Kerala High Court
M/S.Metro Agencies vs M/S.Best Winner Steel Products on 4 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:17963
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
RFA NO. 37 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 10.10.2019 IN OS
NO.38 OF 2018 OF SUB COURT, KOZHIKODE
APPELLANTS/PLAINTIFFS IN O.S:
1 M/S.METRO AGENCIES
A PARTNERSHIP FIRM HAVING ITS OFFICE AT DOOR
NO.3/141, PALACHIRAMADU, POST EDARIKKODE,
MALAPPURAM DISTRICT, PIN-676501, REP. BY ITS
MANAGING PARTNER PARAYIL ASHRAF, AGED 34 YEARS,
S/O.MUHAMMEDKUTTY HAJI, RESIDING AT PARAYIL HOUSE,
PERINTHALMANNA VILLAGE, TIRUR TALUK
2 PARAYIL ASHRAF
AGED 34 YEARS
S/O.MUHAMMEDKUTTY HAJI, RESIDING AT PARAYIL HOUSE,
PERINTHALMANNA VILLAGE, TIRUR TALUK
BY ADV PEEYUS A.KOTTAM
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R.F.A. No.37 of 2020
-: 2 :-
RESPONDENTS/DEFENDANTS 1 TO 7 IN O.S:
1 M/S.BEST WINNER STEEL PRODUCTS
A PARTNERSHIP FIRM REP BY ITS MANAGING
PARTNER, THASLEEQUE, S/O.LATE KUNHAHAMMED
KOYA, 2/921 A, PUTHIYA MALIYEKKAL HOUSE,
ERANJIPALAM.P.O, CALICUT-673006
2 THASLEEQUE, S/O.LATE KUNHAHAMMED KOYA, 2/921
A, PUTHIYA MALIYEKKAL HOUSE, ERANJIPALAM.P.O,
CALICUT-673006
3 K.P.RUKIYA, W/O.LATE KUNHAHAMMED KOYA, 2/921
A, PUTHIYA MALIYEKKAL HOUSE, ERANJIPALAM.P.O,
CALICUT-673006
4 THANUJA, D/O.LATE KUNHAHAMMED KOYA, 2/921 A,
PUTHIYA MALIYEKKAL HOUSE, ERANJIPALAM.P.O,
CALICUT-673006
5 THAHAMEENA, D/O.LATE KUNHAHAMMED KOYA, 2/921
A, PUTHIYA MALIYEKKAL HOUSE, ERANJIPALAM.P.O,
CALICUT-673006
6 THAJEESH MUHAMMED, S/O.LATE KUNHAHAMMED KOYA,
2/921 A, PUTHIYA MALIYEKKAL HOUSE,
ERANJIPALAM.P.O, CALICUT-673006
7 THARISHA, D/O.LATE KUNHAHAMMED KOYA, 2/921 A,
PUTHIYA MALIYEKKAL HOUSE, ERANJIPALAM.P.O,
CALICUT-673006
BY ADVS. SRI.P.M.RAFIQ
T.KRISHNANUNNI (SR.)(K/280/1973)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
04.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.37 of 2020
= = = = = = = = = = = = = = = = = =
Dated this the 4th day of March, 2025
JUDGMENT
Sathish Ninan, J.
Challenging the dismissal of the suit for money,
the plaintiffs are in appeal.
2. The 1st plaintiff is a partnership firm. The 2 nd
plaintiff is its Managing Partner. The 1 st defendant is
also a partnership firm. Defendants 2 and 3 are its
partners. The 3rd defendant is the mother of defendants
2 and 4 to 7.
3. According to the plaintiffs, the 1 st defendant
firm agreed to supply to the plaintiffs GP pipes, in
large quantities. As was required by defendants 1 and 2,
the 1st plaintiff paid an amount of Rs.90,00,000/- to
the 1st defendant on 29.09.2014 and a further amount of
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Rs.10,00,000/- on 09.10.2014 through Bank RTGS. Thus, a
total amount of Rs.1,00,00,000/- (One crore) was paid by
the plaintiffs to the 1st defendant firm, towards supply
of GP pipes. Delivery of the pipes were to be effected
within a period of one month. However, the 1 st defendant
failed to deliver the goods.
4. On negotiations, the defendants agreed to
return the amount not later than 31.03.2015. To secure
the liability, the plaint schedule property was
equitably mortgaged in favour of the plaintiffs by
deposit of title deeds. However, the defendants failed
to repay the amount.
5. Thereupon, on further negotiations, the
defendants agreed to sell the plaint schedule property
in favour of the plaintiffs, for a total consideration
of Rs.1.70 crores. Ext.A1 agreement dated 04.05.2015 was
executed in the said regard. On the date of Ext.A1, a
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further amount of Rs.10,00,000/- was paid to the
defendants towards advance sale consideration, thus
making the total advance at Rs.1,10,00,000/-. The
balance sale consideration was to be paid and the sale
deed got executed on or before 29.06.2015.
6. It is alleged that, subsequently the
defendants requested that the sale agreement may be
revoked and they may be permitted to repay the amount of
Rs.1.10 crores with interest, to which the plaintiffs
agreed. In spite of the same, the amount was not paid.
On these allegations the suit was filed for recovery of
Rs.1.10 crores with interest.
7. The defendants, though admitted that Rs.1
crore was sent to the 1st defendant's account through
RTGS, alleged that the Bank seized the amount and that
they did not receive the same. The plea regarding
creation of mortgage followed by Ext.A1 agreement for
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sale was denied. It was contended that the original
title deeds and the signatures on Ext.A1 agreement were
obtained by threat and coercion. It was also contended
that the suit is barred by limitation.
8. The trial court found that the plaintiffs had
paid Rs.1 crore to the first defendant. The alleged
payment of the further amount of Rs.10,00,000/- under
Ext.A1, was held against. So also, the trial court held
against the mortgage and Ext.A1 agreement. It was also
held that the suit is barred by limitation.
9. We have heard Sri.P.B. Krishnan, the learned
Senior Counsel and Sri.Peeyus A. Kottam, the learned
counsel on behalf of the appellants-plaintiffs, and
Shri.T. Krishnanunni, the learned Senior Counsel for the
respondents-defendants.
10. The points that arise for determination are :-
i) Is the suit barred by limitation?
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ii) Was the trial court justified in its finding that the alleged
mortgage and Ext.A1 agreement for sale are not proved?
11. The suit is laid for realisation of an amount
of Rs.1.10 crores allegedly paid by the plaintiffs to
the defendants. The payment of Rs.1 crore is evidenced
by Exts.A9 and A10 Bank account statements, revealing
transfer of the amounts to the account of the 1st
defendant through RTGS. In Ext.A11 reply notice, the
receipt of such amount in the Bank account is admitted;
however, it was contended that the amount was not
received from the Bank. There is no serious dispute with
regard to the receipt of the said amount of Rs.1 crore.
The said amount was paid in two installments of
Rs.90,00,000/- on 29.09.2014, and of Rs.10,00,000/- on
09.10.2014. Such payments which are evidenced by the
Bank transactions cannot be disputed.
12. The claim of the plaintiffs is that, the
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balance amount of Rs.10,00,000/- was paid on 04.05.2015,
at the time of execution of Ext.A1 agreement for sale.
There is no evidence to prove the payment of
Rs.10,00,000/-. Such payment is claimed to have been
made in cash. The genuineness of Ext.A1 agreement is
under challenge. Ext.A1 narrates that an amount of
Rs.1.10 crores was paid ready cash on the date of the
agreement as advance (ഇന അഡ ൻസ യ 1,10,00000 ക.
(ഒര കക ട പത ലക ഉറ പ ക), 1þmw ]mÀ«n 2þmw പ ർട കയ ട
ററ ക വ ങ ) towards the total sale consideration of
Rs.1.70 crores. However, even the plaintiffs did not
have a case that the amount of Rs.1.10 crores was paid
on the date of Ext.A1. Here it is significant to note
that, the claim/prayer for Rs.1.10 crores could be
maintained only if the plaintiffs lay the suit on Ext.A1
agreement. This is so because, even according to the
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plaintiffs' case, prior to Ext.A1 only an amount of Rs.1
crore was paid.
13. Further it is to be noticed that, the suit
will be within time only if the plaint is founded on
Ext.A1. This is so because, the payment of Rs.1 crore
was on 29.09.2014 and 09.10.2014 and the suit was filed
only on 17.03.2018, which is beyond three years and
barred by limitation.
