Madras High Court
K.Suresh Prabhu vs S.Ramesh on 17 August, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on 08.08.2022
Judgment pronounced on 17.08.2022
CORAM
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
Civil Suit(Comm.Div) No.183 of 2020
and
Civil Suit(Comm.Div)No.68 of 2021
K.Suresh Prabhu ... Plaintiff
(in C.S.No.183 of 2020 &
Defendant in C.S.No.68 of 2021)
vs.
S.Ramesh ... Defendant
(in C.S.No.183 of 2020 &
Plaintiff in C.S.No.68 of 2021)
PRAYER IN C.S.(Comm.Div)No.183 of 2020
The suit is filed under Order IV Rule 1 & 2 of the Madras High
Court Original Side Rules R/W Order VII Rule 1 of Code of Civil
Procedure, (a) praying to direct the defendant to pay a sum of
Rs.39,59,550/-(Rupees Thirty Nine Lakhs Fifty Nine Thousand Five
hundred and fifty only) together with interest @ 18% per annum from the
date of suit till the date of realization towards payment of interest/profit
share amounts for the months of December, 2017 to February,2020 (27
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C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
months x Rs.1,46,650/- per month) due and payable as per terms and
conditions of the Memorandum of Agreement dated 12.05.2017.
(b) Directing the defendant to pay a sum of Rs.7,80,000/-(Rupees
Seven Lakhs Eighty thousand Only) together with interest @ 18% per
annum from the date of suit till the date of realization towards Royalty
amounts for the months of January,2018 to February,2020(26 months x @
Rs.30,000/- per month due and payable as per terms and condition of the
Franchise Agreement dated 13.12.2017.
(c) Directing the defendant to pay a sum of Rs.1,40,00,000/-
(Rupees One Crores Forty lakhs only) together with interest @ 18% per
annum from the date of suit till the date of realization towards borrowed
loan amounts vide three promissory notes and confirmation letter cum
promissory note dated (i) 28.11.2018 Rs.40,00,000/- (ii) 10.01.2019
Rs.50,00,000/- (iii) 25.02.2019 Rs.45,00,000/- and (iv) 22.02.2020
Rs.5,00,000/- respectively.
(d) For permanent injunction restraining the defendant, his men,
agents, servants etc., from interfering and disturbing the plaintiff's peaceful
possession and running his business in the name and style of C3 Fitness
Science at No.11/1, Ritherdon Road, Vepery, Chennai – 600 007, and at
No.17, Lakshmi Street, Kilpauk, Chennai – 600 010 and morefully
described Scheduled hereunder and (e) To pay the costs of the suit.
PRAYER IN C.S.(Comm.Div)No.68 of 2021
The suit is filed under Order IV Rule 1 & 2 of the Madras High
Court Original Side Rules R/W Order VII Rule 1 of Code of Civil
Procedure, (a) praying to direct the defendant to pay a sum of
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C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
Rs.3,11,58,000/- (Rupees Three Crores Eleven Lakhs and Fifty Eight
thousand only) together with interest at 18% per annum from 17.04.2021 till
the date of realization.
(b) For permanent injunction restraining the defendant, his men,
agents, servants etc from interfering and disturbing the plaintiff's peaceful
possession and running his business in the name and style of ''C3 FITNESS
SCIECNE'', at No.11/1, Ritherdon Road, Vepery, Chennai – 600 010 and
morefully described in the schedule hereunder and (c) to pay the costs of
the suit.
For Plaintiff : Mr.K.S.Ganesh Babu
Assisted by P..Rajkumar
(Plaintiff in C.S.No.183 of 2020 &
Defendant in C.S.No.63 of 2021)
For Defendant : Mr.V.Balasubramani
(Plaintiff in C.S.No.68 of 20221 &
Defendant in C.S.No.183 of 2020)
COMMON JUDGMENT
In these two cross suits, the earlier suit, C.S.(Comm.Div)No.183 of 2020 was filed by Mr.K.Suresh Prabhu (Suresh Prabhu) against Mr.S.Ramesh (Ramesh) seeking to recover a sum of Rs.39,59,550/- towards interest for the months of December 2017 to February 2020 under the Memorandum of Agreement dated 12.05.2017 (the MoA); a sum of Rs.7,80,000/- together with interest at 18% per annum from the date of suit _____________ https://www.mhc.tn.gov.in/judis Page No.3 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 till the date of realization towards royalty for the months of January 2018 to February 2020 under the Franchise Agreement dated 13.12.2017 (the Franchise Agreement); a sum of Rs.1,40,00,000/- together with interest at 18% per annum from the date of suit till the date of realization towards recovery of amounts due and payable by the defendant against a loan provided by Suresh Prabhu to Ramesh; and for a permanent injunction to restrain Ramesh from interfering with Suresh Prabhu's peaceful possession and operation of business in the name and style of C3 Fitness Science at the centres in Vepery and Kilpauk.
2. C.S.(Comm.Div)No.68 of 2021 was filed subsequently by Ramesh against Suresh Prabhu for recovery of a sum of Rs.3,11,58,000/- together with interest at 18% per annum from 17.04.2021 until realization; and for a permanent injunction to restrain Suresh Prabhu from interfering with Ramesh's peaceful possession and operation of business in the name and style of C3 Fitness Science at the centres in Vepery and Kilpauk.
