IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 AS.No. 31 of 1995() ------------------- OS.140/1989 OF SUB COURT, OTTAPPALAM .................... APPELLANT/PLAINTIFF: ---------------------------------- D. REVICHANDRAN, S/O. DANDAPANI CHETTIAR, VANIYAMKULAM VILLAGE, OTTAPPALAM TALUK. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN RESPONDENTS/DEFENDANTS: ----------------------------------------- 1. A.M. HABEEB RAHIMAN, S/O. LATE ABDUL LATHEEF. 2. A.M. ABDUL MAJEED ALL ARE RESIDING IN THOTTAKKARA IN OTTAPPALAM TALUK. R2 BY ADV. SMT.S.JAYASREE SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON 24/09/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 31 of 1995 - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of September, 2009 JUDGMENT This appeal is filed by the plaintiff in O.S.No. 140 of 1989 on the file of the Sub Court, Ottapalam. The respondents herein are defendants 1 and 2 in that suit, which was filed for realisation of money. 2. The plaintiff and defendants being partners conducted Sumangali Garments in Room No.7 of Ottapalam Bus Stand shopping Complex and Sumangali Textiled in Room No.9 of that shopping complex. The plaintiff has rendered valuable services for the betterment of the two business concerns. While so, there was some misunderstandings between the plaintiff and defendants and the plaintiff has decided to retire from the partnership. The other partners also agreed for this. A.S.No. 31 of 1995 2 3. The plaintiff and his brother retired from the Sumangali Textiles after receiving the share of Rs.20,000/-. The plaintiff and another partner, one Oli Mohammad, were decided to retire from the Sumangali Garments. The amount due to Oli Mohammad had been given. Instead of giving the amount due to the plaintiff, it was agreed to give Rs.3,000/- per month to the plaintiff from 2.9.1988 for a period of 20 years. Agreeing for the above terms, a stamp paper agreement has been written on 2.8.1988. The defendants have given only Rs.8,800/- to the plaintiff. The remaining amount shown in the plaint is due to the plaintiff. The plaintiff has requested for the amount due to him as per the agreement. But defendants have not given the amount. Atlast the plaintiff has issued a lawyer notice on 20.4.1989. After receiving the lawyer notice, they have not sent any reply and also failed to pay the amount. Hence the suit was filed. 4. Defendants 1 and 2 jointly filed a written statement, in which it is stated that that Sumangali garments is now being A.S.No. 31 of 1995 3 conducted by the defendants. It is true that the plaintiff and the defendants being the partners of the firm conducted Sumangali Textiles at room No.9 of the Shopping Complex. The plaintiff has not rendered any valuable services for the conduct of that business. The plaintiff and the defendants equally rendered services in that business. It is true that the plaintiff and his brother retired from Sumangali Textiles as per written document executed on 2.8.1988. Rs.20,000/- also has been received by them. It is also true that Oli Mohammad and the plaintiff decided to retire from Sumangali Garments. 5. The plaint averments that the defendants agreed to pay Rs.3,000/- per month to the plaintiff for 20 years is not correct. At the time of starting 'Sumangali Garments' the investment of the plaintiff was only Rs.5000/- As requested by the plaintiff the investment amount has been returned to the plaintiff and obtained a retirement-cum-release deed from him. Thereafter a fresh partnership deed has been executed between the defendants A.S.No. 31 of 1995 4 and the plaintiff's brother. Defendants invested Rs.20,000/- each and the plaintiff's brother invested Rs.2,000/- The plaintiff's brother is only a sleeping partner of the firm. 6. At the time of the payment of Rs.20,000/- and Rs.5,000/- to the plaintiff, some stamp paper agreements were signed by the defendants as per the request of the plaintiff. The defendants have no knowledge in English. But they could put their signature in English. On understanding this fact, the plaintiff has misrepresented and obtained a signed false document from the defendants. There was not any talk between the parties regarding the execution of such a document. The document relied on by the plaintiff is not enforceable since the terms of the agreement are penal and that the plaintiff has falsely obtained the signature from the defendants without disclosing the facts. It is also against the provisions of the Indian Contract Act. The plaintiff is not entitled to get any amount from the defendants. A.S.No. 31 of 1995 5 7. Defendants came to know of this matter only at the time of getting the lawyer notice on 20.4.1989. Immediately defendants met the plaintiff and enquired about this. The plaintiff has no right to get the amount claimed in the plaint. Plaintiff had never requested for any amount directly or through mediators. Plaintiff has no cause of action to file this suit, it was contended. 8. In the Sub Court PWs. 1 and 2 and DW1 were examined and Exts.A1 and A2 and B1 to B9 were marked. The learned Sub Judge, on considering the evidence, found that the defendants did not execute the disputed agreement and the suit was dismissed without cost. Against that judgment and decree the plaintiff filed this appeal. 9. Heard the learned counsel for the appellant and the learned counsel for the respondents. 10. The learned counsel for the appellant submitted that the respondents have admitted their signature in Ext.A1 A.S.No. 31 of 1995 6 agreement and the appellant proved the execution of that agreement by examining PW2, who is an attesting witness to that document and as such the learned Sub Judge ought to have decreed the suit. Whereas, the learned counsel for the respondents supported the judgment of the lower court. 