14. Taking it to be that the suit is for return of
the advance sale consideration under Ext.A1 agreement,
as was noticed supra, Ext.A1 agreement is denied by the
defendants. The recital therein that Rs.1.10 crore was
paid towards advance sale consideration on the date of
Ext.A1 agreement is admittedly incorrect. Ext.A1
agreement is not signed by the 2 nd defendant. Regarding
defendants 3 to 7, what is seen in Ext.A1 are their
thumb impressions and not signatures. There is no case
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that they are illiterate or were unable to sign for some
reason. The explanation attempted to be offered is that,
thumb impression has more sanctity. The defendants
allege that their thumb impressions were obtained by
threat and coercion in the evening of 06.06.2015. The
front page of Ext.A1 agreement reveals that the stamp
paper was issued from the Sub Treasury, Kottakkal on
04.05.2015 and the same was sold by the Vendor only on
07.05.2015. However, Ext.A1 agreement is dated
04.05.2015. The plaintiffs are definite in their
pleadings and evidence that Ext.A1 agreement was
executed on 04.05.2015. We do not think that any further
discussion is necessary to hold against the genuineness
of Ext.A1. Even the learned senior counsel for the
appellants did not venture much to impress upon the
Court the genuineness of Ext.A1. In fact the attempt was
to save the suit dehors Ext.A1.
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15. As noticed supra, if the suit is not on
Ext.A1, it is apparently barred by limitation. To get
over the issue of limitation, the plaintiffs rely on
Ext.A14 agreement allegedly executed between the 2 nd
plaintiff and the 3rd defendant. Ext.A14 acknowledges
the liability of Rs.1 crore of the first defendant firm,
of which defendants 2 and 3 are partners. Ext.A14
assures the repayment of the amount on or before
31.03.2015, and acknowledged the handing over of the
original title deeds of the plaint schedule property as
security. The genuineness of Ext.A14 agreement is
disputed by the defendants. The suit is not on the
alleged mortgage, the creation of which is also disputed
by the defendants.
16. The execution and existence of Ext.A14
agreement is not pleaded in the plaint. The execution
and existence of Ext.A14 agreement is not mentioned even
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in Ext.A2 suit notice dated 16.02.2018. Ext.A14
agreement is not even produced along with the plaint. It
was produced only at the time of evidence. In the chief
affidavit of PW1, it is sworn to that the 3 rd defendant
executed Ext.A14 agreement by affixing her finger print.
However, a perusal of Ext.14 agreement shows that a
signature, purporting to be that of the 3 rd defendant,
is also seen in all the pages of Ext.A14, along with
thumb impression. Even a mere glance at the signatures
of the 3rd defendant, at the various pages of Ext.A14
agreement, does not inspire confidence. Of course, we
have not reached our conclusion upon the same.
17. As noticed by the trial court, there is
contradiction between the evidence of the two witnesses
to Ext.A14, namely, PW2 and DW3, with regard to the
place of execution and also the persons who were present
when the document was executed. According to PW2, the
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3rd defendant had executed Ext.A14 in his presence. PWs1
and 2 deposed that Ext.A14 was executed in the presence
of DW3. But DW3 deposed that the 3 rd defendant had not
signed Ext.A14 in his presence. So also, according to
DW3, he had affixed his signature at his house. However,
according to PWs 1 and 2, Ext.A14 was executed in the
presence of DW3 and that too, at the house of the
defendants. No steps are taken to have an expert opinion
on the signatures and thumb impressions in Ext.A14 with
that of the 3rd defendant. On the above materials, we
are in agreement with the trial court in holding that,
the plaintiffs have failed to prove Ext.A14 agreement.
18. Ext.A14 agreement having been held against,
the other points argued, as to whether under the said
document there has been an acknowledgment of the
liability by a partner of the 1 st defendant firm, and
whether it will bind the other partners, etc., do not
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arise for consideration. The suit could be saved from
the bar of limitation only if Ext.A14 agreement is
upheld and it is held that the liability is acknowledged
thereunder. Ext.A14 having been held against, the suit
is beyond the period of limitation. The trial court was
right in having held so.
19. Thus, the plaint claim is bound to fail. We
concur with the trial Court, in having dismissed the
suit.
The appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
yd
