THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.676 of 2004
JUDGMENT:
This appeal is filed against the Judgment and Decree of the trial Court in O.S.No.290 of 1999 dated 05.03.2003.
2. The Bhaskarateja Chits & Finance (P) Ltd., filed suit for recovery of Rs.1,97,400/- with interest and costs from defendants. The trial Court considering the evidence of both sides decreed the suit with costs and also interest at the rate of 12% p.a from the date of suit till the date of decree and 6% p.a from the date of decree till the date of realization and the suit against defendant No.4 was dismissed without costs. Aggrieved by the said Judgment, the first defendant in the suit preferred the present appeal. He mainly contended that there is no authorization from the appellant/first defendant to adjust amount of Rs.47,200/- and the total prize amount was not paid to him. The plaintiff obtained signatures on blank vouchers, therefore it cannot be said that he accepted for adjustment of Rs.47,200/-. He also stated that the trial Court observed that he did not give any notice to the plaintiff Company for payment of balance prize amount and thus his plea cannot be considered 2 and it is erroneous. The trial Court has taken adverse inference and did not consider the plea of the defendant No.1. Therefore, requested this Court to set aside the Judgment and Decree of the trial Court in O.S.No.290 of 1999 dated 05.03.2003.
3. The plaintiff Company filed suit for recover of Rs.1,97,400/- with interest at the rate of 12% p.a. In the written statement filed by the first defendant, he admitted that he was the successful bidder in the auction dated 26.10.1997 and he was the member of the plaintiff Company, but the plaintiff paid only Rs.62,800/- out of prize amount of Rs.1,10,000/-. He approached the plaintiff Company several times for balance of amount, but the plaintiff Company avoided to pay the same. Even after receiving summons from the Court, he approached the plaintiff Company and demanded for balance bid amount with interest, but the plaintiff Company without making any payment filed false suit against him and other defendants with high rate of interest.
4. The Recovery Officer of the plaintiff Company was examined as P.W.1. He stated that the first defendant became a subscriber of a chit of the plaintiff Company on 29.04.1997 3 which is valued at Rs.2,00,000/- payable in 50 monthly instalments at the rate of Rs.4000/- per month and also executed an agreement of chit under Ex.A1. In the auction conducted on 26.10.1997, the first defendant became the successful bidder and agreed to forego Rs.90,000/-. He also offered guarantors on 04.12.1997. The defendant Nos.2 to 5 executed an agreement of guarantee on 04.12.1997, under Ex.A2 and also executed a D.P note in favour of plaintiff for Rs.1,72,000/- towards future liability under Ex.A3. The prize amount was paid to the first defendant under a Cheque for Rs.62,800/- and Rs.47,200/- towards adjustment. Ex.A4 is the cash voucher dated 04.12.1997. The first defendant paid 9 instalments in all and committed default from 11.01.1998. The plaintiff got issued legal notice on 12.08.1998. Ex.A5 is the office copy of legal notice. Exs.6 to 8 are postal acknowledgments of D1, D2 and D4. Exs.A9 and A10 are returned postal covers of D3 and D5. Ex.A11 is the true extract of the statement of account. Ex.A12 is the true copy of authorization letter issued to him for deposing before the Court. As on the date of filing the suit, defendants has to pay Rs.1,97,250/- and they claim interest at the rate of 12% p.a. As 4 the defendants failed to make payment, they filed suit for recovery of amount.
5. In the cross-examination, he stated that he was working as a Recovery Officer of the plaintiff Company. He has personal knowledge about the suit transaction. The first defendant is a subscriber of two chits in the plaintiff Company. The first defendant became the successful bidder of another chit valued at Rs.5,00,000/-. He has no idea whether the first defendant is also a subscriber of a daily chit for Rs.50,000/-. It was suggested to him that plaintiff Company did not pay Rs.40,000/- towards the daily chit though he paid the instalments for about 400 days. He stated that they paid Rs.62,800/- by Cheque and Rs.47,200/- by way of adjustment in respect of the same chit. He also stated that they did not submit any particulars showing consent of the first defendant for adjustment and not filed any proof in support of the alleged adjustment.
6. The first defendant was examined as D.W.1 and admitted that regarding receipt of Rs.62,800/- through Cheque out of Rs.1,10,000/-, but denied the adjustment of Rs.47,200/-. He 5 admitted his signature on Ex.A4 and stated that his signature was obtained for receiving Rs.1,10,000/-, but paid only Rs.62,800/- by way of Cheque. He also admitted that after receiving legal notice from the plaintiff Company, he did not issue any reply notice and he has not given any notice demanding the plaintiff Company to pay the balance amount either before filing of the suit or after filing of the suit. Moreover, he has not filed counter claim for recovery of Rs.47,200/- from the plaintiff Company. Exs.A1 to A11 are marked through the plaintiff and no documents were filed by the defendant.
7. Now, it is for this Court to see whether there are any errors in appreciation of facts by the trial Court or not.
8. There is no dispute regarding the fact that plaintiff is a Chit Fund Company and the first defendant is a subscriber of that Company for an amount of Rs.2,00,000/- and he executed an agreement of chit on 29.04.1997 and became successful bidder in the auction which was conducted on 26.10.1997 forgoing Rs.90,000/-. He paid Rs.28,000/- till the payment of prize amount and his future liability is Rs.1,72,000/-. He furnished guarantee through defendants 2 to 5 and also 6 executed a promissory note on 04.12.1997 with collateral security. The plaintiff Company paid Rs.62,800/- by way of Cheque and also adjusted Rs.47,200/- by receipt Nos.884 & 885 on the same day and thus they paid Rs.1,10,000/-. The first defendant disputed the adjustment of amount on the ground that he never consented for the same. The plaintiff Company obtained signatures on the blank papers and vouchers and adjusted the said amount without his knowledge and he is not liable to pay the suit amount. He admitted his signatures on Ex.A4, but stated though he signed on the receipt for Rs.1,10,000/- only an amount of Rs.62,800 was paid to him by way of Cheque. The trial Court observed that he did not give reply to the legal notice of plaintiff Company nor gave any legal notice demanding the balance amount of Rs.47,200/- and not even filed counter claim after filing of the suit, therefore decreed the suit with interest and costs.
9. When the first defendant disputed the payment of Rs.47,200/- to him by way of adjustment, it is for him to raise an objection at the earliest point of time, but he failed to do so. Only when the plaintiff Company filed a suit for recovery of entire amount, he raised the said objection. As such, the trial 7 Court rightly decreed the suit on appreciation of the entire facts on record and there is no infirmity or illegality in the Judgment and Decree of the trial Court and it needs no interference.
In the result, the appeal is dismissed confirming the Judgment and Decree of the trial Court in O.S.No.290 of 1999 dated 05.03.2003. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 06.01.2023 tri 8 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.676 of 2004 DATED: 06.01.2023 TRI