P K RATNAVELU Vs. S MURUKESAN PILLAI

JUDGEMENT

(1.) THIS appeal is by the defendant in a suit for return of an oral loan. Admittedly the defendant was an employee in the plaintiff's shop for 8 or 10 years, The plaintiff says that in 1958 the defendant along with his father requested a loan of about Rs. 2500 to renovate their house, agreeing to repay it by set off against a moiety of his future salary for a year or two and the balance in a lump with interest. Sums were advanced as required from April 1958 to November 1958, totalling to about Rs. 2500/ -. In November 1958, the defendant left the plaintiff's service. After giving credit for Rs. 536. 48 p. for his pay and for Rs. 77/-for his bonus for the period April 14 to November 14,1958, the plaintiff claims back Rs. 1939. 32p with interest from loth november, 1958. The defendant admits to have received the amount from the plaintiff, but denies to have received it as a loan and contends it to be part of his remuneration. The Munsiff dismissed the suit but the Subordinate Judge the decreed it with some reduction in interest claimed. Hence this second appeal.

(2.) THE plaintiff as pw. 1 has sworn to his case. THE defendant's case as testified by himself is: He swears He must then know the profits of the business. But he deposes This is too good to be believed of an employee whose remuneration was a quarter of the profits. Ext. A7 is a register in which the monthly wages of the employees in the plaintiff's shop are entered in 4 columns the total pay for the month, amount already, paid, balance, paid, signature of the employee. THE entries for Chithra, Vaikasi and Ani of the year 1128 (1953), are acknowledged by, signature by the defendant. Those entries consistently show that the defendant's pay was Rs. 70p. m. in that year. In the light of these entries, it is difficult to believe his present plea that he was not a paid employee but a sharer in profits. THE non-mention in his written statement of his share in profits of the shop is significant. True, the plaintiff has sworn that the defendant's salary was not a fixed one but was variable according to his fancy at the end of each year. That is also unbelievable; and his own accounts in Ext. A7 disprove it. As there is no definite claim by the defendant to any further sum by way of salary than what has been given credit for in the plaint accounts I need not enquire the quantum of his salary here. It will suffice to find that the plea that his remuneration was a share of the profits of the plaintiff's business is false.

(3.) AS the defendant has filed to prove his plea that the amount claimed in the plaint bad been paid to him as remuneration for his services, the plaintiff is entitled to decree. But the plaintiff himself has sworn: The above statement obviously implies that the sums paid before 9-8-1958 were not to be repaid. Ext. Al shows that the sums paid before 9 81958 totalled to Rs. 487. 79p. and that the plaint amount of Rs. 1900 odd includes that too. On the plaintiff's own testimony the aforesaid sum of Rs. 487 odd has to be deducted from the plaint claim.