R.BANUMATHI,J. - (1.) CHALLENGE in this appeal is the judgment and decree in O.S.No.4134 of 2000 whereby the VI Additional Judge, City Civil Court, Chennai has decreed the suit holding that Defendants 1 to 3 are jointly and severally liable to pay a sum of Rs.6,72,500/- together with subsequent interest at the contracted rate of 36% per annum from the date of suit till the date of realisation. Unsuccessful Defendants are the Appellants.
(2.) CASE of Plaintiff is as follows:- 1st Defendant is the Proprietrix of the Company M/s.S.B.A. Traders dealing with the trading of shares. At the invitation of Defendants, Plaintiff invested a sum of Rs.5,00,000/- in 3rd Defendant's Company for which Ex.A1-agreement [30.06.1996] was entered into. As per Ex.A1-agreement, Defendants agreed to repay the said amount by investing the same for a period of 90 days, subject to a maximum period of 120 days which shall carry an interest of 36% per annum. In order to discharge the said liability of the Defendants, 1st Defendant issued Ex.A2-cheque [30.05.1997] for Rs.6,60,000/-. When Ex.A2-cheque was presented into the State Bank of India, Salem Branch on 02.06.1997, the said cheque was dishonoured for "insufficient funds". Plaintiff issued Ex.A13-legal notice [19.06.1997] under Negotiable Instruments Act. Thereafter, the 2nd Defendant approached the Plaintiff and paid Rs.1,25,000/- and agreed to pay the balance amount in seven instalments, six of which at Rs.90,000/- each and the last one at Rs.22,000/- as final instalment. On that basis, 2nd Defendant issued seven cheques [Exs.A3 to A9] which also when presented were dishonoured by the Defendants' bankers. Plaintiff informed the Defendants about the dishonour of cheques and called upon them to make payment. Defendants have totally paid a sum of Rs.3,80,000/- on various dates towards principal and interest. According to Plaintiff, still there was an outstanding of Rs.7,77,745/- due as on October 1999 and Ex.A15-notice was issued on 16.11.1999 calling upon the Defendants to pay a sum of Rs.7,77,745/-. The agreed rate of interest was at 36% per annum. Restricting the claim to Rs.6,72,500/-, Plaintiff has filed the suit for recovery of a sum of Rs.6,72,500/- payable at the contracted rate of interest at 36% per annum from the date of suit till the date of realisation. Denying the plaint averments, Defendants 1 to 3 have filed the written statement contending as follows:- Plaintiff invested Rs.5,00,000/- and obtained 50,000 shares from the Company viz., M/s.Chandra Prabhu Housing Limited worth Rs.5,00,000/- as security. Unfortunately, the shares could not be sold in the market due to Court order as the result of which, they were dead stocks lying at their end and therefore, final payment could not be arrived at. Plaintiff returned only 5000 shares to 1st Defendant and retained the remaining 45,000 shares with him. According to Defendants, they have paid a sum of Rs.4,73,500/- to the Plaintiff; but the Plaintiff has unjustly withheld 45,000 shares with him worth Rs.4,50,000/-. Plaintiff has to return the balance shares held by him numbering 45,000 shares. Plaintiff has conveniently struck out Mrs.Vanaja Sekar's name in the agreement [Ex.A1] and filed the suit on such agreement. According to Defendants, after the shares are returned, they have to be sold in the market and the loss or profit amount will be arrived at and thereafter, the profit or loss thereof has to be equally shared by the Plaintiff and the 1st Defendant respectively. Since the Defendants have already paid a sum of Rs.4,73,500/-, Defendants are not liable to pay any amount to the Plaintiff and the suit is a frivolous one and prayed for dismissal of the suit. On the above pleadings, four Issues were framed by the trial Court. On the side of Plaintiff, Plaintiff-Dr.N.V.Sundaram examined himself as PW1 and Exs.A1 to A18 were marked. On the side of Defendants, 2nd Defendant-L.Udhay Mehta was examined as DW1 and Exs.B1 and B2 were marked.
(3.) UPON consideration of oral and documentary evidence, trial Court held that it was not disputed that the amount was invested by the Plaintiff with the 3rd Defendant Company. Pointing out the return of the cheques and referring to the recitals in Ex.A1- agreement, trial Court held that as per Ex.A1-agreement, 1st Defendant has agreed to repay the amount with interest at the rate of 36% per annum and hence, he cannot evade payment of suit amount to the Plaintiff. Pointing out that the payments made by the 1st Defendant has been deducted, trial Court decreed the suit as prayed for. Challenging the impugned judgment, Defendants have preferred this appeal. Mr.C.Uma Shankar, learned counsel appearing for the Appellants has contended that Defendants have already paid a sum of Rs.4,30,000/- and that amount has not been properly credited. It was further submitted that as security 50,000 shares have been handed over to the Plaintiff, out of which, Plaintiff has returned only 5,000 shares and retained 45,000 shares and when the Plaintiff has retained 45,000 shares, the suit claim is unsustainable. Taking us through the written statement, learned counsel for Appellants has contended that 1st Defendant has denied his signature in Ex.A1- agreement [30.6.1996] and while so, the trial Court erred in saying that Ex.A1-agreement was not disputed. It was further submitted that in the light of the denial of 1st Defendant's signature in Ex.A1- agreement, the trial Court ought to have framed relevant Issues as to the genuineness of Ex.A1-agreement and the impugned judgment granting the relief as prayed for is liable to be set aside.;