IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 324 OF 2005 BETWEEN: M/s. Tammana Enterprises, General Merchants & Commission Agents, Represented by its Partner …APPELLANT AND Bhadri Satyanarayana Murthy. …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 324 OF 2005 JUDGMENT: The defendant in O.S.No. 59 of 1995 on the file of Senior Civil Judge, Amalapuram, is the appellant herein. 2. The suit was filed for recovery of Rs.4,86,783/- being the value and the interest towards the supply of 628 quintals of boiled rice on 17.10.1989 by the plaintiff to the defendant at Warangal. The value of the goods is Rs.2,51,200/- and the interest claimed was at 18% per annum. The suit was filed in the form of pauperies and after enquiry, the suit was numbered. 3. The defendant filed a written statement substantially admitting the transaction with regard to the supply of the rice and also the value thereof. The defendant has pleaded that there is no amount due payable and in fact all the amounts were paid by the defendant to the plaintiff on different dates as pleaded below. The plaintiff sold rice to the defendant on one occasion under his permits under Bill No.5, dated 17.10.1989. After the settlement of bargain, the defendant paid advance amounts also to the plaintiff by way of cheques and they were properly accounted for. The defendant’s firm is a registered firm and maintaining accounts in a regular course of business which are subjected to the assessments of income tax and sales tax. The defendant paid a sum of Rs.40,000/- under a cheque on State Bank of Hyderabad, Warangal on 07.10.1989 and another sum of Rs.1,00,500/- by way of a cheque on State Bank of Hyderabad on 16.10.1989 and further paid a sum of Rs.13,725/- by way of a cheque on 21.10.1989. He also paid Rs.1,791/- by way of cash to the plaintiff on 21.10.1989. The stocks under bill No.5, dated 17.10.1989 are received and credited on 27.10.1989 in the accounts of the defendant for a value of Rs.2,51,200/-. Subsequently also he paid a sum of Rs.15,030/- under a cheque on State of Bank of Hyderabad and another cheque for Rs.1,904/- on 31.10.1989 besides cash payment of Rs.2,177/-. The defendant also paid a sum of Rs.40,761/- on 08.11.1989 by way of cheque on State Bank of Hyderabad and Rs.31,433/- by way of cheque on State Bank of Hyderabad on 11.12.1989. Thus, the entire amount under bill No.5 dated 17.10.1989 was paid in the above manner and plaintiff received cash as stated above and encashed the amount by way of cheques and enjoyed the benefit of it. So, the entire amount due under the said transaction between the plaintiff and the defendant under bill No.5 dated 17.10.1989 was closed by the payments stated supra. It was acknowledged, encashed and enjoyed by the plaintiff. The malafide and malicious attitude of the plaintiff is patent when he dared to make a claim for the alleged amounts due under bill No.5 dated 17.10.1989 again after encashing the cheques. It is nothing but black mailing the defendant for his own reasons. The plaintiff has no bona fides in filing this suit. Therefore, according to the defendant no amount is due and the suit is vexatious one and the plaintiff was enjoying in such type of suits, which were also earlier dismissed. 4. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled to suit amount? 2) Whether the circumstances pleaded by the defendant are true? 3) To what relief? 5. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.2 to A.5. On behalf of the defendant, DWs.1 and 2 were examined and marked Exs.B-1 to B-16. 6. After considering the evidence on record, the learned Senior Civil Judge, Amalapuram, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the discharge pleaded by the defendant is true? 2) Whether the judgment decree passed by the learned Senior Civil Judge, Amalapuram, is legal and sustainable? 8. POINTS: There is not of much controversy between the parties about the price of the goods supplied and also the factum of the transaction between them. The contention of the defendant is that amount was paid totally to the plaintiff under different cheques on different dates. In fact, the particulars of the cheques were also given by the defendant apart from producing the accounts maintained by the defendant. The lower Court did not accept the evidence of the defendant on the ground that in the evidence the defendant has come up with a plea that the cheques were given to one Ramesh Reddy and there is no proof that such cheques were given to the plaintiff and Ramesh Reddy