISTRICT, AND PARTNER OF M/S. FANTASY COLLECTIONS, PALA BY ADVS. SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** ## **RESPONDENT/PLAINTIFF:** **MATHEW SEBASTIAN, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABIN JOSE, S/O. V.J.JOSEPH. AGED 30, RESIDING AT VATTAPPALLY HOUSE, KIZHAPARAYAR P.O, BHARANANGANAM -686578** **BY ADVS. SRI.H.HAMZA ROWTHER SRI.V.K.PEERMOHAMED KHAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON 30.5.2019 DELIVERED THE FOLLOWING:** RFA No.111 of 2012 2 ## **JUDGMENT** This appeal is preferred by the defendants against the judgment and decree dated 22.08.2011 of the Sub Court, Pala in O.S No.89/2010. ## 2. Briefly the facts are as follows: The plaintiff, the second defendant and three others namely James Joseph, Babu T.V and Girish Babu had entered into a partnership business by executing a deed on 5.6.2003 and the business was started by name and style 'M/s.Fantasy Collection' for conducting business of crockeries, toys, presentation items etc. Subsequently, the plaintiff, James Joseph, Babu T.V and Girish Babu expressed their desire to retire from the partnership and the defendants 2 and 3 namely Jose George and Binu George expressed their desire to join as continuing partners. So a reconstituted partnership deed was executed on 1.6.2009 incorporating the terms of agreement of retirement and incorporation of partners and registered the deed before Registrar of firms. All the retiring partners and incoming partners verified the books of accounts of the firm and fixed that the RFA No.111 of 2012 3 plaintiff was entitled to get Rs.2,28,184.06/- as share of capital, balance in current account and share of profit along with the other retiring partners. The time for payment of the amount was 6 months from the reconstituted partnership on 1.6.2009. The plaintiff waited till 1.12.2009 but the defendants, the existing partners of the first defendant firm failed to pay the amount and hence the suit was necessitated. 3. The defendants admitted the reconstitution of the partnership firm as well the amount to be paid to the plaintiff as the share of the profit and capital as Rs.2,28,184/-. It was also admitted that six months time was granted for payment and to give some elasticity it was decided to pay the amount due to all the retiring partners in installments. The defendants started payment in the month of October 2009 and made the whole payment by the end of December 2009. So the amount promised at the time of the reconstitution of the partnership deed was paid. The allegation that the plaintiff waited till 1.12.009 and thereafter demanded the amount is absolutely false and baseless. In fact the plaintiff had another partnership business with the second defendant and few others by name 'Intimate Chitts and RFA No.111 of 2012 4 Finance Ltd.' It was dissolved on 9.9.2009. The plaintiff had to pay Rs.20 lakhs to four persons but he did not pay the amount. The second defendant had already paid the money to the persons allotted to him. Since the plaintiff did not pay the amount it caused problems to the second defendant and hence he lodged a complaint before the Circle Inspector of Police, Pala. Other partners also lodged complaints and then the plaintiff agreed to pay the amount by 10.2.2010. Then he stealthy went to Nedumbassery Airport for leaving India on the very same day but due to the intervention of the Police he could not leave India and he was arrested; thereby he was compelled to make payments to the complainants. He had issued a cheque to one partner but the cheque was dishonoured and a criminal case was filed against him. Now the plaintiff in order to wreck vengeance had filed this case.The suit is a false and frivolous one. 4. Before the court below the power of attorney holder was examined as PW1 and Exts.A1 and A2 were marked on his side. The second defendant was examined as DW1 and DWs 2 to 4 were also examined and Exts.B1 to B7 series were marked on the side of the defendants. The court below after evaluation and RFA No.111 of 2012 5 appreciation of the evidence decreed the suit as prayed for. The said judgment and decree are under challenge . 5. Heard Smt.Daisy.A.Philipose, the learned counsel for the appellants/defendants and Sri.H.Hams Rawther, the learned counsel for the respondent/plaintiff. 