IN THE HIGH COURT OF KERALA

A.S. No. 291 of 1993

Decided On: 31.03.1997

Nherapoyil N.P. Moideen

Vs.

K. Narayanan Nair

Hon’ble Judges/Coram: T. Ramachandran, J.

Citation:  MANU/KE/0068/1997,AIR 1997 Ker 318.

1. This appeal arises from the judgment and decree of the Sub Court, Quilandy in O.S. No. 55/91.

2. The appellant was the defendant in O.S. No. 55/91 before the Sub Court of Quilandy. The respondent herein by name Narayanan Nair filed the suit for realisation of the amount due under an equitable mortgage. The facts are that the defendant borrowed Rs. 1,50,000/- from the plaintiff and on 6-6-1988 the defendant executed a pronote in favour of the plaintiff for that amount with interest. An equitable mortgage deed was also executed by depositing title deeds regarding the plaint schedule properties belonging to the defendant. The period fixed for repayment of the loan was 11 months. There was a stipulation in the mortgage deed to take possession of the plaint schedule properties by the plaintiff in case of default of repayment of the amount. After adjusting the payments made, the balance amount due was Rs. 71,400/- with interest. When that amount was demanded a cheque for Rs. 67,800/- was given to the plaintiff. But that cheque was dishonoured by the bank. Then C.C. No. 112/90 was filed before the Chief Judicial Magistrate’s Court, Kozhikode. Thus the suit was filed for realisation of the balance amount by Sale of the mortgage properties shown in the plaint schedule. The defendant contended before the lower Court that even though the loan was taken, Rs. 2,03,800/-was paid to the plaintiff. His contention was that the plaintiff had not entered all payments. According to the defendants the payments made are supported by his account books. Thus he made a counter claim for Rs. 40,080/- as the excess amount paid by him.

3. After framing necessary issues the trial Court examined P.W. 1 and D.W. 1 to D.W. 3. Exts. A 1 to A5 and B 1 to B 6 and XI were marked. After hearing both sides the lower Court considered the matter and held that the discharge pleaded was not proved. Thus the counter claim was dismissed and the suit was decreed for Rs. 24,571/- with interest at the rate of 6% per annum. Aggrieved by that judgment and decree the defendant filed this appeal.

4. Counsel for both sides were heard. According to the learned counsel appearing for the appellant the lower Court went wrong in finding that he is discharged and that no amount was payable by him to the respondent. Thus the only point arising for consideration is as to whether the discharge pleaded is proved.

5. A preliminary objection is taken by the learned counsel appearing for the respondent showing that from the finding against the counter claim no appeal is filed. This point is urged on the fact that even though the question of counter claim was raised in the appeal memorandum no Court-fee was paid on it. Thus according to the learned counsel, as the counter claim was part of the discharge pleaded and as there is no appeal from the finding against the counter claimant, it works as res judicata against the question of discharge. Thus the question to be considered is as to whether there is any appeal from the counter claimant and whether it will amount to res judicata. The learned counsel relied on the decision reported in (MANU/KE/0054/1987 : 1987 (I) KLR 279: AIR 1987 Ker 235) wherein it was held that if two suits were disposed of by a common judgment and if no appeal was filed from one suit, it would work as res judicata against the other suit appealed from. Order 8, Rule 6A of C.P.C. deals with counter claim. Thus the defendant is in a position to raise counter claim in a suit provided he paid Court-fee for the same. A counterclaim is across suit as held in the decision reported in MANU/KE/0036/1988 : AIR 1988 Ker 163 Pathrose Samual v. Karumban Parameswaram. Mentioning the difference between set off and counter claim, this Court held in the said decision that the counter claim is substantially a cross suit. It is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in-an independent action. Further it was held that it need not be an action of the same nature as the original action or even analogous thereto, even though the claim has to be one entertainable by the Court. Under Order 20, Rule 19(2) of C.P.C. it is stipulated that the decree should be appealed as a whole. In the decision reported in MANU/MP/0043/1971 : AIR 1971, MP 138, Dcepchand Tejpal Singh v. Narendra, Prasad Mittal, it was a suit for eviction and arrears of rent and the decree was passed on the basis that the plaintiff was a landlord. But the appeal was only against decree for eviction. Thus the Madhya Pradesh High Court held that the question whether the plaintiff was not a landlord cannot be challenged. There it was held that where only a part of the decree is appealed from, the rest of the decree becomes final and operates as res judicata. Thus this decision is an authority for the proposition that piece meal appeal is res judicata. From a decree for partition where an appeal is preferred against only a part of the decree covering one lot of property the apex Court held in the decision reported in MANU/SC/0472/1971 : AIR 1971 SC 2070 A.J. Pinto v. Smt. Sahebbi Kom Muktum Saheb by L.Rs. that the decree covering the rest of the property becomes final. In the decision reported in MANU/SC/0393/1984 : AIR 1984 SC 1012, Gurbex Rai v. Punjab National Bank the apex Court held that where in a suit filed by the bank against a firm for recovery of balance on cash credit account, the firm had contended that it was entitled to the adjustment of the amount received by the bank from the insurer in respect of the goods pledged by the firm with the bank and that claim was put in issue and decided in favour of the firm, the finding inter parte became res judicata. Relying on the earlier decision reported in MANU/SC/0358/1976 : AIR 1976 SC 1645 and (1901) ILR 28 Cal 78, the apex Court held in the decision reported in MANU/SC/0025/1977 : AIR 1977 SC 1268, Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu by LRs. that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions. Thus it was held that the expression ‘former suit’ according to explanation 1 of Section 11 of C.P.C. makes it clear that if a decision is given before the institution of the proceeding, which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. This Court held in the decision reported in 1988 (2) KLT 921, John v. Kalliyani that the provisions of Rule 22 of Order 41, C.P.C. would show that memorandum of Cross Objections is treated in law as an appeat-itself. This Court held in the decision reported in MANU/KE/0029/1990 : AIR 1990 Ker 144, Madhavi Aroma Bhavani Amma v. Velu Pillai that where suit for title, partition and recovery of possession was jointly tried with the petition for succession certificate and-where appeal is filed only against one decision, the other decision acts as res judicata, This decision followed the earlier decision of the Full Bench of this Court as reported in 1976 KLT 979 Janaradhanam Pillai v. Kochunarayani Anima dealing with the object of Order 8, Rule 6-A to 6-G of C.P.C. the apex Court held in the decision reported in MANU/SC/0565/1996 : 1996 (4) SCC 699 : (AIR 1996 SC 2222), Jag Mohan Chawla v. Dera Radha Swami Satsang that in a suit for injunction counter claim for injunction in respect of the same or a different property is maintainable. It was further held that the counter claim need not relate to the original cause of action, but can be made on an independent and different cause of action, even on one which accrued to defendant after institution of the suit.