was not examined and it was contrary to the plea in the written statement and therefore, the plea of discharge is rejected. According to the counsel for the appellant the reasoning given by the learned Senior Civil Judge is not correct. According to him, Ramesh Reddy is known to plaintiff and the defendant and he was also part of the transactions between them and he hails from Warangal. According to him what the defendant has deposed is only handing over of the documents to Ramesh Reddy and not that the payments were made to Ramesh Reddy towards the amount due to the plaintiff. In fact, as can be seen from the evidence of the defendant, it is not a case where he has pleaded that the amounts were paid to Ramesh Reddy payable to the plaintiff. The specific case is that the amount was paid under cheques, which were issued in the name of the plaintiff. Therefore, mere handing over the cheques to Ramesh Reddy for further handing over of the same to the plaintiff does not mean that the defendant has changed the version and pleaded that the amount was paid to Ramesh Reddy. In fact, the lower Court has ignored the important evidence of DW-2 and Ex.B.12. Ex.B.12 is a certificate dated 24.12.1992 issued by the State Bank of Hyderabad, Warangal Branch, which is as follows: “TO WHOMSOEVER IT MAY CONCERN This is to certify that the following cheques issued by M/s. Tammana Enterprises in favour of M/s. Badri Satyanarayana Murthy have been paid at our end as per annexure. Sl.No. Cheque No. Date Amount (Rs.) Presented by and paid to Date of payment 01. 0398131 07.10.1989 40,000/- Sharada Enterprises 11.10.1989 02. 0508762 16.10.1989 1,00,500/- Someshwara Enterprises 18.10.1989 03. 0508829 21.10.1989 13,725/- Sharada Enterprises 24.10.1989 04. 0508869 31.10.1989 15,013/- Someshwara Enterprises 31.10.1989 05. 0508871 31.10.1989 1,904/- -do- 02.11.1989 06. 0508892 08.11.1989 40,761/- Sree Tammana Enterprises 08.11.1989 07. 0511019 11.12.1989 31,433/- Someshwara Enterprises 16.12.1989 8. The above certificate Ex.B.12 clearly shows that the cheques were issued in whose name and they were endorsed and paid to the persons referred therein. According to the case of the plaintiff- respondent, it is all a make believe transaction and Sharada enterprises and Someswara Enterprises are nothing but a creation of the defendant and the account was opened by the defendant himself and the cheques were manipulated and entries of payment were made and the plaintiff has not received any such amount. In fact, this is a question of fact which has to be appreciated by the lower court after considering the evidence on record. Somehow the Ramesh Reddy was not examined by the defendant whose evidence is very much important. It is also necessary to prove as to whether Sharada Enterprises and Someshwara Enterprises belongs to the defendant and if necessary evidence has to be adduced whether these amounts were received by those two firms by themselves evidently or as a payment due from the plaintiff to them, otherwise there is no need for the plaintiff to endorse the payment of cheques in favour of two firms. This also has to be established by adducing proper evidence. The decision in this case rests upon the correctness of the certificate Ex.B.12 and nature of the transactions referred to therein keeping in view the evidence of DW.2. But the lower Court has not considered this aspect and this Court feels that an opportunity has to be given to both parties to adduce further evidence to show whether discharge pleaded by the defendant is true and if it is valid, payment of the money to the plaintiff. The lower Court therefore shall give an opportunity to both parties to adduce further evidence and dispose of the matter according to law. The matter shall be decided within four months from the date of receipt of the judgment of this Court. Accordingly, points are answered. 9. In the result, the appeal is allowed setting aside the judgment and decree of the lower Court. The lower Court is directed to give opportunity to both parties to adduce further evidence and decide the matter according to law and dispose of the suit within four months from the date of receipt of copy of this judgment. Each party shall bear their own costs. The plaintiff can retain the amount, which was already received by him if any towards earlier decree passed by the Court. The record also shall be transmitted immediately along with the judgment. All other applications are closed. ________________________ N.R.L.NAGESWARA RAO, J Date:07-04-2011. INL