Kerala High Court
Mohanan.E.K vs M/S.Mayuram Chitties & General Finance ... on 31 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
CO.APPEAL NO. 2 OF 2014
AGAINST THE JUDGMENT DATED 15.01.2014 IN CC NO.600 OF
2008 IN CP NO.34 & 53 OF 2002 OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT :
MOHANAN E.K.,
S/O.KOCHAPPAN, AGED 53 YEARS,
ERACHAN HOUSE,
P.O THALIKKULA, THRISSUR.
BY ADVS.
SRI.C.A.CHACKO
SMT.C.M.CHARISMA
RESPONDENT/CLAIMANT :
M/S.MAYURAM CHITTIES & GENERAL FINANCE (P) LTD.
(IN PROVISIONAL LIQUIDATION)
REPRESENTED BY THE OFFICIAL LIQUIDATOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.K.MONI
THIS COMPANY APPEAL HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Company Appeal No.2 of 2014
2
JUDGMENT
A.Muhamed Mustaque, J.
This company appeal was preferred by the
respondent in C.C.No.600 of 2008. The company claim made
by the Official Liquidator demanding a sum of Rs.1,11,350/-
from the respondent was allowed together with 12% interest
with effect from 11.02.2001. Aggrieved by this judgment, this
company appeal is preferred.
2. Heard the learned counsel for the appellant the
learned counsel for the Official Liquidator.
3. Brief facts of the case are as follows;
The respondent was a subscriber to kuri conducted
by company liquidation namely M/s.Mayuram Chitties &
Finance (P) Limited. The total Sala of the kuri was
Rs.4,50,000/-. The number of instalment was 60 at a rate of
Rs.7,500/- per month. Admittedly, the respondent paid 42
installments. The company claim was made on the ground
that he bid the kuri and defaulted payment of 18 installments.
The respondent refuted the company claim on the ground that
he had not bid the kuri and therefore, he was not liable to pay
the balance 18 installments. According to him, he is entitled to
get the amount paid in 42 installments.
4. Before the Company Court, Exts.A1 and A2
were marked. The son of the former Managing Director of the
Company was examined as CW1. Ext.A1 is the ledger related
to kuri. Ext.A1 shows that kuri was auctioned on 25.09.1999.
The respondent has a case that he had not bid the amount.
Ext.A1 ledger only reflects that this was bid on 25.09.1999. If
the appellant subscribed and bid the amount, necessarily it
could have been only paid through the cheque as the Sala of
the kuri itself is around Rs.4,50,000/-. This could have been
easily proved by summoning documents from the bank
encashing the cheque. In what manner the amount was paid
is not clear. The Company Court finding that, since the
appellant had not preferred a company claim to Official
Liquidator claiming for the amount he paid by way of 42
instalments, it has to be presumed that he had the bid
amount. These are all matters could have been easily proved
by documents. The primary document is the mode in which
the payment was effected. The payment can be made only
through a cheque as the sala of the kuri is Rs.4,50,000/-, it
may be less than that amount. But anyway, such huge amount
cannot be paid in cash and nobody has a case that it was paid
in cash. In the absence of any primary evidence and also in
the absence of any attempt to procure evidence, merely based
on inaction on the part of the appellant not claiming for the
amount he paid as installments, it cannot result in adverse
presumption against him. Absolutely, it is to be noted that no
evidence was adduced in this matter to prove the company
claim. In such circumstances, we have to allow this appeal.
The Company appeal stands disposed of and the
impugned judgment is set aside.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
S.MANU, JUDGE
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