IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 RSA.No. 43 of 2008() -------------------- AS.224/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.148/2004 of ADDL.SUB COURT, KOCHI .................... APPELLANT/RESPONDENT/DEFENDANT: ------------- HAJI K.H. ABDUL KHADER, AGED 57 YEARS, S/O. SRI.HYDRU, PROPRIETOR, MAKKA FRUITS COMPANY, POST OFFICE ROAD, TRICHUR. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.D.PEETHAMBARAN RESPONDENTS: APPELLANT/PLAINTIFF: ----------------- M/S. MATHA SHIPPING AND LOGISTICS HAVING ITS OFFICE AT 24/1442, PHIPSON & SONS BLDG. MILLINA ROAD, WILLINGDON ISLAND, KOCHI-682000 REP. BY ITS PROPRIETOR P.J. GEORGE, AGED 54 YEARS, S/O. SRI.P.V.JOSEPH. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... R.S.A.No. 43 OF 2008 ............................................ DATED THIS THE 14th DAY OF JANUARY, 2008 JUDGMENT Defendant in O.S.148 of 2004 on the file of Additional Sub court, Kochi is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.1,40,860/- with future interest at 12% due from appellant. According to respondent, a proprietory concern engaged in the business of clearing and forwarding agents, mainly in Cochin Port Trust, appellant is the proprietor of M/s. Makka Fruits engaged in the business of exporting fruits from India and abroad. It was contended that appellant approached respondent in April 2003 and engaged in services and C and F agents for exporting mango to Dubai and pursuant to the engagement, respondent rendered his services and apart from C & F charges, appellant had also to pay necessary Ocean Frieght for the aforesaid consignments along with war surcharge. Towards the consignments, undertaken, respondent raised Ext.A1 debit note for a sum of Rs.1,54,132/-, Ext.A2 debit note for Rs.1,51,685/- and Ext.A3 debit note for Rs.1,36,297/-. It was contended that towards the amount due, appellant paid Rs.1,40,000/- on 11.4.2003, RSA 43/2008 2 Rs.14,130/- on 23.4.2003, Rs.20,000/- on 6.5.2003, Rs.1,00,000/- on 6.5.2003 and Rs.45,000/- on 3.7.2003 and Rs.1,22,984/- was outstanding as on 3.7.2003. It was contended that respondent is maintaining a true and proper account and on various occasions, respondent requested appellant to settle the account but he did not pay the amount. Ext.A4 lawyer notice was issued informing the position and demanding Rs. 1,22,984/- with interest at 12%. Appellant received the notice. But instead of paying, respondent sent Ext.A5 reply setting up a false case. Respondent sought realisation of the amount due. 2. Appellant resisted the suit admitting that respondent had approached appellant and offered to act as C and F agent for the appellant to export mangoes to Dubai and accordingly appellant entrusted the work of exporting mangoes to plaintiff and appellant had no previous acquaintance with respondent. It was contended that as on 6.5.2003, there was a balance of Rs.1,67,984/- and on 7.5.2003, a cheque for Rs.1,40,000/- drawn in his account in State Bank of India was issued and on 20.5.2003, Rs.45,000/- was paid in cash and later cheque for Rs.1,40,000/- was dishonoured and respondent approached appellant and intimated the fact and thereafter appellant settled RSA 43/2008 3 the dues by making a cash payment of Rs.1,20,000/- on 10.6.2003. It was contended that on receipt of that amount, respondent returned the dishonoured cheque and accordingly a total sum of Rs.4,39,113/- was paid and it was acknowledged by respondent and the balance amount due was only Rs.2,984/- and it was later agreed to be written off and therefore respondent is entitled to the decree sought for. It was also contended that stating the true facts, appellant sent Ext.A5 reply to Ext.A4 notice and the suit is only to be dismissed. 3. Learned Sub Judge, on the evidence of PW1, Exts.A1 to A5, DW1 and B1 to B7, dismissed the suit upholding the plea of discharge. Learned Sub Judge relied on Ext.B5 receipt, evidencing payment of Rs.1,20,000/- as claimed by appellant and found that appellant is not liable to pay any amount. Challenging the dismissal of the suit, plaintiff filed A.S.224 of 2006 before District Court, Ernakulam. Learned District Judge, on reappreciation of evidence, found that though appellant in his written statement pleaded that Rs.1,20,000/- was paid, when he was intimated about the dishonour of the cheque for Rs.1,40,000/- and the dishonoured cheque was returned, there was no pleading that at the time of payment of Rs.1,20,000/-, RSA 43/2008 4 Ext.B5 receipt was issued by the respondent. Learned District Judge also found that when examined as DW1, appellant admitted that he was aware that a stamped receipt is to be obtained for payment of Rs.1,20,000/- and he deposed that respondent promised to send a stamped receipt by post and no such stamped receipt was issued and when DW1 was asked whether his account book would show that Rs.1,20,000/- was paid on 20.5.2003, DW1 deposed that he cannot say whether the amount will be shown in the account book. On appreciating the entire evidence, it was found that the discharge pleaded by appellant is not believable and on reversal of the findings of the trial court, granted a decree. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that when examined as PW1, appellant admitted that he is an agent of the Trading Corporation Ltd and evidence of PW1 establish that he does not have a license and he was engaged in the business using the license obtained by the Trading Corporation Ltd and therefore a suit for realisation of the amount due to the principal by the agent is barred as provided under Section 230 of Indian Contract RSA 43/2008 5 Act and therefore on that sole ground, the suit should have been dismissed. Learned counsel also argued that trial court, on appreciation of evidence and comparing the signature of Raju seen in Ext.A1 to A3, with the signature seen in Ext.B5 found that the receipt was issued by Raju for the respondent and first appellate court was not justified in rejecting that evidence especially when Raju was not examined. Learned counsel also argued that though the burden to prove the discharge is on the appellant, when evidence establish that appellant paid that amount and obtained Ext.B5 receipt issued by Raju, who is admittedly an employee of respondent and that Raju was not examined, first appellate court should