11. It is an admitted fact that the plaintiff, defendants 1 and 2, plaintiff's brother Venkitachalam and one Oli Mohammed started a partnership business in the year 1986 by name 'Sumangali Garments' as per the original of Ext.B3 partnership Deed. In Ext.B3, it is stated that the total capital of the partnership is Rs.25,000/-, which was contributed equally by the partners at the rate of Rs.5,000/- When the plaintiff was examined as PW1, he deposed that the contribution of each partner shown in Ext.B3 is not the actual amount contributed by each partner. In the plaint, the plaintiff has not mentioned about the quantum of amount contributed by him in that partnership business. When PW1 was cross examined, he deposed that he A.S.No. 31 of 1995 7 contributed Rs.40,000/- in that partnership business. The plaintiff has not produced any document to show that he contributed Rs.40,000/- in that partnership business. It is also an admitted fact that the plaintiff and his brother were partners to another partnership called 'Sumangali Textiles', in which the defendants were also partners. In that partnership, the contribution of the plaintiff was Rs.20,000/- which was received back by the plaintiff when the plaintiff retired from that partnership, which is evident from Ext.B7 retirement-cum- release deed. 12. PW1 deposed that lesser amount was shown in Ext.B3 in order to escape from the tax liability. But PW1 has not explained why they did not adopt the same method with regard to 'Sumangali Textiles'. The present suit is based on Ext.A1 agreement dt. 2.8.1988 alleged to have been executed between the plaintiff and the defendants. In that agreement it is stated that the plaintiff executed Deed of Retirement from the A.S.No. 31 of 1995 8 partnership called 'Sumangali Garmets' on that day and towards consideration for the past services and good work done by the plaintiff and in order to compensate him adequately, as consideration of his retirement defendants agreed to pay Rs.3,000/- per month to the plaintiff every month from 2.8.1988 for the next 20 years. 13. There is no dispute that the plaintiff and Oli Mohammed retired from the partnership 'Sumangali Garments' as per Ext.B4 retirement-cum-release deed dt.2.8.1988. In that retirement deed it is stated that all dues to Oli Mohammed had been paid. But the actual amount paid to him was not mentioned in that document, in which it is stated that the money value of the plaintiff's share of the assets and interest will be paid by the defendants. The amount payable to the plaintiff is not mentioned in that document. 14. PW2 is an attesting witness to Ext.A1 agreement and other release deeds. In cross examination PW2 deposed that A.S.No. 31 of 1995 9 the investment of the plaintiff in 'Sumangali Garments' is Rs.5,000/- and it was decided to give back Rs.5,000/- to the plaintiff. PW2 further deposed that the mediation was on 2.8.1988 and the document was signed on 3rd and the plaintiff admitted that he had received that amount. PW2 deposed that it was decided to give Rs.2 lakhs as share of profits to Oli Mohammed and he had not seen payment of Rs. 2 Lakhs to Oli Mohammed. The plaintiff has not taken any steps to prove that Rs. 2 lakhs was given to Oli Mohammed as share of profits at the time of retirement from the partnership. In the plaint the amount paid to Oli Mohammed at the time of his retirement from that partnership is not mentioned. There is no document to show the share of profits payable to the plaintiff at the time of his retirement from the partnership. 15. The first defendant was examined as DW1. He deposed that Rs.5,000/- was given to Oli Mohammed at the time of retirement from 'Sumangali Garments'. He admitted that he A.S.No. 31 of 1995 10 had received lawyer notice sent by the plaintiff and he did not send any reply, even though he was aware of the fact that the matter involved an amount of Rs. 7 lakhs. 16. Even if the illegality of an agreement is not raised by the defendants if the illegality appears from the evidence adduced or otherwise brought to the notice of the Court, the Court will decline to grant relief to the plaintiff on the basis of that agreement. On appreciating the evidence on record, the learned Sub Judge found that the terms in Ext.A1 agreement is penal and unconscionable. As observed by the learned Sub Judge, it is difficult to believe that the defendants executed Ext.A1 agreement in favour of the plaintiff (who is sitting idle in the house) agreeing to pay Rs.3,000/- per month for 20 years. 17. In the plaint it is stated that after the retirement of the plaintiff, both the partnership business run by the defendants is at loss and 'Sumangali Garments' is not functioning properly. If that be so, it is not reasonable to think that at the time of A.S.No. 31 of 1995 11 retirement of the plaintiff and Oli Mohammed from 'Sumangali Garments' it was earning good profit and the defendants paid Rs.2 lakhs to Oli Mohammed at the time of his retirement and the defendants executed Ext.A1 agreement towards share of profits due to the plaintiff. In view of all these aspects of the matter, I am of the view that the learned Sub Judge is perfectly justified in dismissing the suit on finding that Ext.A1 is not executed by the defendants and that it is not valid and enforceable. 18. Accordingly this appeal is dismissed. The judgment and decree dismissing O.S.No. 140 of 1989 on the file of the Sub Court, Ottapalam is confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm