Nirmal Chandra Bhat and P. Gangan Pillai v. P.P. Varkey Painadath, Baby Thomas, M.A. Thampi and Addl. Respondents 4 to 7

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **SATURDAY, THE 20TH DAY OF DECEMBER 2014/29TH AGRAHAYANA, 1936** ## **AS.No. 317 of 1999 (D)** **----------------------AGAINST THE ORDER/JUDGMENT IN OS 571/1993 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 11-03-1998** ## **APPELLANT(S)/DEFENDANTS 1 &3:** - **----------------------------1. NIRMAL CHANDRA BHAT SON OF ANANDAVADAYAR, ELITHUNDIPARAMBIL, KORILVATTOM, DESOM, ERNAKULAM VILLAGE.** **2. P. GANGAN PILLAI, PULLELIL VEETIL, MANIKKAMANGALAM KARA. KALADY VILLAGE.** ## **BY ADV. SRI.V.SANTHARAM** **RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 2 & 4:** **---------------------------------------------** - **1. P.P.VARKEY PAINADATH, NAYATHOD KARA, ANKAMALY VILLAGE.** **2. BABY THOMAS, PANIKULANGARA, KUNNAKARA, KUNNAKARA VILLAGE, PARAVUR TALUK.** **3. M.A. THAMPI, MAZHUVANCHERRY, PARAMBATH, CHERAI MURI. PALLIPPURAM VILLAGE.** - **ADDL.R4: KUNJAMMA VARKEY, W/O. LATE P.P. VARKETY, PANADATH (KUTTIKATTIL)NAYATHOD KARA, ANKAMALY VILLAGE.** - **R5: PAULSON P. VARKEY, S/O. LATE P.P. VARKETY, DODO-** - **R6: LISSY THAMPY, W/O. LATE M.A.THAMPI, MAZHUVANCHERRY PARAMBATH, CHERAI MURI, PALLIPPURAM VILLAGE.** - **R7: AYBY JOHNSON, W/O. JOHNSON ABRAHAM, PUTHUKUNNATHU, KOTTAPPADY, ALUVA.** - **(R1 DIED. ADDL. RESPONDENTS 4 TO7 IMPLEADED AS PER THE ORDER IN CMP NO.1443/2001 DT. 1.3.2006.)** ## **AS.No. 317 of 1999** **R, BY ADV. SRI.K.N.CHANDRABABU R4-R7 BY ADV. DR.GEORGE ABRAHAM** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08-12-2014, THE COURT ON 20-12-2014 DELIVERED THE FOLLOWING:** ## **K.T. SANKARAN & P.D. RAJAN, JJ.** ------------------------------------------- A.S.No.317 of 1999 ---------------------------------------------Dated this the 20[th] day of December, 2014 ## **JUDGMENT** ## **P.D. Rajan, J.** Appellants are 1[st] and 3[rd] defendants in O.S.No.571/1993 of Principal Sub Judge, North Paravur and 2[nd] and 4[th] defendants are 2[nd] and 3[rd] respondents in this appeal. The plaintiff is the first respondent in this appeal, who filed the above suit for recovery of money from the defendants. After filing this appeal, the 1[st] respondent died and his legal representatives were impleaded as additional respondents 4 to 7. 2. The plaintiff's/1[st] respondent's case in the trial Court was that the defendants were partners of a business firm, namely, 'Ernakulam Rice Centre', which was engaged in A.S.No.317/1999 2 the sale and purchase of rice. From 1987 onwards, defendants 2 and 3 had purchased rice from the plaintiff on credit basis and periodically the amount was paid. During the year 1992, the defendants terminated their business and the plaintiff demanded the due amount. For settlement of accounts, Advocate Gangadharan Nair and Jose Thettayil intervened as mediators and the plaintiff had entrusted all his accounts to defendants 2 and 3. As per the settlement, the mediators assessed the amount due to the plaintiff as 1,31,973/- with 9% interest per₹ annum. Even after settlement of accounts, there was no payment from the side of the defendants. In the circumstances, the above Original Suit was filed. 3. In the written statement, the 1[st] defendant contended that he is the owner of the building, where 2[nd] and 3[rd] defendants were conducting business and A.S.No.317/1999 3 therefore, he has no connection with the aforesaid business. But, the 2[nd] and 3[rd] defendants contended that the plaintiff and the defendants were partners not only in the rice business but also in some other business. In many occasions, though they demanded to settle the accounts, the plaintiff was not inclined to settle the accounts. In such circumstances, the mediators were appointed, but, they never contacted defendants 2 and 3, therefore, the statement of accounts prepared by the mediators were not in consultation with the defendants. According to the defendants, the mediators acted unilaterally in support of the plaintiff and therefore, the award passed by the Arbitrators is not acceptable in evidence. Hence, they have no liability to pay the due amount. The 4[th] defendant in the written statement submitted that the 1[st] and 2[nd] defendants had purchased rice from the plaintiff and he is A.S.No.317/1999 4 not liable to pay any amount. 4. Both parties adduced evidence in the trial Court. The oral evidence consists of testimony of PW1, PW2 and DW1 and documentary evidence consists of Exts.A1 to A3. The trial Court after analysing the oral and documentary evidence, decreed the suit. Aggrieved by that, defendants 1 and 3 preferred this Appeal Suit. 5. The learned counsel appearing for the appellants contended that the Arbitrators have not issued any notice in writing to the parties. Therefore, the award or the decision taken by the Arbitrators is not acceptable in evidence. There was no valid evidence for decreeing the suit. Filing of Ext.A1 document in a Court of law does not amount to proof of its contents. Moreover, admission of a document in a Court may amount to admission of its contents, but, not the truth in the document. Therefore, A.S.No.317/1999 5 the documents produced before Court are not in accordance with the Evidence Act, which cannot be relied upon by the Court. 