IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 204 of 2006()
1. JOSHY MATHEW, AGED 53 YEARS,
... Petitioner
Vs
1. RECEIVER ADVOCATE K.N.NEELAKANDAN
... Respondent
2. WILSON P.ANTONY, AGED 48 YEARS,
3. THOMAS JOHN, AGED 51 YEARS, RESIDING
For Petitioner :SRI.JAMES KURIAN
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/11/2010
O R D E R
M.N.KRISHNAN, J
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R.F.A.NO.204 OF 2006
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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
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