6. The allegation that the plaintiff, second defendant, James Joseph, Babu T.V and Girish Babu had business partnership by name M/s. Fantasy Collection for the sale of crockeries and presentation items as per a partnership deed dated 5.6.2003, is not denied. It is also admitted that the plaintiff, James Joseph, Babu T.V and Girish Babu had retired from the 1[st] defendant partnership and it was reconstituted as per Ext.A2 partnership deed dated 1.6.2009 by incorporating new partners in the place of retiring partners. The defendants 2 and 3 joined as continuing partners of the firm. It is also admitted that an amount of Rs.2,28,184.26/- was due to the plaintiff as his share capital,balance in current account and share of profit on the date of reconstitution of the partnership dated 1.6.2009. As per Ext.A2 the existing partners agreed to pay the said amount to the plaintiff within a period of six months from the date of RFA No.111 of 2012 6 reconstitution of the partnership deed, ie; by 1.12.2009. The plaintiff's definite case is that he waited upto 1.12.2009 for his money and only thereafter demanded the amount. But the defendants did not pay the same. On the other hand, the defendants raised a plea of discharge of the entire amount of Rs.2,28,184/- by effecting payments by way of installments which started from 1.10.2009 and ended by 15.12.2009. So the question to be looked into is whether the discharge pleaded by the defendants is correct or not? 7. In order to substantiate the case of the defendants they have mainly relied on Ext B1 series of ledger books and Ext.B2 day book of the firm for the year 2009-2010. As mentioned earlier, the period fixed for payment was six months from the date of reconstitution of Ext.A2 partnership deed dated 1.6.2009. Ext.B1 (d) is the relevant page in the ledger with respect to the account of the plaintiff. Ext.B1 (a),(b) and (c) are the relevant pages in the ledger of the other retiring partners. The court below rejected Ext.B1 series as not genuine on a finding that, there was no chance to enter the capital account in the register, from 1.4.09 with respect to the newly inducted partners who RFA No.111 of 2012 7 joined the partnership on 1.6.2009. But it is to be noted that the account entered in the ledger was for the period from 1.4.2009 to 31.3.2010. Ext.B1(e) and (g) would show that dates of credit of capital account of the newly inducted partners were on 1.6.2009 and not 1.4.2009 as that of the retiring partners. Therefore, the court below is not justified in discarding those documents as not genuine. Ext.B2 day book would show the entries of the day to day transactions for the period from 1.4.2009 till 31.3.2010 ie; for the financial year 2009-2010. The day book had been certified by one Binu George, Assistant Administrator who prepared the statement on the basis of the original data of accounts in the account software of M/s. Fantasy Collections, Pala, the first defendant firm. The day book contains in total 133 pages. An entry in page No.69 of Ext.B2 would show that on 1.10.2009 an amount of Rs.50,000/- had been paid to Mathew Sebastian (the plaintiff) the retired partner. The subsequent payments were seen entered as follows: _**Page No. Date Amount**_ 74. 15.10.2009 Rs.25,000/76. 21.10.2009 Rs.25,000/- RFA No.111 of 2012 8 |81.|2.11.2009|Rs.20,000/-| |---|---|---| |84.|1.11.2009|Rs.25,000/-| |89.|25.11.2009|Rs.20,000/-| |90.|30.11.2009|Rs.20,000/-| |91.|3.12.2009|Rs.20,000/-| |96.<br>|15.12.2009|Rs.23,184.06/-| 8. So the total payment as per Ext.B2 is Rs.2,28,184.06/-. Ext.B2 would further reveal that such payments have been effected to the other retiring partners and the same had also been entered in the day book in the relevant pages. The question to be looked is whether the the entries in Ext.B2 would show that the discharge pleaded by the defendants is correct or not. According to the learned Counsel for the defendants the day book had been properly maintained and the entries in Ext.B2 were regularly kept in the ordinary course of business and those entries would show that the amount due to the plaintiff was discharged and no amount was due to him as alleged. As per Section 34 of the Indian Evidence Act, the entries in a book of account which are kept regularly in the course of business are relevant, but that statement alone are not sufficient to charge RFA No.111 of 2012 9 any person with the liability. 