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Judgment
This appeal is filed against the judgment and decree dated.20.12.2000 passed by the learned VI Senior Civil Judge-cum-Additional Judge, City Civil Court, Hyderabad (for short “trial court”) in O.S.No.629 of 1994, whereby and whereunder the suit filed for recovery of Rs.3,50,000/-was decreed.
The plaintiff filed suit for recovery of Rs.3,50,000/-, but the defendants stated that the amount was already paid and also filed two receipts in support of their contention.
The trial Court after considering the oral and documentary evidence adduced by both sides decreed the suit directing the defendants to pay the Rs.3,50,000/-with interest @12% per annum from the date of suit till the date of decree, and thereafter @ 6% per annum till realization. Aggrieved by the same, this appeal preferred by the defendants in the suit.
The appellants-defendants mainly contended that there is no necessity for them to produce bank statement to prove passing of consideration after Exs.B2 and B3 were admitted by the respondent- plaintiff. They also stated that the onus, to prove that Rs.3,50,000/- was not received, on the respondent-plaintiff under Sections 101 to 103 of the Indian Evidence Act and the respondent-plaintiff failed to establish the same. The payment of Rs.3,50,000/- was made under two cheques dated.31.01.1991 and 30.04.1991 and receipts were also executed by the plaintiff towards full and final settlement. The respondent-plaintiff also admitted his signatures on Exs.B2 and B3, but the trial court shifted the burden upon them erroneously. The receipts issued by the plaintiff is nothing but admission by a party regarding receipt of amount specified in the document, but the trial court did not appreciate the facts properly and thus requested to set aside the impugned judgment.
Heard the arguments on both sides and also perused the record and also the citations filed by both the Counsel.
For the sake of convenience the parties hereinafter be referred as plaintiff and defendants as arrayed before the trial court for the sake of convenience.
The plaintiff and the defendants did partnership business in Civil Contract works till 1991 and later there were some misunderstandings between them, as such the plaintiff agreed to retire from the partnership business after taking due amount. Accordingly, both the parties entered into an agreement on 23.1.1991 in which the plaintiff agreed to retire from partnership after receiving Rs.3,50,000/- in addition to Rs.3,00,000/-already drawn by him. The defendants also agreed to pay the said amount in two equal installments. In spite of several demands made by the plaintiff the defendants did not pay the amount. He got issued legal notice on 20.12.1992 and reply notice was received on 10.01.1993 in which they stated that already they paid the amount in two installments on 31.1.1991 and 30.4.1991. Another notice was given by the plaintiff to furnish copies of receipts but they did not furnish the same on the ground that they are not traceable immediately, as such, the plaintiff issued another notice on 2.12.1993 demanding payment of Rs.3,50,000/- and also filed the suit for recovery the amount.
In the written statement filed by the defendants they admitted regarding the agreement between them dated.21.3.1991, but stated that they have paid Rs.3,50,000/- in two installments vide cheque Nos.0475157 dt.31.1.1991 and 0475158 dt.30.4.1991. They also admitted regarding issuance of legal notice by the plaintiff and also reply notice given by them and further stated that the suit transaction took place at Alwal, as such, the Court has no territorial jurisdiction to entertain the suit and further stated that the plaintiff is not entitled for interest @ 24% per annum, and at the best he is entitled interest for @ 6% per annum.
Before the trial Court, the plaintiff examined himself as PW1 and got marked Exs.A1 to A4. On behalf of the defendants, the 1st defendant was examined as DW1 and got marked Exs.B1 to B3, B2 (a) and B.3 (a).
The trial court after considering the oral and documentary evidence on record decreed the suit.
The points that arises for consideration before the Appellate Court are that:
(1) Whether the plaintiff received amount as per Exs.B2 and B3, if so, whether, the trial court erred in decreeing the suit?
(2) To what relief?
Point No.1 and 2
Whether the plaintiff received amount as per Exs.B2 and B3, if so, whether, the trial court erred in decreeing the suit?
The evidence on record is oath against oath and both of them not examined any other witnesses. The plaintiff in his chief examination stated that the defendants 1 and 2 promised to pay the amount in two equal installments with a gap of three months between two instalments. He further stated that, if at all they issued cheques towards payment, it is for them to show whether the cheques were encashed or not, and they have not filed any document to show regarding encashment of cheques. He also stated that as per the terms of partnership deed he is entitled to 33% of the profits and he along with defendant No.2 have to look after the execution work on the site and also to take care of the expenditure of the work. There were three partners when they sustained loss of Rs.16 lakhs, and each of them intended to contribute Rs.2 Lakhs towards the loss sustained by them, but he did not pay Rs.2 Lakhs as he was not given his share of profit for the last ten years i.e. since 1989 and he expressed his inability to pay Rs.2 Lakhs, as such they entered into an agreement for dissolution of the partnership firm. He expressed his willingness to retire from the partnership business from 1.4.1990. He also stated that on receipt of payment of Rs.3,50,000/- he had no claim whatsoever against defendants 1 and 2 in future. He admitted his signatures on Exs.B2 and B3 but denied the contents. He also stated that there is no stipulation for payment of interest in case of default by defendants 1 and 2 in payment of amount of Rs.3,50,000/-.
The 1st defendant in his evidence, as DW1, stated that he drafted the contents of Exs.B2 and B3 and obtained the signatures of the plaintiff. It was suggested to this witness that the plaintiff was always concerned with the execution works but not with the accounts, as such they obtained signatures of the plaintiff on blank papers and blank cheques, and he denied the same. It was also suggested that they obtained signatures of the plaintiffs on the letter-heads for the purpose of using them for sales tax and income tax purposes and by taking advantage of such signatures Exs.B2 and B3 were fabricated and he denied the same. He also admitted that he had not filed any document to show that the amount shown in the cheques were withdrawn from the Bank. It was also suggested that they have not issued any cheques to the plaintiff and that is why they could not file any proof having issued the cheques, but he denied the same. The trial court observed that though the plaintiff admitted his signatures he denied the contents of the receipts and as such onus of proof shifted to the defendants and it is for the defendants to establish that the cheques issued by them were encashsed, but he has not filed any statement of account to substantiate his version, and moreover cheques were issued in the presence of one K.Kondal Rao and he was not examined by the defendants for the reasons best known them.
The learned Counsel for the appellant relied on a decision in Anil Rishi Vs. Gurbaksh Signh, reported in (2006 ) 5 Supreme Court Cases 558, in which distinction between ‘burden of proof’ and ‘onus of proof’ was clearly dealt with. As per Section 101 of the Evidence Act burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it.
As per Section 102 of the Evidence Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
The learned Counsel for the appellant stated that it is for the defendants to prove their case, but the trial court shifted the burden to the appellant. He also stated that the appellate court can re-examine or re-appreciate the oral and documentary evidence and also can reach to the conclusion which is contrary to one reached by the trial court.
Ex.B1 agreement was entered between the parties on 23.01.1991 in which both the parties agreed for the retirement of the plaintiff on further payment of Rs.3,50,000/- in two installments. It was also specifically mentioned that Rs.1,75,000/- to be paid on or before 31.01.1991 and another Rs.1,75,000/- to be paid on or before 30.04.1991, and on such deposit, the plaintiff clearly stated that he has no claims against the defendants in future. The defendants contended that in pursuance of the said agreement they issued two cheques bearing Nos.0475157 and 0475158 dated.31.1.1991 and 30..4.1991 respectively for Rs.1,75,000/- each towards full and final settlement of business account as per the agreement 23.1.1991 and receipts were passed by the plaintiff in the presence of one Kondal Rao.
The plaintiff has not disputed the signatures on Exs.B2 and B3, but he simply denies the contents of the receipts. Admittedly he studied 12th Form and he can read and write English well and he knows the contents of receipts. Therefore, it cannot be presumed that he signed on the receipts without going through the contents. PW1 in his evidence stated that the amount was agreed to be paid within three months from the date of agreement. Even in Ex.B1 agreement it was specifically mentioned in Clause No.6 regarding payment of the amount and due dates. Cheques were issued as per the terms of agreement. The 1st cheque was issued on 31.1.1991 and the 2nd cheque was issued on 30.04.1991 as per the terms of the agreement. The plaintiff issued notice, vide Ex.A1, to the defendants on 20.12.1992. i.e. 1 year and 11 months after entering into the agreement. In the said notice he has not stated anything regarding non-payment of Rs.3,50,000/- to him. He simply requested to settle the accounts regarding four firms and to arrange his share in the assets and joint properties. In the reply notice dated.10.1.1993, vide Ex.A2, the defendants clearly stated regarding agreement and also the retirement of the plaintiff from 1.4.1990 and payment of Rs.3,50,000/-in two installments in addition to Rs.3,00,000/- and also about issuance of receipts by the plaintiff. The plaintiff again issued notice dt.2.12.1993, vide Ex.A3, in which he contended that, if at all receipts were issued by him, copies of the same should have been enclosed to the reply notice for verification and he further stated that during the subsistence of the joint business the defendants have taken some blank papers from him and they might have forged the said receipts on the blank papers and then requested them to pay Rs.3,50,000/- within two months from the date of receipt of notice. Another notice was was given by the defendants, vide Ex.A4, in which they stated that as the plaintiff retired from the firms with effect from, 1.4.1990 after receiving the amount as per the settlement of accounts and also acknowledged the same that he has no right to demand copy of documents. They denied the allegation of forged receipts on blank papers with the plaintiff’s signatures.
The plaintiff filed the present suit in December, 1993. If at all the defendants have blank papers of the plaintiff with his signatures he should have asked for return of the said documents at the time of entering agreement on 23.1.1991, but he has not made any request for the return of the said blank papers. Even afterwards, only when in the reply notice the defendants stated that the plaintiff received Rs.3,50,000/- in two installments by duly passing receipts he made allegation regarding possessing of blank papers with his signatures and also made allegation of forged receipts. As the plaintiff admitted the signatures on Exs.B2 and B3 it is presumed that he has knowledge of the contents of the said receipts and it is not his case that his signatures were forged on Exs.B2 and B3. The plaintiff never requested the defendants at the time of retirement to return the blank papers with his signatures. Even afterwards he kept quiet for more than two years and came up with this allegation without any basis. The plaintiff in his evidence specifically stated that Rs.3,50,000/- is agreed to be paid within three months from the date of agreement. If at all the amount was not paid within the stipulated duration he should have given legal notice immediately after completion of duration, but he kept quite, though he gave reply notice after 1 year and 11 months, it was not regarding payment of the amount, but it was only regarding the settlement of the accounts. This conduct of the plaintiff clearly shows that he suppressed the facts of receipt of Rs.3,50,000/- made by the defendants and further contended that it is for the defendants to establish that he enchased the cheques issued by the defendants. The trial Court considering his arguments found fault with the defendants and erroneously decreed the suit in favour of the plaintiff. Even as per the evidence of PW1 hecould not pay Rs.2,00,000/- when they sustained loss and also expressed his inability, as such the proposal of retirement was made and he readily agreed for it. As the plaintiff has already withdrawn Rs.3,00,000/- the defendants agreed to pay another Rs.3,50,000/- in two installments and accordingly they paid the said amount within the stipulated duration as per the terms of agreement. Though the plaintiff received the said amount he kept quite nearly for 1 year 11 months and demanded the defendants to furnish the accounts. In the reply notice the defendants stated that as the plaintiff received amounts he has not intended to make any further claims. Then after making further correspondence with the defendants he filed the suit in December, 1993. When it was specifically mentioned in the agreement that Rs.3,50,000/- will be refunded in two installments i.e. first installment on or before 31.1.1991 and second installment on 30.04.1991, if at all the plaintiff has not received the amount why he kept quite from 30.4.1991 to Decmeber, 1993 is not explained anywhere. Therefore, there are no merits in the case of the plaintiff and the judgment of the trial court is liable to be set aside, and, accordingly, is set aside.
In the result, this Appeal is allowed by setting aside the judgment of the trial court passed on O.S.No.629 of 1994 and the suit is dismissed.
Miscellaneous petitions, if any, pending shall stand closed.