not have accepted the evidence of PW1 and should have drawn an adverse inference against respondent for non-examining Raju and should have confirmed the findings of the trial court that payment of Rs.1,20,000/- was proved. Learned counsel further argued that first appellate court is not at all justified in granting a decree in the light of the evidence on record and though first appellate court has acted upon the evidence of DW1 with regard to expression of ignorance about the entry regarding payment of Rs.1,20,000/-, the non-production of account book by RSA 43/2008 6 respondent to prove that an amount of Rs.45,000/- paid in cash was on 3.7.2003 and not on 25.10.2003 as claimed by appellant was not appreciated and therefore judgment of first appellate court is not sustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though learned counsel vehemently argued that in view of Section 230 of Indian Contract Act, the suit instituted by respondent is not maintainable, as he is only an agent of the Trading Corporation Ltd, as admitted by PW1, I find that there is no pleading in the written statement that the transaction was not with respondent but with the Trading Corporation Ltd or that transaction with respondent was in his capacity as an agent of the Trading Corporation Ltd. On the other hand what was specifically pleaded by appellant himself was that it was respondent who approached appellant and offered to act as the exporter and there was agreement between appellant and respondent. There was no case that the transaction was with the principal, Trading Corporation Limited. Therefore, relying on the evidence of PW1, with regard to existence of a relationship of principal and agent with Trading Corporation Ltd, appellant is not entitled to RSA 43/2008 7 contend that the suit is not maintainable. Even though PW1 admitted that he was an agent of Trading Corporation Ltd, he did not admit that the suit transaction with appellant was in his capacity as the agent of Trading Corporation Ltd. Such a question was not put to PW1 and PW1 did not admit that fact. Therefore based on the so called admission, appellant is not entitled to contend that suit is not maintainable in view of Section 230 of Indian Contract Act. 6. Transaction between appellant and respondent is admitted. So also the amount due. What was contended by appellant was that there was a discharge which was denied by respondent. As rightly found by first appellate court, burden is definitely on the appellant to prove the discharge. The factum of discharge pleaded by appellant is a payment of Rs.1,20,000/- evidenced by Ext.B5 receipt. The argument of learned counsel is that Ext.B5 receipt was issued by Raju, an employee of the respondent and as that Raju was not examined by the respondent, first appellate court should have drawn an adverse inference against respondent. The argument is that even though burden is on the respondent to prove the discharge, basing on presumption and the evidence on record, the burden to prove RSA 43/2008 8 should have been shifted to appellant. I could have accepted the argument of the appellant if at least in the written statement appellant had pleaded that Rs.1,20,000/- on behalf of respondent was received by Raju and Raju had issued a receipt evidencing payment of Rs.1,20,000/-. What was pleaded in the written statement is that as on 6.5.2003, Rs. 1,67,984/- was due and on 17.5.2003, as per a cheque drawn in State Bank of India, Rs.1,40,000/- was paid and on 20.5.2003, Rs.45,000/- was paid and later respondent approcahed appellant and informed that cheque for Rs.1,45,000/- was dishonoured and then there was a settlement and Rs.1,20,000/- was paid in cash on 10.6.2003. If in fact Rs.1,20,000/- was paid pursuant to the dishonour of the cheque and in settlement of the account with respondent, it is not known why the amount was not paid directly to the respondent and instead, paid to an employee. Moreover, as rightly found by first appellate court, there is no whisper in the written statement that amount of Rs.1,20,000/- was paid to Raju or that a receipt was passed by Raju on behalf of the respondent. If such a case was pleaded and respondent did not examine Raju, appellant would have been justified in contending that non examination of Raju warrants drawing of an adverse inference. RSA 43/2008 9 But when there is no case pleaded that a receipt was issued and that too a receipt issued by Raju, finding of first appellate court that appellant did not establish the discharge cannot be said to be a perverse appreciation of evidence or a view which cannot be taken on appreciation of evidence. 7. Added to this, learned District Judge relied on the evidence of appellant himself who expressed ignorance about the fact whether the alleged payment of Rs.1,20,000/- would be shown as paid on 10.6.2003 in his account book. On the entire appreciation of evidence, it cannot be said that the finding of fact by first appellate court that appellant did not establish payment of Rs.1,20,000/- on 10.6.2003 is not a possible or reasonable view that could be taken on the appreciation of evidence. The argument of learned counsel is that respondent cannot be believed when he set up a case that the dishonoured cheque was returned to appellant without getting the entire amount due. Even according to appellant, the dishonoured cheque was returned by respondent. The case of appellant is also that the dishonoured cheque was returned to appellant. His case is also that when the dishonoured cheque was returned, the entire amount was not paid. Instead, even after payment of RSA 43/2008 10 Rs.1,20,000/-, allegedly made by appellant, there was a further balance of Rs.2984/-. According to appellant, respondent subsequently agreed to write it off. In such circumstances, when even according to appellant, the dishonoured cheque was returned, without receiving the entire amount, it cannot be said that the explanation accepted by the first appellate court is not a reasonable one. It cannot be said that finding of fact arrived at by first appellate court was either based on a perverse appreciation of evidence or improper appreciation of evidence or it is a view which cannot be taken on appreciation of evidence. In such circumstances, appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-