V.D. Thyagarajan vs V.K. Subramanyam Brothers
2024 Latest Caselaw 5087 AP

Andhra Pradesh High Court - Amravati

V.D. Thyagarajan vs V.K. Subramanyam Brothers on 4 July, 2024

APHC010399322002
                   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: 1972/2002

Between:

   1. V.D. THYAGARAJAN, S/O DESEPPA MUDALLY BUSINESS 4/72,
      S.V. KOLL STREET, EKAMBARAKUPPAM, NAGARI MANDAL,

   2. V.T. SATEESH, S/O V.D. THYAGARAJAN 4/72, S.V. KOLL
      STREET, EKAMBARAKUPPAM, NAGARI MANDAL,

                                                    ...APPELLANT(S)

                                  AND

   1. V.K.SUBRAMANYAM BROTHERS, rep. by Partners V.K. Mohan
      Sunderam Business 7/33, Main Road, Ekambarakuppam, Nagari
      Mandal,

                                                    ...RESPONDENT

Counsel for the Appellant(S):

   1. METTA CHENDRA SEKHAR RAO

The Court made the following:
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                                                                 AS 1972 of 2002




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.46 of 1996 passed 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 katha.

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.46 of 1996, are as under:

The plaintiff is a registered firm and carrying on business in yarn trade. The second defendant is the undivided son of the first defendant and both of them are members of Hindu joint family. Defendants have purchased yarn from the plaintiff's firm on credit basis during the period from 18.05.1995 to 22.08.1996 and an account was opened in the name of the first defendant after giving credit to the payments made by the defendants, the defendants are still due of Rs.88,070.50 paise as on 22.08.1996. Defendants are liable to pay the interest at 24% p.a. on the principal amount as per the clause in the credit bills but only 18% p.a. interest is claimed which is prevailing in the commercial transactions.

Inspite of demand notice dated 30.09.1996, the defendants failed to pay the amount due, hence the plaintiff's firm is constrained to file the suit.

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

The first defendant and his son Nethaji were having credit transactions with the plaintiff's firm, but not the second defendant herein. The plaintiff is not a registered firm and it has no legal entity to file the suit. The first defendant and his son Nethaji have made several payments by cash and cheque amounting of Rs.25,20,081/- to the plaintiff and other sister concerned. Since they made payments commonly for the yarn purchase, they do not know whether adjusted the payments and given credits either to the account of plaintiff's firm or another one. The partners of the plaintiff's firm are own brothers and they have filed as many as five suits including this one, whereas the payment made by them is an excess amount of Rs.14,56,587.50 paise which is liable to be refunded to them by the plaintiff.

ii) The first defendant alone was dealing business transactions with the plaintiff's firm, second defendant had put his signature on the credit bills for the yarn supplied to the first defendant at the instance of plaintiff.

First defendant issued cheque bearing No.636130 for Rs.80,000/- dated 25.08.1995 drawn on I.O.B.Madras branch and another cheque bearing No.592151 for Rs.1,00,000/- dated 16.01.1995 drawn on Andhra Bank, Washermanpet branch and thereby they paid excess amount, which is liable to be refunded by the plaintiff's firm.

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

(i) Whether the defendants are not liable to the suit amount?

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(ii) 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.A15 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.B1 was 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, decreeing the suit and the decree and judgment passed by the learned trial Judge is not sustainable and 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?

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12. Point:

The case of the plaintiff is that the plaintiff is a registered firm and carrying on business in yarn trade and the second defendant is the undivided son of first defendant and both of them are members of Hindu joint family. The plaintiff further pleaded that the defendants purchased the stock from the plaintiff's firm on credit basis during the period from 18.05.1995 to 22.08.1996 and the account was also opened in the name of the first defendant after giving credit to the payments made by the defendants and the account opened by the defendants shows that they are still due of Rs.88,070,50 paise as on 22.08.1996 and the defendants are liable to pay the interest at 24% on principal amount as per the clause in the credit bills, but only 18% interest is claimed.