6. In the light of these decisions let us consider as to whether non payment of Court-fee on the plea of counter claim in the appeal will work as res judicata. By non-payment of Court-fee on the counter claim in appeal, the appellate Court is not in a position to consider the question of counter claim. Thus it has to be held that the counter claim as rejected by the lower Court has become final. That portion of the discharge of the suit amount as raising the counter claim cannot be considered by the appellate Court on the principle of res judicata. But at the same time the question of discharge of the decree amount can be considered by the appellate Court.

7. On merit it can be seen that the plaintiff showed the payment of Rs. 78,600/- in the plaint and the balance was paid. Thus the balance amount to be paid was shown as Rs. 25,571/-. Thus the decree was passed for that amount. Ext. AI is the pronote and Ext. A2 is the mortgage deed executed by the defendant in favour of the defendant on 6-6-1988. Exts. A3 to A5 were the title deeds deposited by the defendant for creating the equitable mortgage as evidenced by Ext. A2. The case of discharge put forward by the appellant was only as written in his accounts. Thus Exts. B1 and B4 day books and Exts. B2 and B3 ledgers were produced by the defendant. They were disbelieved by the lower Court on the ground that they were not true and proper accounts. It is seen that several pages are left unwritten in the day books. D.W. 3 Abdul Shukoor was examined as the person in whose handwriting the account beck were maintained by the defendant. He proved Ext.. B1 as the day book maintained by the defendant in his firm Poonoor Travels in the year, 988-89. Ext. B2 was the ledger prepared by D.W. 3 for the said period. Similarly Ext. B3 was the ledger in the handwriting of D.W. 3 maintained for the year 1989-90. Ext. B4 was the day book written by D.W. 3 for the period 1989-90 to 1990-91. D.W. 3 has stated that the handwriting in Exts. B1 to B4 was that of him. D.W. 3 stated that the accounts were maintained correctly and properly. D.W. 3 stated that at page 14 of Ext. B2 the account in the name of the plaintiff is written. According to him Rs. 95.000/- was paid in five instalments to the plaintiff as shown in the entries at page 191 in Ext. B3. D.W. 3 stated that the corresponding entry is at page 72 of Ext. B5. He stated that some entries are made at pages 84, 278, 307, 329, 343 and 356. He deposed that corresponding entries are made at pages 11, 15, 16, 26, 30 and 59 in Ext. B1. D.W. 3 stated that he had experience in preparing the accounts. In his cross-examination D.W. 3 stated that he used to make entries in the account books on the basis of slips given by the defendant. Such slips were used to be given by the defendant in one week or in one month. D.W. 3 admitted that for all the entries in Ex. B4, corresponding entries will not be shown in Ext. B3. D. W. 3 admitted that at page 14 of Ext. B2 ledger two names are mentioned. Similarly in the index of Ext. B2 it would not be shown that separate page is left for the account in the name of the plaintiff. D.W. 3 knew very well that in the ledger each page should be left for each customer. The evidence of D.W. 3 shows that the account books were not maintained by him properly. He admitted that there are gaps in the account books. Further he admitted that at pages 34,396 and 278 in Ext. B1 the entries in the name of the plaintiff were written at the bottom of the page. At page 194 of Ext. B3 the details of payment are not shown. It is to be noted that even though D.W. 3 mentioned about maintenance of slips in the office. They are not produced in Court. D.W. 3 admitted that he was present in Court hall when the defendant was examined as D.W. 1. Thus the account books produced by the defendant cannot be relied on to prove the discharge and in view of the res judicata regarding the counter claim, it is clear that the appellant was liable to pay the amount as shown in the plaint. Thus I do not find any reason to interfere with the judgment and decree of the lower Court.

For the above reasons confirming the judgment and decree of the lower Court this appeal is dismissed with costs. Time for payment one month.