9. The learned Counsel relies on the decision of a Division Bench of this Court in **Chirag Enterprises, Merchant and Commission Agents v. Star Traders, Merchants and Another (2012 (4) KHC 271)** in support of her argument that the entries in Ext.B1 series and Ext.B2 are correct and authenticated and the same are corroborated by the other evidence available on record. It has been held in **Chirag enterprise'** s case (supra) that the entries in the day book cannot be taken as substantive evidence unless those are corroborated by the other independent evidence in view of the mandate under Section 34 of the Evidence Act. Section 34 of the Indian Evidence Act is reiterated for easy reference; ## “34. **[Entries in books of accounts including those maintained in an electronic form] when relevant** – [Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” ## 10. A reading of Section 34 would show that in the absence RFA No.111 of 2012 10 of independent corroborative evidence even if the entries in the books of account are correct and authenticated, are not sufficient to fix liability upon any person and hence to rely on the entries in a book of account which has been maintained correctly,independent evidence to corroborate the same is required. 11. A Single Bench of this Court in **Thariyan V.O. v. St.Theresas Timber Industries (2017 KHC 102)** has observed in paragraph No.17 that: “............... It has become trite law that as per S.34 of the Evidence Act, the entries in books of accounts alone shall not be sufficient evidence to clothe a person with liability and, therefore, some independent evidence has to be given to substantiate the claim.” ## It is further observed in paragraph No. 23 as follows. “23. As to what amounts to independent evidence sufficient to corroborate any such document falling under S.34 of the Evidence Act, depends upon the facts and circumstances of each case. What has to be considered is whether there is any other evidence, except the entries in the books of accounts being relied on, to justify the claim made by the person concerned in order to show that the entry is true and correct. In Manilal (supra), it was held that the oral testimony of the person concerned and his witnesses, who support the document, is relevant under S.34 of RFA No.111 of 2012 11 the Evidence Act and the same can be taken as corroborative piece of evidence. In that particular case, when the said entries were proved through DW1 and DW2, the Division Bench of this Court has accepted the entries in the said accounts as one clearly coming under S.34 of the Evidence Act. In this particular case, the best evidence is lacking when the plaintiff has failed to examine the said person named Ravi, who was still alive, at the time of examination of PW1.” 12. It is pertinent to note that in this case also the person who certified Ext.B2 has not been examined as a witness by the defendants to prove the entries in Ext.B2. But the second defendant was examined as DW1 and he had given definite evidence regarding the payments effected to the retired partners including the plaintiff by giving special emphasis to the relevant pages. 13. In short DW1 had spoken about the entries in the ledger book and the day book to prove that the payments made to all the retired partners including the plaintiff were entered in the ledger and day book and the entries in the ledger corresponds to the entries in the day book which were kept in the ordinary and daily course of business of the first defendant firm. It is also significant to note Dws 2,3 and 4 the other partners RFA No.111 of 2012 12 retired along with the plaintiff who received money as revealed from Exts.B1 and B2 on the basis of Ext.A2 reconstituted partnership had spoken regarding the receipt of their share profits etc on the respective dates as installments. Though they were thoroughly cross examined nothing had been brought out in evidence by the plaintiff to discard their depositions before the court below. In **Manilal v Johnson (2011(1) KHC 150** ) it was held that the oral testimony of the person concerned and his witnesses, who support the document, is relevant under Section 34 of the Evidence Act and the same can be taken as corroborative piece of evidence. ## 14. This Court in **Kunjamma And Others v Govinda Kurukkal (1960 KHC 47)** observed that; ''No particular set of rules or system of keeping accounts is prescribed under Section 34 of the Evidence Act. Even the roughest memoranda of accounts kept by petty shop-keepers are admissible if they are authentic. The crucial question for consideration is whether the entries are honest or whether there are any conscious attempts at falsification. Account books will be discredited if some of the entries therein are proved to be bogus by independent evidence which precludes the possibility of error or accident.” RFA No.111 of 2012 13 15. In this case the evidence of DW1 stands corroborated by the evidence of DW2 to 4. It is sufficient to conclude that the best evidence is available to justify the