13. The admitted facts of both the parties are the defendants purchased yarn from the plaintiff's firm on credit basis. The contention made by the defendants is that they have discharged the total amount to the plaintiff. The defendants contend that they made payment of Rs.80,000/- by way of cheque and Rs.10,000/- by way of cash on 25.08.1995. Here it is relevant to say as per the case of the plaintiff the defendants have to discharge the due amount of Rs.88,070.50 paise as on 22.08.1996.

14. The defendants admitted about the purchase of yarn under Ex.A1 to Ex.A9 credit bills. Ex.A1 to Ex.A9 support the case of the plaintiff. But the defendants pleaded that they paid entire amount to the plaintiff. Since the appellants/defendants pleaded the discharge of entire amount to the plaintiff, the duty cast on the defendants to prove the alleged discharge. To substantiate the case of the defendants, the first defendant is examined as DW1. It is in the evidence of DW1 he purchased the yarn 6 VGKRJ AS 1972 of 2002

from the plaintiff's firm under Ex.A1 to Ex.A9 credit bills. The total amount covered by the credit bills under Ex.A1 to Ex.A9 is Rs.8,32,297.50 paise, the same is admitted by the first defendant as DW1 in his evidence in cross examination itself, furthermore, there is a clear admission made by the defendant No.1 i.e., DW1 in his cross examination that he paid an amount of Rs.7,44,227/- by way of cash as well as the cheques under Ex.A10 which are the receipts for the payment made by him. The first appellant is none other than the father of the second appellant. DW1 further deposed that he also gave another cheque for Rs.1,00,000/- dated 16.01.1995 drawn on Andhra Bank. If really, the said version is believed, the defendants have to sought for refund of Rs.1,00,000/- excess amount made by them other than the amount payable under Ex.A1 to Ex.A9.

15. The evidence of DW1 clearly goes to show that it is a practice in between both the parties to the suit that whenever the defendants used to purchase the stock on credit basis and later the defendants used to repay the same and used to obtain the receipts, but in the case on hand the appellants failed to file the relevant documentary proof to show that they discharged the entire amount to the plaintiff, apart from the Ex.B1 Xerox copy of the cheque for of Rs.80,000/- dated 25.08.1995. Another witness by name Balachandran is examined as DW2. The evidence of DW2 goes to show about the alleged payment of Rs.80,000/- to PW1 under Ex.B1 and the same was credited into the account of V.P.K.Textiles along with Rs.10,000/- paid in cash on 25.08.1995. Here the V.P.K.Textiles is not the plaintiff in the suit on hand. The evidence of PW1 coupled with ledger copy of textiles, which is filed by the plaintiff in another suit in O.S.No.47 of 1996 goes to show that the said amount was credited into the account of V.P.K.Textiles but not to the plaintiff in the case on hand. Furthermore, the defendant in the said suit in O.S.No.47 of 1996 is none other than the 7 VGKRJ AS 1972 of 2002

son of the first appellant herein. The material on record reveals that the present plaintiff's firm and V.P.K.Textiles filed altogether five suits vide O.S.No.43 of 1996, O.S.No.44 of 1996, O.S.No.45 of 1996, O.S.No.46 of 1996 and O.S.No.47 of 1996 before the Senior Civil Judge's Court, Puttur.

16. The material on record clearly goes to show that the aforesaid suit OS.No.47 of 1996 is tried along with this suit by the learned Senior Civil Judge, Puttur. Furthermore, the evidence on record clearly goes to show that amount under Ex.B1 cheque reflected in the Statement of account of V.P.K.Textiles, the same is supported by Ex.A15 ledger extract. The first defendant in his evidence admitted about the purchase of yarn from the plaintiff's firm under Ex.A1 to Ex.A9 credit bills but failed to prove the 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.

17. 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.

18. In the result, the Appeal Suit is dismissed, by confirming the decree and Judgment dated 31.03.2000, in O.S.No.46 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.

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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 1972 of 2002

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.1972 OF 2002

Date: 04.07.2024

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