KADIR USMAN MUJAWAR Vs. DATTATRAYA BHASKAR SINKAR

JUDGEMENT

(1.) These three appeals are filed by Kadir Usman Mujawar, the original plaintiff in Civil Suit No. 11 of 1982, 80 of 1982 and 4 of 1986 against the common judgment and order passed by the Additional District Judge, raigad, Alibag in Civil Appeal Nos. 54 of 1987, 55 of 1987 and 87 of 1987 respectively, whereby the order of dismissing the suits of plaintiff passed by the civil Judge, Senior Division, Alibag was confirmed and all the three appeals were dismissed. (For the sake of convenience hereafter the parties shall be referred to as plaintiff and defendants. )

(2.) The brief facts which are necessary for the purpose of these second appeals are as under : the defendant Nos. 2 and 3 are the sons of defendant No. 1. The plaintiffs father and defendant No. 1 formed a partnership firm by name B. B. Sinkar and u. J. Mujawar Company in the year 1949 and had started business of cutting jungle wood. Both the partners had equal share in the said partnership. In the year 1966, the father of the present plaintiff was ill and unable to carry on the business. Hence his son Kadir i. e. the plaintiff started representing his father in the partnership business. In the year 1974, defendant No. 1 and plaintiff decided to start rice mill. The defendant No. 3 at the relevant time was unemployed educated person. The defendant No. 1 suggested that if the said business is started in the name of defendant No. 3 it would be possible to get financial help from the government under the scheme regarding unemployed educated persons. They therefore decided to start the said business and also agreed that Sinkar and mujawar Company should invest initial amount for purchase of land etc. Accordingly they actually purchased the land with the help of funds of Sinkar and Mujawar Company for that business as per the say of defendant No. 1. Plaintiff also obtained certain loan for construction of shade required for the rice mill. Plaintiff also spent some other amount to the tune of Rs. 39,519/- for the said business. The plaintiff and defendant Nos. 1 and 3 were accordingly doing the business of rice mill. In the year 1979 plaintiff asked defendant No. 1 to repay the amount which he had spent. However, the defendant No. 1 gave evasive reply and finally denied to make any repayment. So, as per the custom and precedent of village Ramraj, where the parties to the suit were residing and doing business decided to prefer the dispute between them to Panchayat. Accordingly, both the parties placed their grievance before the Panchayat and then again it was referred to larger Panchayat of village Ramraj. The said panchayat was consisting of 20 respectable members from the village. The members of the Panchayat tried to settle the dispute, but could not succeed. Ultimately, after perusing all the documents and accounts the Panchayat held that a particular amount is due from the defendants 1 to 3 to plaintiff. The defendants accepted the resolution but subsequently turned down the order of said Panchayat and requested that the matter be referred to some Chartered Accountant. For selecting the Chartered Accountant again a small Committee was formed and ultimately it was decided to refer the dispute to a Chartered Accountant by name bahrain Baikar. The said C. A. then called upon both the parties, verified all the documents and accounts and ultimately came to the conclusion that certain amounts were due from the defendants to the plaintiff. It was found that in all rs. 90,000/- were due. The parties, therefore, decided to enter into an agreement and on that day the defendants paid Rs. 25,000/- to plaintiff. The defendants executed an agreement on 20-12-1980 and accepted their liability to pay. As per the said agreement balance amount of Rs. 65,000/- was to be paid by instalment. The first three instalments were not paid by the defendants to plaintiff. Plaintiff, therefore, issued notice dated 27-4-1982 to the defendants. In spite of the same the defendants did not pay the same. Hence the plaintiff filed special Civil Suit no. 11 of 1982 and claimed Rs. 38,000/- + interest on the basis of agreement exhibit 63. As the defendants also failed to pay the subsequent instalments, plaintiff filed Special Civil Suit No. 80 of 1982 and 4 of 1986 for recovery of the amount due from defendants under the agreement. The defendants 1 to 3 filed their written statement at Exhibit 19 in Special civil Suit No. 11 of 1982 and denied that there was any agreement to start rice mill business between plaintiff and defendant. The defendants contended that defendant No. 3 is sole owner of the rice mill business and for that purpose he had raised loan from banks. They also contended that at no point of time they had accepted any liability before Panchayat or before the C. A. According to the defendants Mr. Baikar had never attended the matter with due care and caution and there was collusion between the Panchayat, plaintiff and Mr. Baikar. They prepared a false document of agreement fixing the liability on defendants and the panchayat gave threats that if the defendants refused to sign the agreement the villagers would boycott them. So according to the defendants under the compulsion and coercion the defendants signed the disputed agreement dated 20-12-1980 and contents of the agreement were infact never admitted by the defendants. They also contended that the plaintiff had never asked for settlement of account of partnership business within three years after 1976 and as such the suit was not maintainable. Hence on all these grounds the defendants prayed for dismissal of the suit. Similar contentions were taken in the other suits filed by the plaintiff. Considering the pleadings of the parties the trial Court framed issues in the abovementioned three suits. As the parties to all the three suits were same, and they were filed on the basis of one agreement, parties passed joint pursis Exhibit 55 and requested to record the evidence in suit No. 11 of 1982 and to read the same in the other two suits. After considering the evidence adduced by both the parties the trial Court, came to the conclusion that plaintiff has failed to prove that the defendants have executed an agreement dated 20-12-1980 and accepted the liability. The trial court also denied the contention of the defendants that they executed an agreement in question due to undue influence and coercion. According to the trial court the agreement dated 20-8-1980 was not enforceable as it was in respect of amount barred by limitation and the acknowledgment was not within time. The trial Court therefore dismissed all the three suits. Being aggrieved by the judgment and order passed by the trial Court in the said suits, the original plaintiff filed three separate civil appeals. The Appellate court however, after hearing the arguments of both the learned advocates came to the conclusion that the order passed by the trial Court was legal and correct. He, therefore, dismissed all the three appeals. The original plaintiff therefore challenged the said orders of the First Appellate Court by filing these three second appeals.

(3.) From the perusal of the record it appears that while admitting the appeals this Court has passed the following order "heard Counsel. The basic grounds (i) , (ii) and (iii) are substantial. Particularly the ground one under section 25 (3). Admitted". Grounds (i) to (iii) are as under :