V.T. Shiva Kumar vs V.P.K. Textiles
2024 Latest Caselaw 5085 AP

Andhra Pradesh High Court - Amravati

V.T. Shiva Kumar vs V.P.K. Textiles on 4 July, 2024

APHC011155302002
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI                      [3397]
                          (Special Original Jurisdiction)

                   THURSDAY, THE FOURTH DAY OF JULY
                    TWO THOUSAND AND TWENTY FOUR

                               PRESENT

  THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
                    KRISHNA RAO

                       FIRST APPEAL NO: 2256/2002

Between:

   V.T. SIVA KUMAR AND ANOTHER

                                                        ...APPELLANTS

                                  AND

   V.P.K.TEXTILES, A.P.

                                                       ...RESPONDENT



Counsel for the Appellant:

   1. METTA CHENDRA SEKHAR RAO



The Court made the following:


JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 31.03.2000, in O.S. No.43 of 1996 passed 2 VGKRJ AS 2256 of 2002

by the learned Senior Civil Judge, Puttur [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.

2. The respondent/plaintiff filed a Suit for recovery of money on the basis of credit account.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.43 of 1996, are as under:

The plaintiff is a registered firm and carrying on business in yarn trade. Both the defendants are brothers and members of Hindu joint family dealing in yarn business. Defendants have purchased yarn from the plaintiff's firm worth of Rs.2,23,543/- on 10.11.1995 under credit bills bearing Nos.4/10 and 4/11 which were signed by the second defendant. They have acknowledged the same in the reply notice dated 07.10.1996 but failed to pay the amount due. Hence the suit for recovery of Rs.2,63,110/- which was due with interest at 18% p.a. as on the date of the suit though the defendants have agreed for interest at 24% p.a. as per the credit bills.

5. The defendants filed written statement by denying the averments mentioned in the plaint and further contended as follows:

One V.D.Thyagarajan and his son V.T.Nethaji were having business dealing in purchase of yarn from the plaintiff's firm. The first defendant and one V.T.Satheesh did not purchase any yarn from the 3 VGKRJ AS 2256 of 2002

plaintiff's firm, plaintiff is not the registered firm and it has no legal entity to maintain the suit, V.D.Thyagarajan and the second defendant have paid entire amount to the plaintiff's firm.

6. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the defendants are liable to pay the suit amount?

(ii) Whether the defendants have repaid the entire amount payable by way of cheques as pleaded?

(iii) To what relief?

7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A6 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.X1 and Ex.X2 were marked.

8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit vide its judgment dated 31.03.2000, against which the present appeal is preferred by the appellants/ defendants in the Suit questioning the Decree and Judgment passed by the trial Court.

9. Heard Sri Metta Chandrasekhar Rao, learned counsel for the appellants. None appeared for the respondents.

10. The learned counsel for the appellants would contend that the learned trial Judge came to wrong conclusion on the presumption without supporting any material evidence in decreeing the suit and the decree and judgment passed by the learned trial Judge is not sustainable and 4 VGKRJ AS 2256 of 2002

the appeal may be allowed by setting aside the decree and judgment passed by the trial Court.

11. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made by the appellants before this Court, the following point would arise for determination:

Whether the trial court is justified in decreeing the suit and whether the decree and judgment passed by the trial court requires any interference of this Court?

12. Point:

The case of the plaintiff is that the plaintiff is a registered firm and carrying on business in yarn trade and both the defendants are brothers and members of the Hindu Joint family dealing in yarn business. The plaintiff further pleaded that the defendants purchased the yarn from the plaintiff's firm worth of Rs.2,23,543/- on 10.11.1995 under credit bills bearing Nos.4/10 and 4/11 which are singed by the second defendant and they have acknowledged the same in reply notice dated 07.10.1996 but failed to pay the amount due.

13. The second appellant pleaded that himself and his father gave a cheque bearing No.569433 dated 20.01.1996 for Rs.1,49,130/- and another cheque bearing No.560431, dated 20.01.1996 for Rs.1,64,000/- drawn on Andhra Bank. They pleaded that they made excess payment to the plaintiff's firm. The first defendant is none other than the brother of second defendant. If at all, the excess payment was made to the plaintiff what prevented them for refund of excess amount, but no action was 5 VGKRJ AS 2256 of 2002

initiated by the defendants in the case on hand. Since the defendants pleaded the alleged discharge of entire amount to the plaintiff, the burden is on them to prove the alleged discharge as pleaded by them in the written statement.