6. The business transaction has been admitted by the appellants in their written statement. According to the 1[st] respondent, the appellants and other defendants were running a partnership firm, 'Ernakulam Rice Centre' and he supplied rice from 1987 onwards on credit basis. The son-in-law of the 1[st] respondent, who is the 4[th] defendant, was also one of the partners in that business. The partners decided to wind up the business in the year 1992 and appointed mediators, and agreed to accept the decision taken by the mediators and accordingly Ext.A1 was formulated on the basis of mediation. The appellants admitted that they had entrusted the mediators, Sri. Advocate Jose Thettayil and Advocate Gangadharan Nair A.S.No.317/1999 6 to settle the accounts and all of them agreed to accept the opinion of the mediators. Therefore, Ext.A1 agreement is binding on all partners of the partnership. Even after accepting the binding nature of Ext.A1 agreement, the appellants contended that Ext.A3 is not binding on them. Their contention is that 3[rd] defendant was not a signatory in Ext.A1 agreement and therefore it is not binding. But we have verified Ext.A1 and found that all the signatories have signed in Ext.A1 and that contention is only to be discarded. In their written statement, they admitted that they accepted Ext.A1 agreement. Ext.A3 is the decision taken by the mediators on the basis of Ext.A1 agreement and the defendants cannot take a contention that Ext.A3is not binding on them. Even though Ext.A2 lawyer notice was issued to the appellants, there was no reply denying the liability as per Ext.A3. Therefore, Ext.A1 agreement and A.S.No.317/1999 7 Ext.A3 decision are binding on appellants. 7. The rule of evidence says that when there is direct evidence available in a case and it is believable, the denying party has to bring some evidence to reject the direct evidence adduced by the parties. It is admitted by the appellants that Ext.A1 is true and the matters furnished in Ext.A3 are not true. In this context, they relied on the decisions in v. **Vijayachandran Superintendent of Police** [2008(3) KLT 307] and **Life Insurance Corporation of India** v. **Ram Pal Singh Bisen** [(2010) 4 SCC 491]. **In Vijayachandran's case (supra),** the discussion was with regard to an offence committed under Section 120A of I.P.C. In **Life Insurance Corporation's case (supra)** , the discussion was with regard to the admission made by a party in a case. While discussing Section 101 of the Evidence Act, the Apex Court held that “under the law of evidence also, it is A.S.No.317/1999 8 necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court.” The above decision is not applicable to the facts of the case. The contents of the agreement were deposed before the signatories of Ext.A1. Moreover, the contents are not disputed by them after execution of Ext.A1. Therefore, after accepting the contents in Ext.A1, they cannot deny the admission made by them subsequent to that. An admission made by a party or by a person connected with him in any of the ways described under Sections 18 to 23 under certain circumstances is relevant. 9 A.S.No.317/1999 8. The oral evidence of PW2, who is one of the mediators, is sufficient to prove the contents in Ext.A1 . It is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Ext.A1 is approved by the appellants and the contents are also proved through PW2. Even after production of Ext.A3 on the basis of Ext.A1, the appellants cannot contend that contents in Ext.A1 are not true. The evidence of PW2 is corroborating Ext.A1 agreement. Initial burden in proving the liability was discharged by the 1[st] respondent by his evidence. In the absence of any denial, the contention advanced by the appellants is not sustainable in law. Ext.A1 agreement was executed, which was proved through the direct oral testimony of PW2 and Ext.A3 decision also. We find that the trial court considered all the relevant contentions and legal principles. A.S.No.317/1999 10 Therefore, no reasons are put forward by the appellants to discard the direct evidence of PWs 1 and 2. This appeal lacks merit and it is liable to be dismissed. Accordingly, we dismiss the appeal. No order as to costs. ## **K.T.SANKARAN, JUDGE.** **P.D. RAJAN, JUDGE.** acd A.S.No.317/1999 11 There was no contra evidence adduced by the appellants to rebut the evidence adduced by PW1. In the absence of any contra evidence, we do not find any merit in the argument. The initial burden of proving a prima facie case in favour of the case of first respondent has already been discharged by him. When first respondent was examined as PW1, he gave all evidence in support of the prima facie case. He also proved the contents in Ext.A1 and A3 through PW2. After proving the prima facie case, the onus shifts to the defendant to rebut the evidence made out by the plaintiff. Therefore, when PW1 proved his allegation before a court, which means that on a contested issue, one A.S.No.317/1999 12 of the contesting parties has adduced his evidence to establish his case. Here, no contra evidence has been adduced by the appellants to substantiate the contention advanced by them in this appellate stage. Therefore, the onus of proof in the sense of establishing their case unaltered throughout the trial since they have admitted the execution of Ext.A1. When entire evidence on both side is let in, when one of the party on whom the burden lies has not discharged it, the contention will fail when he did not adduce any positive evidence to that contention. A.S.No.317/1999 13