entries in the documents relied on by the defendants though the person who prepared and certified the same on the basis of the data available in the electronic accounts maintained by the firm was not examined. When there is corroborative evidence so as to accept the books of accounts as genuine, the entries in Ext.B1 and B2 are admissible under Section 34 of the Evidence Act. A reading of Section 34 of the Evidence Act makes it clear that independent evidence to corroborate the document falling under the Section is required and definitely it depends upon the facts and circumstances of each case. The evidence of DWs2 to 4 cannot be thrown out as not reliable for no reason. The retired partners cannot be termed as interested witnesses. Like the plaintiff their accounts were also available regarding the payments received as installments as entered in the day book and ledger. The entries in the ledger tallies with the day book in all particulars. Therefore, it is not proper and justifiable to discard the ledger and the day book maintained honestly in the ordinary course of business just RFA No.111 of 2012 14 because of the fact that the person who certified the same was not examined as a witness. Hence there is nothing wrong in relying on the evidence of these witnesses to corroborate Ext.B1 series and B2 as well to consider it as substantive piece of evidence to substantiate the case of the defendants, that the liability due to the plaintiff had been discharged by effecting payments within the time prescribed as per the reconstituted partnership deed proved as Ext.A2 . 16. It is pertinent to note that the plaintiff was not examined in the case. His power of attorney holder was examined as PW1 but, what could be gathered from his evidence on a meticulous evaluation and appreciation was that he had no idea about the transaction between the plaintiff and the defendants and also whether the other partners, who retired from the partnership, had received any amount in terms of Ext.A2. He had only deposed before the court that the amount claimed by the plaintiff was due from the defendants, but when the defence contended that the amount due was discharged by way of installments as in the case of other partners, the nonexamination of the plaintiff personally before the court would RFA No.111 of 2012 15 cast strong and sound suspicion about the case presented by the plaintiff. The amount claimed was returned by the defendants on various dates as seen entered in Ext.B2 supported by Ext.B1. The non-examination of the plaintiff who alone had the personal knowledge, before the court is definitely a defect on the side of the plaintiff to prove his case. The law is well settled that in matters requiring personal knowledge, evidence cannot be adduced through a power of attorney. (See Janki Vashdeo v. Indusind Bank (2005(2)KLT 265(SC), Ummer Farooque v. Naseema (2005(4)KLT 565), Ratheesh Kumar v. Jithendra Kumar (2005(2)KLT 669) and Rekharani v. Prabhu (2007(3)KLT 917). 17. Ext.B7 series of receipts were also produced by the firm to show that returns submitted before the Sales Tax authorities for the relevant period were received in the office though it was late. The failure to produce the returns submitted before the Sales Tax Office alone is not sufficient to conclude that the account books were not properly maintained by the defendants in the ordinary course of business. The court below is not justified in rejecting Ext. B1 series without considering Ext B2 day book regularly kept in the ordinary course of business RFA No.111 of 2012 16 corroborated by the oral testimonies of the other partners who retired along with the plaintiff. 18. Therefore, the finding rendered by the court below that the failure to produce the returns submitted to the Sales Tax Office was fatal to the case of discharge pleaded by the defendants, is not correct. It is also significant to note that though the time fixed for payment was 1.12.2009, no suit notice was issued to the defendants demanding the amount. It is also to be noted that no explanation was forthcoming on the side of the plaintiff to prefer the suit only on 20.4.2010.The court below has miserably failed to appreciate all these facts to verify whether there was proper discharge of the liability as pleaded by the defendants. For the reasons aforementioned, the impugned judgment and decree are set aside and the suit is dismissed. Accordingly the appeal is allowed. In the facts and circumstances of the case however, there shall be no order as to costs. **Sd/-** **SHIRCY V.** Smm **JUDGE** RFA No.111 of 2012 17