George vs Kunjachan and Joy

Thomas P. Joseph, J.—This second appeal arises from the judgment and decree of learned Munsiff, Chalakkudy in O.S. No. 418 of 2004 as confirmed by the learned Sub Judge, Irinjalakkuda in A.S. No. 196 of 2006.

O.S. No. 418 of 2004 is a suit filed by the first respondent for recovery of money. Case is that he had joined in a kurry started by M/s. Pullokkaran Chitty Company and was paying the subscription through the appellant who was its collection agent. He paid Rs. 26,567/- in installments to the appellant and necessary entry was made in the passbook given to the first respondent but, later enquiry revealed that appellant misappropriated the said amount without remitting the same to the chitty company. Appellant agreed to repay the amount and executed a demand promissory note (for short, "the DPN") on 17.04.2003 and a cheque dated 17.06.2003 for Rs. 5,000/-. That cheque was dishonoured. First respondent wanted to recover Rs. 26,567/- with interest.

Appellant while admitting that he was the collection agent of M/s. Pullokkaran Chitty Company and that he collected the amount from the first respondent, claimed that he remitted it with the chitty company. He denied that he misappropriated the amount or executed any DPN as claimed by the first respondent. The Chitty company was closed by its foreman. First respondent asked the appellant for a loan of Rs. 5,000/-. As he was short of funds, he gave cheque of Rs. 5,000/- for getting loan from somebody else.

Trial court accepted the case of first respondent and granted decree. First appellate court has confirmed that. Hence this second appeal.

Learned Senior Advocate appearing for the appellant contended that suit is based on Ext. A1 which is not a demand promissory note, the document was marked subject to objection but, trial court has not decided on the objection. According to the learned counsel, Ext. A1 cannot be taken into account, it is not a DPN and if so, the suit based on that document cannot be sustained. It is also contended that there is no evidence to show that appellant misappropriated the amount and going by the evidence of PW1, the contention that appellant misappropriated the amount cannot stand.

I am given a copy of the plaint for perusal. It is seen that in the plaint, the whole transaction which according to the first respondent took place is pleaded. It is stated that appellant agreed to return the sum of Rs. 26,567/- to the first respondent and executed a DPN on 17.04.2003. Paragraph 2 of the plaint refers to the issuance of cheque dated 17.06.2003 for Rs. 5,000/- and its dishonour. It is further stated that in spite of demand, appellant did not pay the amount. In paragraph 3, it is stated that first respondent is entitled to recover the sum of Rs. 26,567/- misappropriated by the appellant. In paragraph 5, it is stated that cause of action for the suit arose on the day demand promissory note was executed and that the cheque issued by the appellant was dishonoured within the local limits of the jurisdiction of the trial court.

The contention is that the suit is based on the demand promissory note and hence it must fail on account of the objection raised. That contention, in my view cannot be accepted for, in paragraph 5 dealing with the cause of action, there is reference to the date of execution of DPN and issuance of the cheque as conferring right of action to the first respondent to sue and a reading of the plaint would show that amount was due to the first respondent and for repayment of that amount, appellant issued the DPN and the cheque. At any rate, going by paragraph 5 of the plaint it is not as if the suit is based on the DPN alone.

This is further clear from paragraph 6(a) of the plaint where it is stated that respondent is entitled to interest on the original consideration. Even if it is assumed that Ext. A1 cannot be taken into account it is not as if first respondent is not entitled to sustain the suit. For, it is admitted by the appellant that he has received Rs. 26,567/- from the first respondent for remittance to the chitty company.

Question is whether the said amount is remitted by the appellant to the chitty company or, it is appropriated by him.

True that when first respondent is examined as PW2 he stated that he does not know whether the amount was remitted to the chitty company or not. Certainly, that is a matter which the appellant has to decide since it was within his knowledge. Exts. A5 and A6 show its first page contained the seal of the company. In other pages there is no seal of the company or signature of the managing partner of the company. The column for signature of manager also remained blank. Ext. A7 series are receipts issued by the appellant to the first respondent. Those receipts are signed by the appellant. It contains seal of the company but, not the signature of managing partner of the company. Ext. B1 is the receipt book produced by the appellant. There also, trial court found that all pages do not contain the signature of managing partner or other responsible person of the company. From the above, trial court found that plea of appellant that he has remitted the entire amount collected, to the chitty company cannot be accepted and accordingly granted a decree in favour of the first respondent. First appellate court has confirmed that finding. On hearing learned Senior Advocate for the appellant, going through the relevant records and the judgments under challenge, I do not find any substantial question of law arising for a decision.

The second appeal is dismissed.