P.Jebaseelan Danielaj vs S.Sahaeu Samuel

This appeal suit is directed against the judgment and decree passed by the Additional District Judge, Tuticorin dated 30.06.2009 in O.S.No.4

of 2005.

The plaint averments are as follows:

2.1. The plaintiff and defendant are Civil Engineering Contractors. Bharath Petroleum Limited had granted two works viz., (i)supervision of

compound wall at Tanjore LPG plant and (ii) provision of road work, Culvert and Oil interceptor at Devanogonthi Installation, Bangalore. The

defendant offered the work of supervising the contract work first mentioned above and subcontract of the work second mentioned above to the

plaintiff by his letter 20.02.1999. The plaintiff accepted the offer by signing the duplicate copy of the terms and conditions and returning the same

to the defendant.

2.2.The plaintiff duly completed the above works. The defendant also had settled with Bharath Petroleum Corporation Limited, the final bill and

had received full payment. As per the terms of the contract between the plaintiff and defendant, the plaintiff is entitled to 5% of the bill amount for

item 1 work and 90% of the bill amount for item 2 work. As per the bill amount settled, the plaintiff is entitled to Rs.23,23,950/- for both the

works. Out of the above sum, the defendant had paid a total advance of Rs.14,34,745/- in several part payments and the balance is Rs.8,89,205/-

. The plaintiff sent a letter containing breakup particulars for the above balance amount. Towards part payment for the above balance, the

defendant issued a cheque in favour of the plaintiff dated 04.10.1999 for Rs.7,50,000/- with a covering letter. When the cheque was presented by

the plaintiff with the bank, the same was dishonoured on the ground ""payment stopped by the drawyer"". Thereafter, the plaintiff issued a lawyer

notice on 02.12.1999 demanding the payment of the amount covered by the cheque and the defendant sent a reply through his advocate dated

22.12.1999 with false averments. Therefore, the plaintiff has come forward with the suit for recovery of amount with interest.

The contentions of the defendant in the written statement filed by the defendant are as follows:

3.1.The privity of contract between the parties and issuance of cheque by the defendant to the plaintiff are all denied. The plaintiff and his brother

one Saharia Samuel were employed under the defendant for number of years and the defendant, being a State vide contractor could not be present

in all the time and hence, he trusted the plaintiff and his brother, who were maintaining the accounts of the defendant and entrusted the documents,

cheque books and letter pads.

3.2. Since the defendant came to know that the plaintiff and his brother committed misappropriation and breach of trust removed them from

service in September 1999. Thereafter, when he checked, he found that cheque leaves bearing Nos.029676, 029678, 029690, 029685 and

026777 along with four R.D. receipts and letter pads were missing. Immediately, on 11.10.1999, the defendant informed Tamil Nadu Mercantile

Bank for stop payment to the above mentioned cheques and also collection of recurring deposit.

3.3.He also lodged a complaint with the Crime Branch, South Police Station. But, the police issued a certificate on 14.10.1999 saying that the

valuables are not traceable. After receipt of the notice from the plaintiff, the defendant verified and found out that the alleged cheque bearing

No.029685 was missing at the time of termination of service of plaintiff. The defendant smelling the criminal activities of the plaintiff, presented the

complaint before the Judicial Magistrate under Section 156(3) Cr.P.C. and the same was forwarded to District Crime Branch, Tuticorin. The

District Crime Branch police registered a case in crime No.10 of 1999 for the offences under Sections 381, 420 and 406 of I.P.C. The police

issued a refer notice to the defendant on 17.05.2000. Against this, defendant preferred a petition for further investigation under Section 173(8) of

Cr.P.C. Only after that, the plaintiff has come forward with the present suit for the false claim. The plaintiff is neither a holder nor holder in due

course as per the Negotiable Instrument Act. Therefore, the suit is to be dismissed.

The trial Judge, after framing necessary issues and after analysing both oral and documentary evidence of both sides, decreed the suit as prayed

for. Aggrieved by the judgment and decree, the defendant has preferred this appeal.

The learned counsel for the appellant/defendant has contended that the plaintiff has not established his case that there was privity of contract

between the plaintiff and the defendant and also as to the execution of the alleged two works. In the absence of such proof, the case of the

defendant that the plaintiff while working as an employee under the defendant took away the cheque leaves and the letter pads and filed the suit

utilising the same is to be accepted in the light of the evidence of the defendant and also the complaints preferred by him with the police. Therefore,

the suit is liable to be dismissed.