14. To substantiate the case of the plaintiff, the plaintiff relied on the evidence of PW1 and Ex.A1 to Ex.A6. The evidence of PW1 goes to show that the defendants purchased yard from the plaintiff on credit basis under Ex.A1 and Ex.A2 signed by the second defendant. As stated supra, the first defendant is none other than the own brother of second defendant. Ex.A1 and Ex.A2 are the credit bills. Those are not disputed by the defendants which are signed by the second defendant, where under the defendants have purchased the yarn from the plaintiff firm. Ex.A3 goes to show that a legal notice was issued by the plaintiff to the defendants. Ex.A4 is the reply notice to it and Ex.A5 is the plaintiff's firm registration extract in form-A. Ex.A6 is the ledger statement of the plaintiff's firm.

15. To substantiate the case of the defendants, the second defendant himself is examined as DW1, his chief affidavit is nothing but contest taken by the second defendant in the written statement. DW2 is one Annamalai, who is working as manager in Andhra Bank and he was examined by the defendants to prove the Ex.X1 and Ex.X2 cheques.

16. The second defendant i.e., DW1 deposed in his evidence in chief examination that Ex.X1 and Ex.X2 are the carbon copies of the credit bills which were issued in the name of the first defendant and signed by the second defendant for the purchase of yarn. Furthermore, the second appellant pleaded that their father Thyagarajan is dealing with the business of family and used to look after the transactions. Another 6 VGKRJ AS 2256 of 2002

important circumstance to disbelieve the case of the appellants is that they pleaded giving of 2 cheques under original of Ex.X1 and Ex.X2 drawn on Andhra Bank. It is a fact that the plaintiff's firm opened the credit account in the name of Thyagarajan, none other than the father of the defendants. Ex.X1 and Ex.X2 which are marked through DW2 goes to show that those are issued by Byna and sons in the name of Malini Fabrics to which the said Thyagarajan is the sole proprietor and the said cheques were endorsed by him in favour of the plaintiff's firm. The same is supported by DW2. As stated supra, the stock is purchased by the defendants 1 and 2 but not by Thyagarajan under Ex.A1 and Ex.A2. The material on record reveals that Ex.X1 and Ex.X2 cheques were issued by Byna and Sons in the name of Malini Fabrics but not in the name of V.P.K.Textiles. As stated supra, Ex.X1 and Ex.X2 cheques were not issued by the appellants herein. Furthermore Ex.X1 and Ex.X2 cheques are not pleaded by the defendants in the reply notice which is said to have been issued by the appellants under Ex.A4. It is not in dispute that the plaintiff firm filed another suit against the said Thyagarajan i.e., none other than the father of the defendants and another for the amounts due by him under a separate credit accounts. The transactions covered under Ex.A1 and Ex.A2 are only for an amount of Rs.2,23,543/-, whereas the cheques under Ex.X1 and Ex.X2 covered are for Rs.3,13,530/-. If really the appellants contentions are believed what made the appellants to pay the excess amount of Rs.90,000/-, no explanation is offered by the appellants on this context. Furthermore, the amounts covered under Ex.X1 and Ex.X2 are shown in the account books and the parties herein are the income tax assesses. Therefore, the burden is on the appellants to prove the same by producing income tax returns to prove the said plea 7 VGKRJ AS 2256 of 2002

to show that the payments covered under Ex.X1 and Ex.X2 are towards discharge of the suit transaction.

17. As stated supra, the appellants failed to prove Ex.X1 and Ex.X2 transactions are covered in respect of suit transactions. Even assume if really amounts covered under Ex.X1 and Ex.X2 are towards discharge of Ex.A1 and Ex.A2 credit transactions certainly the appellants would have asked to refund of Rs.90,000/- as stated supra. Therefore, the appellants failed to prove the amount covered by Ex.A1 and Ex.A2 transactions were repaid by issuing Ex.X1 and Ex.X2 cheques, the same is not proved. The material on record clearly reveals that the appellants failed to prove the alleged discharge as pleaded by the defendants in the written statement. Therefore, the alleged discharge of suit debt as pleaded by the defendants in the written statement is not at all proved by the appellants. Furthermore, though the plaintiff claimed 18% interest from the date of suit, till the date of retaliation, the learned trial Judge granted 6% p.a. interest from the date of suit till the date of realization.

18. For the foregoing reasons, I do not find any illegality in the decree and judgment passed by the learned trial Judge, therefore, the decree and judgment passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. The point is answered accordingly.

19. In the result, the Appeal Suit is dismissed, by confirming the decree and Judgment dated 31.03.2000, in O.S.No.43 of 1996 passed by the learned Senior Civil Judge, Puttur. Considering the facts and circumstances of the case, I order that each party do bear their own costs.

8 VGKRJ AS 2256 of 2002

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 04.07.2024 sj 9 VGKRJ AS 2256 of 2002

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.2256 OF 2002

Date: 04.07.2024

sj