THE HON’BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.46 OF 2006 JUDGMENT: This appeal, under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 07.11.2005, in O.S.No.53 of 2002, on the file of III Senior Civil Judge, City Civil Court, Secunderabad, whereunder and whereby, the suit filed for recovery of Rs.6,02,000/-, was decreed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The plaintiff and defendants were partners of a firm named and styled as ‘M/s. Multitech Test House’. On 27.01.1996, a partnership concern under a deed of partnership was executed between the plaintiff and the defendants. While the matter stood thus, defendant Nos.2 to 4 with malafide intention to gain unlawfully pressurized the plaintiff to retire from the partnership and high handedly decided to remove the plaintiff from the partnership. They settled plaintiff’s account at Rs.4,41,000/- and executed an agreement on 29.12.1998 between them. As per the said agreement, the defendants issued a cheque, dated 30.12.1998, for Rs.91,000/- and for the residue towards the share of the plaintiff, the defendants issued four cheques viz., (1) Cheque No.090007, dated 16.01.1999 for an amount of Rs.50,000/- (2) Cheque No.090008, dated 30.01.1999 for an amount of Rs.1,00,000/- (3) Cheque No.090009, dated 15.03.1999 for an amount of Rs.1,00,000/- and (4) Cheque No.090010, dated 15.04.1999 for an amount of Rs.1,00,000/-. The plaintiff enchased the cheque issued by the defendants for Rs.91,000/- and when the plaintiff tried to encash the four cheques, he found that there was no amount in the account. Immediately, when the plaintiff found that no amount was available for the cheque dated 16.01.1999, he contacted defendant No.2 and informed him about the non-availability of funds in the account. After the intimation, the defendants changed their mind, developed malafide intention and to cheat the plaintiff for unlawful gains, issued a legal notice dated 19.01.1999 with all false allegations. Thereafter, having given repeated legal notices, counter legal notices and reply notices, on 17.03.1999, the defendants issued a public notice that the plaintiff was ceased to be one of the partners of the firm with effect from 17.03.1999 and immediately, the plaintiff submitted the objections before the Registrar of Firms on 13.12.1999 for the notice of Registrar of Firms dated 18.11.1999. The defendants have not paid the amount as agreed as per agreement dated 29.12.1998 and the plaintiff issued a legal notice dated 05.12.2001 calling upon the defendants to pay the said amount with interest, for rendition of accounts etc. Hence, the suit. 3. In the written statement filed by the defendants, it is stated that since the inception of the plaintiff in the firm, he picked-up quarrels and started interfering with the smooth running of the business. Due to the proximity of the relationship and taking advantage of he being elder brother to defendant No.2 herein, he behaved in high handedness; neglected to look after the business and work for its prosperity and became an obstacle to its growth. At the request of the plaintiff, defendant Nos.1 to 4 agreed to permit the plaintiff to retire and relieve him from the said partnership firm and in turn, the firm has resolved to pay all the dues due to the plaintiff. The accounts were settled at the instance of the plaintiff and after verification of the books of account by the Auditor, the balance amount due to the credit of the plaintiff as on 30.12.1998 was Rs.90,937.90 ps. and to round off the said amount was paid to the plaintiff by way of cheque, which was encashed by the plaintiff. With regard to the four cheques mentioned by the plaintiff, they are post-dated to 16.01.1999, 30.01.1999, 15.03.1999 and 15.04.1999 in all totaling up to Rs.3,50,000/-. The said cheques mentioned by the plaintiff in fact are ‘SELF’ drawn cheques meant for the use of the firm alone, and not to any individual for his settlement. In fact, those cheques were kept in the office file of the firm and while settling the accounts, on 31.12.1998, without the knowledge of anyone, the plaintiff surreptitiously pilfered the cheques and committed serious misconduct. On account of his serious misconduct, on 17.03.1999, the plaintiff was expelled from the firm M/s. Multi Tech Test House, and the same was published in the newspaper and the plaintiff ceased to be a partner in the Firm from 30.12.1998 onwards. When the firm found that the said four cheques were missing from the office files, by way of abundant caution, the defendants instructed the Bank to stop payment against the said four cheques. The plaintiff has accepted the amount of Rs.91,000/- towards full and final settlement and the plaintiff is not entitled for any amount as claimed. No amount is due to the plaintiff much less the suit amount and the question of paying any interest thereon does not arise. The suit is not maintainable as there is an Arbitration clause in the registered partnership deed. Hence, the suit is liable to be dismissed. 4. Basing on the above pleadings, the following issues were framed for trial: “1. Whether the suit is not maintainable in view of the Arbitration Clause No.17 in the partnership deed dated 27.01.1996? 2. Whether the plaintiff is entitled for the suit claim? 3. To what relief?” 5. During trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A12 were got marked, and on behalf of the defendants, no evidence either oral or documentary was adduced. 6. Learned counsel for the appellants/defendants contended that for dishonor of cheques, the respondent/plaintiff filed a criminal case and that was dismissed; that there was no need to pay an amount of Rs.3,50,000/- on the self drawn cheques; that proper and reasonable opportunity was not given to the appellants to adduce necessary evidence in the trial Court and hence, he prays to set aside the impugned judgment. 7. Ex.A7 - Agreement, dated 29.12.1998, which is not denied and disputed, would clearly go to show that the dispute was already settled between the parties. So, the appellants are bound by the terms of settlement under Ex.A7. PW.1 has categorically stated that the appellants pressurized him to retire from the partnership and settled his account at Rs.4,41,000/- towards full and final settlement and in pursuance thereon, the appellants issued a cheque dated 30.12.1998 for Rs.91,000/- and for the remaining amount, they issued four post dated cheques viz., Exs.A8 to A11. When the respondent presented the same in the Bank, they were dishonoured. So, once Ex.A7 is not denied or disputed, it is clear that in pursuance of agreement of understanding under Ex.A7, the appellants have undertook to pay Rs.4,41,000/- to the respondent and out of the said amount, an amount of Rs.91,000/- was paid by way of cheque dated 30.12.1988 and for the remaining amount, four post dated cheques have been issued. When the cheques were presented on the date as mentioned therein, they were returned. There is a recital in Ex.A7 about the issuance of post dated cheques totaling to Rs.3,50,000/-. The only ground taken by the appellants in this appeal is that because the cheque numbers have not been stated in Ex.A7, the cheques were not given in pursuance of Ex.A7. Since there was no other transaction existing as on that date between the respondent and the appellants, it can be safely presumed that these cheques (Exs.A8 to A11) have been given to respondent/plaintiff for the purpose of full and final settlement in pursuance of Ex.A7. Once Ex.A7 is not denied or disputed, it can be safely inferred that the cheques were given in pursuance of the settlement. The case of the appellants is that the appellants agreed to permit the respondent to retire from the partnership and the accounts were settled; that the said post dated cheques were for the use of the firm alone, but not to individual partners for encashment; that surreptitiously, the respondent had taken away the cheques, which were kept in the office; that when the four cheques were missing from the office, the appellants instructed the Bank to stop payment for the said cheques and that the respondent accepted the full and final settlement for Rs.91,000/-. If really the contention of the appellants is to be accepted that the respondent accepted Rs.91,000/- for full and final settlement, there is no need to issue other four cheques. The cheques were found in the possession of the respondent. No report is given by the appellants/defendants for committing theft of cheques from the office. Therefore, the evidence of PWs.1 and 2 and the recitals in Exs.A8 to A11 have been established beyond preponderance of probability with regard to liability of the appellants to pay certain amounts in terms of settlement. The evidence of the respondent/plaintiff remained unchallenged. There is no contra evidence adduced on behalf of the appellants to show that the respondent committed theft of Exs.A8 to A11. None of the appellants has come to the witness box to depose about the defence taken in the written statement. Therefore, the trial Court appreciated the evidence in a right perspective. The question of remand as contended by the learned counsel for the appellants does not arise in view of the fact that in the appeal grounds it is not stated specifically that no reasonable opportunity was given to the appellants to adduce evidence in the trial Court. Hence, there are no grounds to interfere with the impugned judgment. The appeal is devoid of merit and is liable to be dismissed. 8. Accordingly, the C.C.C.A. is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J February 15, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.46 OF 2006 Between: M/s.Multi Tech Test House and others .....APPELLANTS AND P. Venkata Ramana Murthy ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU C.C.C.A.No.46 OF 2006 February 15, 2011