Ammaiyappan vs Thangamalai Thangamalai Vs Ammaiyappan

Honourable Mr. Justice P. Devadass

The defendant in O.S.No.188 of 2000, in the Court of Subordinate Judge, Srivilliputtur is the appellant. Defendant and plaintiff are brotheRs.

They are in textile business. Between them, there was supply of textiles on credit basis. Plaintiff maintained ledger accounts entering the credit sales

and also the payments. According to plaintiff, as per Ledger Accounts (Exs.A.1, A.5 to A.8) in the transaction running between 01.06.1995 to

26.08.1997, defendant is liable to pay him Rs. 1,22,854.05, after adjusting Rs. 50,000/- by his brother making over a decree debt. Still he has to

pay him Rs. 1,22,854.05. As agreed, in the Panchayat, under (Ex.A.2 Muchalika) dated 14.02.1999, defendant had not paid him Rs. 50,000/- in

two equal instalments. In the circumstances, plaintiff issued him Ex.A.3 notice dated 10.04.2000. It was received by him under Ex.A.4 postal

acknowledgment. But, he did not pay. So, the suit to recover the said amount with 12% interest p.a.

However, defendant resisted the suit by filing a written statement, wherein he had admitted on 14.02.1999, in the panchayat, his liability to pay

was arrived at Rs. 50,000/-. On 30.07.1999, the said Rs. 50,000/- was adjusted by making over a decree debt under Ex.B.1 in favour of plaintiff.

Thereafter, there is no due.

During the trial, plaintiff Thangamalai examined himself as P.W.1, Panchayathar Muthuperumal as P.W.2 and marked Exs.A.1 to A.9, while

defendant Ammaiyappan examined himself as D.W.1 and marked Ex.B.1.

Appreciating the above evidence, the trial Court construing Ex.A.2 Muchalika, came to the conclusion that the discharge of Rs. 50,000/- under

Ex.B.1 was for a different transaction and still the defendant has to pay him Rs. 50,000/- and on 26.08.1997, defendant had paid him Rs. 5,000/-,

so the suit is in time and thus decreed the suit partly for Rs. 50,000/- with 6% future interest p.a. and with pro-costs.

The appellate Court/Principal District Court, Virudhunagar District at Srivilliputhur dismissed the defendant''s appeal in A.S.No.108 of 2004.

As against these concurrent findings, the defendant had filed this second appeal.

At the time of admitting this second appeal, this Court formulated the following substantial questions of law for consideration:

(i) Whether the Courts below are correct in decreeing the suit for a sum of Rs. 50,000/- on the foot of the statement of accounts Ex.A.1 by going

back, when the entire dealings of transactions were settled and reduced into writing as per Ex.A.2, Agreement dated 14.02.1999 and when the

plaintiff is estopped from his own conduct from going back to Ex.A.1, statement of accounts when Ex.A.2, agreement was born on 14.02.1999

and the plaintiff cannot sue on the doctrine of estoppel by conduct?

(ii) Whether the Courts below are right in decreeing the suit by considering the credit entry of Rs. 5,000/- dated 26.08.1997 reflected in Ex.A.1

and Ex.A.6 as if paid by the defendant and not proved by the plaintiff and which entry is the self-serving one invented by the plaintiff, when the

whole suit claim is barred by limitation?

The learned counsel for the appellant contended that as per Ex.A.2, the total liability was arrived at Rs. 50,000/-, it was satisfied by assigning a

mortgage debt in favour of the plaintiff under defendant''s Ex.B.1 assignment deed. Further, the last transaction was in the year 1997, but the suit

was filed in the year 2000. So, it is barred by limitation.

On the other hand, the learned counsel for the respondent contended that Ex.A.2 is in two clauses. First clause, deals with assignment of

mortgage debt, that was done under Ex.B.1, while the second clause deals with payment of Rs. 50,000/- in two equal instalments in full quit,

however, that was not paid. So, both are different. Ex.A.2 is dated 14.02.1999. The suit has been filed on 07.07.2000. So, the suit is in time. The

defendant cannot deny Ex.A.2 for one purpose and rely it for limitation purpose. He cannot be allowed to approbate and reprobate. In his

evidence, D.W.1 had also admitted his liability to pay Rs. 50,000/-. Both the Courts took the correct view. In the circumstances, no interference is

called for.

Ex.A.2 evidences prior transaction as between the plaintiff and defendant in the matter of supply of textiles and on 14.02.1999, the amounts

payable to the plaintiff were amicably settled in the presence of panchayatha Rs.

It becomes relevant to note the following two clauses in Ex.A.2. It runs as under:

First clause deals with assignment of mortgage debt. Second clause shows that as on that date the transaction between both were struck and in

full quit plaintiff had agreed to receive Rs. 50,000/- in equal instalments. P.W.2, one of the panchayathar, who has also signed in Ex.A.2 had

detailed about the panchayat and stated that the assignment of decree and payment of Rs. 50,000/-are different.

Thus, both the clauses in Ex.A.2 are independent. They are not interdependent. They are different. They are not one and the same.

In pursuance of clause 1, in Ex.A.2, under Ex.B.1 assignment deed dated 30.07.1999, the mortgage decree debt in favour of defendant has

been assigned by him to the plaintiff.

Although as per ledger accounts defendant is liable to pay him more, under clause 2, plaintiff had agreed to receive Rs. 50,000/- in full quit.

D.W.1 had admitted that as agreed in Ex.A.2, he did not pay the instalments. Ex.A.3 lawyer notice remain unreplied. Above all, in his cross-

examination, D.W.1 himself admits his liability to pay him Rs. 50,000/- under Ex.A.2 and also submitted to decree. Thus, the defendant is bound

to pay the plaintiff Rs. 50,000/-.

On 14.02.1999, under Ex.A.2 Rs. 50,000/- has been agreed to be paid to the plaintiff. Thereafter, on 07.07.2000, the suit has been filed. So,

it is in time.

In the circumstances, both the Courts have rendered their findings correctly. This Court concur with their findings. In the circumstances, the

substantial questions of law are answered against the appellant. In the result, the Second Appeal is dismissed, confirming the decrees and

judgments of the trial Court/Sub Court, Srivilliputhur in O.S.No.188 of 2000 and the first appellate Court/Principal District Court at Virudhunagar

District, Srivilliputtur in A.S.No.108 of 2004. Consequently, connected M.P.(MD) No.1 of 2006 is dismissed.