The learned counsel for the respondent/plaintiff, has interalia contended that the defendant himself during his evidence admitted his signature in

the work allotment order and the cheque and the contention of the defendant that the plaintiff was an employee under him has not been established.

The trial Judge has rightly analysed the evidence and rendered the findings and the same does not require any interference.

The consistent case of the plaintiff is that the defendant allotted two works viz., (i)supervisory work and (ii)sub-contract work to the plaintiff and

the defendant responding to the plaintiff''s letter dated 01.10.1999 furnishing the breakup particulars of the amount due to him paid part payment

by issuing the cheque dated 04.10.1999 with covering letter. When the cheque was presented, the same was dishonoured and therefore, the

plaintiff has filed the suit.

The work allotment order is marked as Ex.A3. The defendant examined as D.W.1 admit his signature in Ex.A3. Similarly, the cheques, covering

letter were called for from the criminal courts and when questioned about the signature during cross examination, the defendant admits the signature

found in the disputed cheque (Ex.A1) and covering letter (Ex.A2) as that of him. When a person admits the signature in the document, the burden

is on him to establish under what circumstances those documents came into existence. For this, the main contention of the defendant is that when

the plaintiff was working under the defendant, he committed breach of trust and misappropriation and therefore, the plaintiff was removed from

service in September 1999. When he was in employment, he took away cheque leaves and letter pads and misused.

The defendant in his evidence says that he lodged the complaint with the police and then, the complaint given to the Judicial Magistrate was also

forwarded to the District Crime Branch. The first complaint given to the police was closed as not traceable. The second complaint forwarded

through the Judicial Magistrate to the District Crime Branch also ended in issuance of refer notice to the defacto complainant after investigation.

Excepting his oral evidence, the defendant has not filed even a single document to show that the plaintiff was an employee under the defendant.

The specific case of the defendant is that the plaintiff took away the cheque leaves and letter pads. Even in the written statement, he mentioned the

missing cheque leaves Nos.029676, 029678, 029685, 029690 and 026777. The cheque in dispute in this suit is 029685. The defendant in his

stop payment letter given to the bank marked as Ex.A20, specifically states that the cheque leaves after the number 029684 has been missing.

Though other cheque leaves are said to have been missing in the written statement, he informed the bank aiming only the disputed cheque. The

defendant himself admits during his cross examination that three cheques alleged to have been missed were also encashed. In view of conflicting

statement of the defendant with respect to the missing cheque leaves and encashment of three cheque leaves alleged to have been missed are

suffice to show that the stand taken by the defendant is false.

When the defendant claims that the instrument has been obtained by the plaintiff by means of fraud, under Section 118(g) of the Negotiable

Instrument Act, the defendant must first prove the existence of the alleged fraud. Then only, the burden will shift to the plaintiff. As already pointed

out, the defendant has not proved that the cheques and other documents were fraudulently created by the plaintiff.

Ex.A3 is the work allotment order dated 20.02.1999 given by the defendant to the plaintiff, wherein, two works viz., (i)supervisory wok and

(ii) sub-contract were given to the plaintiff. The plaintiff also sent a letter to the defendant on 01.10.1999 with breakup particulars about the

amount due to him and the same is marked as Ex.A4. In response to the above said letter, the defendant sent the cheque for Rs.7,50,000/- with

covering letter dated 04.10.1999 and they are marked as Exs.A1 and A2. The signatures in all the above documents have been admitted by the

defendant during his cross examination. The plaintiff thus both through oral as well as documentary evidence established that the defendant is liable

to pay the amount mentioned in the cheque.

As far as the interest is concerned, it is the case of the plaintiff that the amount towards the work has been settled by Bharath Petroleum

Limited to the defendant and therefore, the plaintiff is entitled to the interest at 18%. The amount due to the plaintiff is purely commercial

transaction and therefore, he is entitled to the existing rate of interest in the market. Awarding interest at the rate of 18% is justifiable. The trial

Court ordered the interest at 18% from the date of plaintiff till the date of decree and subsequent interest at the rate of 6%. The trial court has

rightly decreed the suit and the same does not warrant any interference.

In fine, this appeal suit is dismissed with cost throughout. The judgment and decree dated 30.06.2009 passed in O.S.No.4 of 2005 by the

Additional District Judge, Tuticorin are hereby confirmed. Consequently, connected miscellaneous petition is also dismissed.