IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 RFA.No. 204 of 2006() ------------------------------- OS.146/1989 of PRL.SUB COURT, KOTTAYAM .................... APPELLANT/IST DEFENDANT. -------------------------------------------- JOSHY MATHEW, AGED 53 YEARS, S/O.MATHEW, KIZHAKKAYIL VEETTIL, KOTTAYAM. BY ADV. SRI.JAMES KURIAN RESPONDENTS/PLAINTIFFS/2ND AND 3RD DEFENDANTS. ----------------------------------------------------------------------------------- 1. RECEIVER ADVOCATE K.N. NEELAKANDAN NAMBOODIRI, S/O.NARAYANAN NAMBOODIRI, KANDAMCHATHAMANA, NARAYANATHARA DESOM, THRISIVAPEROOR, CHOOLASSERY VILLAGE. 2. WILSON P.ANTONY, AGED 48 YEARS, RESIDING AT PAYYAPPALLIL, CHIYARAM POSTAL AREA, THRISIVAPEROOR. 3. THOMAS JOHN, AGED 51 YEARS, RESIDING AT MALAPRAVANAL, NEAR GOVERNMENT HOSPITAL, KUNNAMBHAGAM, KANJIRAPPALLY VILLAGE. R2 BY ADV. SRI.MATHEW JOHN, SRI.SUJESH MENON V.B. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.N.KRISHNAN, J ---------------------------- R.F.A.NO.204 OF 2006 ----------------------------------- Dated this the 16th day of November, 2010 JUDGMENT This is an appeal preferred against the judgment and decree passed by the Principal Sub Judge, Kottayam in O.S.No.146 of 1989. The suit is one for realisation of the amount due under promissory notes. It is the case of the receiver who had been put in charge of the asset that the first defendant borrowed sum of executing six promissory notes and thereafter did not pay the amount and hence the suit. The former persons in charge of the partnership concern has remained exparte as defendants 2 and 3. Now the defence set up is that amount has been paid and receipt obtained and that will prove the discharge. Originally the suit was dismissed and in appeal this Court remanded the case to the trial court for fresh disposal after permitting the parties adduce evidence. After the remand DW2 was examined. Now the crux of the matter is that it is R.F.A.NO.204 OF 2006 2 only a plea of discharge that has to be proved by the 1st defendant who had raised the plea of discharge. The amount borrowed is from a private concern it has nothing to do with any individuals. The receipt produced in support of the discharge is a receipt signed by individuals without any seal of the concern. It has to be remembered the said concern had been declared as insolvent. It is well known to all that what type of transactions and adjustments and irregularities takes place when a firm is about to declared as insolvent. Therefore, if the amount is paid to the concern from where it is borrowed there must be a document with the seal and signature of that concern or there must be valid acceptable documents maintained by that concern in the ordinary course of business to prove the discharge. Therefore, the mere production of a receipt and examination of a person called Mr.Sasi as DW2 will not improve the case of discharge. I do not know why DW2 should there when the matter can be proved if true by convincing documents. Therefore, I hold that R.F.A.NO.204 OF 2006 3 the trial court was perfectly justified in holding that evidence tendered with respect to the plea of discharge is not acceptable. There is nothing to interfere with the decision tendered by the trial court. Considering the facts and circumstances, I direct the parties to bear their respective costs. In the result, appeal is dismissed but without costs. M.N.KRISHNAN,JUDGE pm