Partly allowed

S. Sijatha Laxmi, v. B. Sumathi Devi

Telangana HC18 Apr 2013AS/1030/1998

Case brief

AI extract

What is this about?

This appeal challenged a decree for partnership dissolution settlement. The appellant claimed discharge of the debt via payments to the plaintiff's husband evidenced by daybook entries and oral testimony, which this court rejected due to lack of plaintiff's signature and authenticity. The court modified the decree, allowing it with reduced interest rates (12% then 6%) instead of the lower court's

What did the court decide?

The appeal allowed with modification; suit decreed for principal Rs.18,237.59 with interest at 12% from due date and 6% thereafter; appellant's plea of debt discharge rejected.

S. Sijatha Laxmi, Vs B. Sumathi Devi — Specific Performance | Telangana HC (2013)

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THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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APPEAL SUIT No.1030 OF 1998

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JUDGMENT:

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The defendant in O.S.No.2 of 1985 on the file of the Court of Senior Civil Judge at Khammam, is the appellant herein.

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2. The suit was filed for recovery of a sum of Rs.36,351.50 ps.

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3. The allegations in the plaint go to show that the plaintiff and defendant, who are sisters-in-law, are the partners of a firm by name M/s. Sree Dhanalaxmi Traders and the firm was dissolved on 31.03.1982 and in the settlement, the plaintiff was found entitled to a tune of Rs.49,510.19 ps and the defendant has agreed to pay the same with interest at 18% in three half yearly instalments from the date of dissolution i.e., 31.03.1982. The defendant has paid a sum of Rs.30,000/- and the balance amount was not paid. The plaintiff has issued a notice claiming a sum of Rs.19,510.19 ps, but the amount was not paid. Therefore, the suit was filed for recovery of the amount of Rs.19,510.19 ps with interest at 18% and 24% per annum.

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4. The defendant filed a written statement contending that there was never any practice of issuing receipts. The defendant has pleaded the discharge of the amounts as under:

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i) Amount paid towards LIC Premium Of the plaintiff on 20.07.1982 Rs.426.00 ii) Amount paid towards LIC Premium Of the plaintiff on 10.03.1983 Rs. 423.00 iii) Amount paid towards LIC Premium

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Of the plaintiff on 08.02.1984 Rs. 423.00
iv)Amount paid to the husband of the Plaintiff Bijjala Laxmana Murthy on the oral request of the plaintiff on 13.09.1983 Rs.10,000.00
v)Amount paid to the husband of the Plaintiff Bijjala Laxmana Murthy on the oral request of the plaintiff on 23.03.1984
Rs. 6,000.00
vi)Share of expenses incurred for Recovery of debt from K.Krishnamurthy By filing O.S.No.142 of 1983 in
Sub Court, Khammam. Rs. 1,330.00
vii)Share of expenses incurred for Recovery of debt from K.Krishnamurthy By filing O.S.No.142 of 1983 Towards Advocate fee etc., Rs. 330.00
viii)Amount paid towards the loan instalment Of the husband of the plaintiff in connection With loan obtained for his business Laxmi Fertilizers, Khammam from SBH on 21.11.1983 Rs. 1,000.00
ix)Amount paid towards the loan instalment Of the husband of the plaintiff in connection With loan obtained for his business Laxmi Fertilizers, Khammam from SBH on
22.09.1984 Rs. 500.00 -------------------
-- Total: Rs.20,433.40
Therefore, according to the defendant, no amount is due.

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5. On the basis of the above pleadings, necessary issues

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have been framed. After considering the evidence of PW.1 and Exs.A.1 to A.3 and also the evidence of DWs.1 to 3 and Exs.B.1 to B.31, the Court below has accepted the plea of the defendant only for deduction of Rs.4,000/- premium and did not accept the plea of other payments and consequently decreed the suit. Aggrieved by the said judgment, the present appeal is filed.

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6. The points that arise for consideration are:

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1) Whether the appellant has discharged the entire debt due to the plaintiff?

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2) Whether the judgment and decree passed by the Court below is legal and sustainable?

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7. POINTS:

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So far as the factum of the plaintiff and the defendant doing business in the name of M/s. Dhanalaxmi Traders and dissolution of the same is not disputed. So also the liability undertaken by the defendant to pay a sum of Rs.49,510.19 ps is also not in dispute. When a plea of discharge has been taken, evidently the burden is on the defendant to prove the same. The Court below after considering Exs.B.1 to B.5 has deducted the amount from the suit claim. But, however, there are two payments under Exs.B.12 and B.13, which are said to be dated 13.09.1983 and 23.03.1984 to a tune of Rs.10,000/- and Rs.6,000/- respectively, which is said to have been paid to the husband of the plaintiff. The defendant has relied upon the day book entries Exs.B.9 to B.11 and also the evidence of DWs.2 and 3 to prove the said payments. According to the learned counsel for the appellant when Exs.B.1 to B.5 are believed, there is no reason to discard the Exs.B.12 and B.13

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entries. Evidently, Exs.B.1 to B.5 are the receipts issued by the LIC and therefore, they evidence payment of money on behalf of the plaintiff, which was not seriously disputed. But, whereas the payments under Exs.B.12 and B.13 are only the entries made in the account book of the defendant, which have been maintained by the firm and by the employees of the defendant. If really the amounts were paid after the dissolution, there is no reason as to why even the signature of the husband of the plaintiff was not taken even if it is to be taken as a valid discharge of the liability. In fact, the account books were maintained by the defendant and the Court below was not inclined to accept the same. When the account books themselves do not reflect the authenticity of the payment, the oral evidence of DWs.2 and 3 cannot be taken into consideration and the contention of the learned counsel for the appellant that the said evidence has not been properly considered cannot be sustained. Therefore, in view of the above circumstances, the plea of the payments under Ex.B.12 and B.13 does not appear to be true and at any rate there is no acceptable evidence to hold that the plaintiff has authorized her husband to receive the said amounts to give a valid discharge to the defendant. Therefore, the Court below has rightly rejected the claim.

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8. So far as the legal expenses are concerned, evidently the suit has been decreed and the amounts can be recovered with costs as per the decree and therefore, the contribution sought from the plaintiff also cannot be accepted.

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9. Evidently, as can be seen from the calculations made by

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the plaintiff, the interest was claimed at 18% per annum and also at 24% per annum. As can be seen from the decree of the Court below the decree was passed for principal amount of Rs.18,237.59 ps., with interest at 18% per annum from 01.11.1982 till the date of filing of the suit and also from the date of decree till the date of realization, and arrived at the figure of Rs.30,475.22 ps. Even the subsequent interest was granted at 18% per annum. The Court below has not granted the interest during the pendency of the suit under issue No.2. But, however, the final result under issue No.3 shows that interest was granted at 18% from the date of suit till the date of realization. Evidently, granting of the interest at 18% after the decree without any special reasons is not correct. The amount due to the plaintiff was only towards the settlement of the partnership claims though special reasons were granted by the Court below to grant subsequent interest from the date of decree at 18%. Therefore, in view of the above circumstances, I feel the ends of justice would meet if the suit of the plaintiff is decreed with interest at 12% on Rs.18,237.59 ps., from 01.11.1982 till the date of decree and with subsequent interest at 6% till the date of realization.

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10. With the above modification, the Appeal Suit is allowed in part. The parties are directed to bear their own costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

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_______________________________ JUSTICE N.R.L. NAGESWARA RAO

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Date: 18.04.2013 INL

S. Sijatha Laxmi, v. B. Sumathi Devi

Case brief

What is this about?

What did the court decide?

S. Sijatha Laxmi, v. B. Sumathi Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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