THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCCA NO.59 OF 1993 Dated. 25 -11-2010 Between: L.Suresh Baby son of Mallaiah …Appellant Vs. P.Das son of Late P.Babaiah ..Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCCA NO.59 OF 1993 JUDGMENT The defendant in O.S.No.1169 of file of the Court of IV Additional Judge, City Civil Court, Hyderabad is the appellant herein. The suit was filed for recovery of Rs.50,000/- with interest @ 18% per anum on the allegation that the plaintiff and defendant along with his brother one Devender started a brick business and did the same till 12-11-1984 and the plaintiff was working as a partner. On 12-11-1984 as there were some disputes with regard to partnership, in the presence of elders the partnership was dissolved and the defendant has agreed to pay a sum of Rs.1,70,000/- towards share of the plaintiff and issued two cheques drawn on Union Bank of India, one each for Rs.20,000/- on 15-07-1984 and 15-08-1986 which are post-dated having paid Rs.1 lakh and when the cheques were presented, they were dishonoured. When a demand was made to the defendant and in spite of legal notice, the defendant has not paid the money and hence the suit. The defendant filed a written statement denying the allegations in the plaint about the settlement on 12-11-1984 and agreement to pay Rs.1,70,000/- and issuance of cheques. According to the case of defendant, on 12-11-1984 the plaintiff offered to sell his lorry and defendant agreed to purchase for Rs.50,000/- and by way of abundant caution, the defendant and his brother obtained a document from the plaintiff to the effect that he has relinquished all rights and interest which might have had in the business of defendant and his brother. Even thereafter, the plaintiff used to visit the house of defendant and in the first week of July,1986 when he came, he committed theft of two blank cheques and presented them. The agreement said to have been executed by the defendant on 12-11-1986 is a falsity. The defendant has paid the entire consideration for the purchase of the lorry. After the legal notice issued by the plaintiff, the defendant met the plaintiff and asked him not to play fraud or mischief. Therefore, the defendant pleaded for a dismissal of the suit. On the basis of the above pleadings, the following issues were framed by the trial court:- 1. Whether the plaintiff is also a partner in the bricks business along with the defendant and his brother? 2. Whether the partnership between them was dissolved on 12-11-1984 and that as per the agreement defendant agreed to pay Rs.1,70,000/- to the plaintiff towards his share? 3. Whether the agreement dt.12-11-1984 is true, and binding on the plaintiff? 4. Whether the plaintiff is entitled to recover the suit amount from the defendant? 5. To what relief? On behalf of the plaintiff, PWs.1 to 4 were examined and marked Exs.A-1 to A-4 and on behalf of the defendant DW.1 was examined and Exs.B-1 and B-2 got marked. After considering the evidence on record, the lower court granted a decree for Rs.50,000/- with interest @ 12 % p.a. on the principal amount of Rs.40,000/- from the date of suit till date of realisation. Aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are:- (1) Whether the plaintiff, defendant and brother of defendant did brick business? (2) Whether there was a settlement as claimed by the plaintiff on 12-11-1984? (3) Whether the defendant agreed to pay Rs.1,70,000/- and having paid the partial amount issued the cheques for the future amount? (4) Whether the judgment and decree passed by the lower court is legal and sustainable? POINTS:- The dispute between the parties is with regard to settlement of a partnership business between the plaintiff and defendant and brother the defendant. The defendant in the written statement and the evidence has denied any such business and settlement on 12-11-1984 as pleaded by the plaintiff. However, in the written statement, it was pleaded that when he purchased a lorry by way of abundant caution, an agreement was taken from the plaintiff about his relinquishment of his interest in the joint business and that agreement was marked in the cross examination of PW.1 as Ex.B-2. One fails to understand as to why such agreement shall be taken from the plaintiff if there are no business transactions. If the lorry is purchased it is the matter of sale and purchase between the parties and the agreement like Ex.B-2 is not at all needed. In this connection the evidence of PWs.1 to 4 about the mediation and settlement assumes importance. If the defendant has already paid the money for the purchase of lorry, the question of any further liability towards the transaction does not arise. However, it is to be noticed that whether the plea of the defendant that plaintiff has stealthily taken away the cheques from his house can be believed or not. The evidence does not reflect as to when he has taken away the cheques. Even after the legal notice was given about the dishonour of the cheques, no attempt was made by the defendant to deny the above fact and the conduct of the plaintiff in taking away the cheques from his house. Therefore, if really there is no agreed liability between the plaintiff and defendant, there is no need for the defendant to give post-dated cheques like Exs.B- 1 and B-2, which were subsequently dishonoured. As can be seen from the evidence of PWs.2 to 4 they have no personal interest in any of the parties. Learned counsel for the appellant contends that no accounts are produced and even at the time of settlement no accounts were looked into and in such circumstances, it is difficult to believe that the partnership business was settled. When once the parties agreed to pay a fixed amount, it can be only by taking into consideration the liabilities. The evidence of PWs.2 to 4 therefore clearly establishes the truthfulness of the claim. In fact, along with the material papers supplied by the learned counsel for the appellant, the agreement dated 12-11-1984 executed by the defendant about the settlement pleaded by the plaintiff is filed though it is not exhibited. Therefore, the theory of the defendant is improbable and the irresistible conclusion that on 12-11-1984 the matter has been settled and probably the defendant was given a lorry which was part of the business and the plaintiff has relying his rights as a consideration of promise to pay Rs.1,70,000/- towards his share and have not received part of consideration. The cheques of the defendant being in the possession of the plaintiff are a circumstance against the plea of the defendant and his plea of theft cannot be accepted. The lower court has given sufficient grounds to disbelieve the version of the defendant and therefore no grounds to interfere with the judgment passed by the lower court. Accordingly, the issues answered in favour of the respondent. Accordingly, the Appeal Suit is dismissed with costs _______________________ N.R.L.NAGESWARA RAO,J 25-11-2010 TSNR