IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 317 of 1991()
1. Y.SANKARANARAYANAN
... Petitioner
Vs
1. M.GEORGE AND BROTHERS BANKERS
... Respondent
For Petitioner :SRI.R.SANKARANARAYANAN (PARTY-IN-PERSON)
For Respondent :SRI.K.P.VIJAYAN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :05/11/2007
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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A.S. NO.317 OF 1991
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Dated 5th November, 2007.
J U D G M E N T
Kurian Joseph, J.
This is an appeal filed against the judgment and
decree in O.S.71/89 on the file of the Additional District
Court, Mavelikkara. Defendants 1, 2 and 5 are the
appellants. Plaintiffs 1 and 2 and defendants 3 and 4
respectively are the respondents. The first plaintiff is a
partnership firm and the second plaintiff and defendants 3
and 4 are the partners. Since defendants 3 and 4 were not
amenable to join as plaintiffs, the suit was instituted by the
firm and one of the partners, impleading the other partners
as defendants. The plaint schedule item No.1 belongs to
the first defendant and item No.2, to the second defendant.
Defendants 1 and 2 executed four equitable mortgages for
Rs.49,000/- each, in favour of the first plaintiff firm. Within
the stipulated time, the said defendants are paid only an
amount of Rs.71,050/-. As on the date of institution of the
AS NO.317/91 2
suit, an amount of Rs.3,93,471/- was the outstanding
liability. Defendants 1 and 2 took the stand before the court
below that they have already discharged the liability by
paying the amounts to the 4th respondent, who is one of the
partners. The plaint schedule item No.1 had already been
sold to the 5th defendant, who is the son of the 4th
defendant. The 5th defendant also took the stand that he
had purchased the property from the first defendant as per
document No.344/83 of Kozhencherry Sub Registry, after
the liability in respect of the property to the first plaintiff
firm was cleared by the first defendant. The court below
decreed the suit with costs. Aggrieved, the appeal is filed
by the defendants 1, 2 and 5.
2. When the appeal was taken up on several
occasions, there was no appearance for appellants 1 and 2
(defendants 1 and 2). The appeal is prosecuted only by the
third appellant (5th defendant).
3. The third appellant (5th defendant) as noted
above is the son of the 4th defendant, one of the partners.
AS NO.317/91 3
The second plaintiff and defendants 3 and 4 are brothers
and they are partners of the first plaintiff firm. According to
the third appellant, item No.1 of the plaint schedule
property has been purchased by him after the first
defendant cleared the entire liability to the plaintiff firm and
hence there is no encumbrance on the property. For one
thing it is to be seen that the first defendant, who is the first
appellant is not prosecuting the appeal. That apart, on
merits also, there is absolutely no evidence regarding the
discharge of liability by the first defendant to the firm.
Loan was extended by the firm. Whole transactions are
covered by documents executed between the firm, and the
first and second defendants. The mortgage is executed
with the firm. There is no evidence regarding discharge of
the liability to the firm by the first defendant. According to
the 5th defendant, the first defendant had paid the amounts
to the 4th defendant and the 4th defendant had received the
amounts for an on behalf of the firm accordingly and hence,
the first defendant was discharged.
AS NO.317/91 4
4. We are afraid, the contentions cannot be
appreciated. There is nothing on record to show that the
amounts said to have been paid by the appellants 1 and 2
have been duly credited to the accounts of the firm. There
is also nothing on record to show that the 4th respondent
was acting for and on behalf of the firm, if at all he had
received the payments to the firm from defendants 1 and 2.
Still further, the first defendant could not produce any
receipt to establish the plea of discharge. Since the
amounts were advanced under registered deeds, the same
could have been released only by recording due satisfaction
thereof in accordance with law. There is absolutely no
evidence available on record to show such satisfaction.
Defendants 1 and 2 are not prosecuting the appeal also.
Hence, in the normal course the third appellant, who is the
5th defendant and the transferee of the charged property
from the first defendant, cannot have a better case than
that of his vendor, in the absence of any evidence adduced
in the case regarding the satisfaction of the debt by duly
AS NO.317/91 5
paying the same to the firm. Therefore, we agree with the
reasoning and findings of the court below that there is no
evidence available on record to prove due satisfaction of the
liability by defendants 1 and 2 to the firm. The alleged
acknowledgement of the payment by the 4th defendant
(father of the third appellant/5th defendant) will not in any
way establish the discharge of the liability to the firm since
he had no authority to receive such payment, and no receipt
as such of the firm is available regarding the satisfaction.
There is no representation for appellants 1 and 2.
Therefore, we do not find any merit in the contentions raised
by the third appellant, as already discussed above. The
appeal is accordingly dismissed.
KURIAN JOSEPH, JUDGE.
HARUN-UL-RASHID, JUDGE.
tgs
KURIAN JOSEPH &
HARUN-UL-RASHID, JJ
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A.S. NO.317 OF 1991
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J U D G M E N T
Dated 5th November, 2007.