Partly allowed

Jamaludheen Subbair v. Muhammed Salim

Kerala HC14 Nov 2018RSA/119/2009

Case brief

AI extract

What is this about?

A Regular Second Appeal dismissed the decree in a civil suit for recovery of money. The High Court held that the decree was unsafe as the defendant failed to produce a ledger despite an interim order, and the plaintiff failed to plead specific investment dates or extents in the plaint. The appeal was allowed in part, and the matter was remanded. The lower courts erred in relying solely on the non-

What did the court decide?

Decree set aside. Matter remanded to the trial court for fresh disposal. Parties to appear on 27/11/2018.

Jamaludheen Subbair Vs Muhammed Salim — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

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RSA.No. 119 of 2009

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AGAINST THE DECREE/JUDGMENT IN AS 116/2000 of SUB COURT,NEYYATTINKARA DATED 26-06-2008

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AGAINST THE DECREE/JUDGMENT IN OS 1193/1997 of I ADDL.MUNSIFF COURT, NEYYATTINKARA DATED 05-10-1999

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APPELLANT/APPELLANT/DEFENDANT:

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JAMALUDHEEN SUBBAIR

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T.V. HOUSE, A.V.STREET, BALARAMAPURAM P.O., PALLICHALDESOM, PALLICHAL PAKUTHY, NEYYATTINKARA, T.V.M.

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BY ADVS. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.MAHESH ANANDAKUTTAN SRI.R.S.MADHU

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RESPONDENT/RESPONDENT/PLAINTIFF:

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MUHAMMED SALIM, S/O ABDUL AZEEZ LABBA, AYISHA MAHAL, VIZHINJAM PAKUTHY FROM T.V. HOUSE, PALLICHAL DESOM & PAKUTHY, NEYYATTINKARA, T.V.M.

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BY ADV. SRI.G.S.REGHUNATH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 119 of 2009 2

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JUDGMENT

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Aggrieved by the concurrent finding and the decree

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and judgment of both the trial court as well as the first appellate court in O.S. No. 1193 of 1997 of the Additional Munsiff Court, Neyyattinkara and in A.S.No.116 of 2000 of the Sub Court, Neyyattikara, the defendant came up with this second appeal.

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The suit is one for recovery of an amount of Rs.74,000/- with interest at the rate of 18% per annum. According to the plaintiff, he along with his brother in law who is the defendant herein had started a business of Automobile and spare parts on 11/12/1996, for which he had invested an amount of Rs.74,000/- on various occasions on the specific undertaking made by the defendant that it will be returned to the plaintiff with 18% interest as and when demanded. Though, demanded the amount was not returned. Hence, the

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present suit was filed for recovery of the said amount.

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The suit was decreed by the trial court

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mainly on the reason that the demand notice issued by

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the plaintiff demanding return of an amount of Rs.74,000/- with 18% interest was not replied. The

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RSA.No. 119 of 2009 3

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learned Munsiff had also entered into a finding that the signature found affixed in the acknowledgment card (Postal Card) annexed to the demand notice issued is the signature of the defendant.

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In appeal, the learned Sub Judge concurred with the finding of the trial court mainly on the reason that the ledger maintained by the defendant in connection with the business though sought to be produced in I.A.No.4804/1998, it was not complied with and hence adverse inference was drawn and concurred with the decree and judgment of the trial court.

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Aggrieved by the said decree and judgment, the defendant came up with this second appeal.

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Altogether four witnesses were examined by the plaintiff as PW1 to PW4. The defendant mounted the box and had given evidence as DW1, denying and disputing the claim. The oral evidence tendered by PW2,PW3 and PW4 did not speak anything about the investment of an amount of Rs.74,000/- or the like by the plaintiff in the business. PW2 deposed with respect to a mediation

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conducted by which the defendant had agreed to surrender the business and the shop room to the plaintiff and to hand over the key but subsequently it

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RSA.No. 119 of 2009 4

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was denied. PW3 was examined in order to prove Ext.A5 and A4. A5 is the extract of a counter foil pertaining

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to purchase of an article for the business for an amount of Rs.1,200/-. A4 is the extract of the receipt. The learned Sub Judge found that the defendant has not explained how these two receipts A4 and A5 came into possession of the plaintiff and by taking adverse inference regarding non submission of

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the ledger, it was found that the plaintiff has established the claim for Rs. 74,000/- with interest. PW4 is the Panchayat Secretary who was examined only for the purpose of production of certain documents pertaining to the marriage in between the plaintiff and defendant's sister. In short, none of the witnesses examined by the plaintiff, PW2 to PW4, mentioned anything with respect to the investment of an amount of Rs.74,000/- by the plaintiff on various occasions. In

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the plaint nothing was pleaded by the plaintiff on which dates various amounts were invested and the extent of amount invested at various occasions also was not specified and pleaded anywhere in the plaint. But

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during the course of examination of PW1, he had

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admitted that he had produced a photocopy of the ledger

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RSA.No. 119 of 2009 5

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kept in the due course of the business conducted by them. But it is not seen accepted in evidence and not marked separately. Going by the order passed in I.A. NO.4804/1998, an application for production of the ledger and the non production of the same by the defendant would assume importance at this juncture and when the photocopy of the ledger is tendered in evidence the trial court ought to hav e accepted the same in the light of non compliance of the order passed in the aforesaid I.A.4804/1998. It is made clear that it is not at all safe on the part of either the trial court or the first appellate court to decree the claim of plaintiff without ascertaining the actual amount due, simply on the reason that a reply was not sent to the demand notice, or for the reason that the ledger kept in the due course of the business was not produced by the defendant, since there is no specific pleading in the plaint regarding the extent of various amount invested from various occasions. There is no pleading in the plaint with respect to the maintenance of a ledger and the entry of the various amounts in the said ledger. But the legal position would be different when there is disobedience to produce the ledger as ordered

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RSA.No. 119 of 2009 6

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in I.A.No.4804/1998 and when a copy of the ledger was produced by the party concerned. The production of a photocopy of the ledger was not considered either by the trial court or by the first appellate court. Hence, the matter has to go back to the trial court for consideration of the above said document.

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The appeal allowed in part. Decree and judgment of both the trial court as well as the first appellate court is hereby set aside for that purpose. Matter is remanded back to the trial court for fresh disposal in accordance with the law in force. Parties shall appear before the trial court on 27/11/2018.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE

Jamaludheen Subbair v. Muhammed Salim

Case brief

What is this about?

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Jamaludheen Subbair v. Muhammed Salim

Case brief

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