3. Suresh Prabhu stated the following. He established a fitness centre under the name and style of C3 Fitness Science. The said fitness _____________ https://www.mhc.tn.gov.in/judis Page No.4 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 centres functioned at New No.11/1, Ritherdon Road, Vepery, Chennai - 600 007 pursuant to Lease Deed dated 06.07.2017, and at No.17, Lakshmi Street, Kilpauk, Chennai - 600010 under Lease Agreement dated 30.09.2017. The necessary licenses were obtained in relation to the above mentioned fitness centres from the Greater Chennai Corporation, the Commissioner of Police and the Ministry of Micro, Small and Medium Enterprises. According to Suresh Prabhu, Ramesh runs a fitness centre in the name and style of M/s.UNIQUE ONE. In the year 2016, Ramesh approached Suresh Prabhu for a business loan of Rs.1,25,00,000/-. Suresh Prabhu advanced the above amount subject to the promise by Ramesh to repay the same with interest. According to Suresh Prabhu, Ramesh executed a promissory note in relation thereto and thereby agreed to repay the amount within one year or on demand.
4. Thereafter, in May 2017, it is stated that Ramesh approached Suresh Prabhu again for financial assistance to develop his fitness centre at New Washermenpet and Perambur. Pursuant to the MoA, Suresh Prabhu paid a sum of Rs.40,00,000/- to Ramesh and J.Poornima and S.Purushothaman paid a sum of Rs.10,00,000/- each. Ramesh agreed to pay _____________ https://www.mhc.tn.gov.in/judis Page No.5 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 a sum of Rs.1,46,650/- per month towards interest to Suresh Prabhu in relation to the above mentioned loans. Suresh Prabhu further stated that Ramesh had approached him in December 2017 for permission to use the trademark C3 Fitness Science for his fitness centre at Royapuram. Accordingly, the Franchise Agreement was executed and Ramesh agreed to pay a sum of Rs.30,000/- per month as royalty. Apart from the above, Suresh Prabhu stated that Ramesh had borrowed a sum of Rs.1,35,00,000/- from him between November 2018 and February 2019. In relation thereto, Ramesh executed three promissory notes: Promissory Note dated 28.11.2018 for Rs.40,00,000/-; Promissory Note dated 10.01.2019 for Rs.50,00,000/-; and Promissory Note dated 25.02.2019 for Rs.45,00,000/-. Suresh Prabhu further stated that Ramesh issued four post dated cheques towards repayment: cheque bearing cheque No.175682 dated 15.07.2020 for Rs.30,00,000/-; cheque bearing cheque No.175683 dated 15.08.2020 for Rs.35,00,000/-; cheque bearing cheque No.175684 dated 15.09.2020 for Rs.35,00,000/-; and cheque bearing cheque No.175685 dated 15.10.2020 for Rs.35,00,000/-. According to Suresh Prabhu, Ramesh once again requested him for a loan of Rs.20,00,000/- in February 2020. Four post dated cheques were issued in relation thereto by Suresh Prabhu. After paying a sum of _____________ https://www.mhc.tn.gov.in/judis Page No.6 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Rs.5,00,000/- towards the loan of Rs.20,00,000/-, further amounts were not released due to the onset of the COVID-19 pandemic.
5. Suresh Prabhu stated that he was shocked to receive an email of 17.04.2020 from Ramesh claiming that he invested 50% of the amounts towards the establishment and operation of C3 Fitness Science Centres at Vepery and Kilpauk. Suresh Prabhu asserts that the following are due and payable by Ramesh: interest on the loan under the MoA for the period December 2017 to February 2020; royalty under the Franchise Agreement for 26 months from January 2018 to February 2020; and a sum of Rs.1,40,00,000/- towards the amount borrowed by Ramesh along with interest thereon. He stated that the email referred to above was issued with a view to evade and delay payment of amounts due and payable by Ramesh to him. Likewise, it is stated that two notices dated 08.06.2020 were also issued by Ramesh to him with the same object and purpose. According to Suresh Prabhu, the claim made by Ramesh that a sum of Rs.2,70,00,000/- was payable by him to Ramesh by way of settlement and that, in the alternative, possession of the gyms at Vepery and Kilpauk should be handed over is against law and unsustainable. Suresh Prabhu stated that _____________ https://www.mhc.tn.gov.in/judis Page No.7 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 C.S.(Comm.Div)No.183 of 2020 was filed in the above facts and circumstances.
6. Ramesh stated as follows. He began his career in the fitness industry in the year 2002 and was appointed as a fitness trainer at various fitness centres. In July 2015, he started fitness centres under the name and style of M/s.UNIQUE ONE. Suresh Prabhu was a customer of the fitness centre called Fitness One between the year 2010 and March 2017. During that period, Suresh Prabhu was introduced to Ramesh in the year 2015. Thereafter, Suresh Prabhu along with one Ms.J.Poornima and Mr.S.Purushothaman advanced a sum of Rs.60,00,000/- to Ramesh for business development purposes. Ramesh agreed that he is required to repay the said sum within five years from 12.05.2017. Since he was not in a position to continue the business of C3 Fitness Science on account of his involvement with Fitness One, Ramesh stated that he requested Suresh Prabhu to ostensibly run the business of C3 Fitness Science at Vepery and Kilpauk. According to Ramesh, there was a mutual understanding between him and Suresh Prabhu by which each would invest a sum of Rs.3,00,00,000/- towards the operation of the C3 Fitness Science Centres at Vepery and Kilpauk.
_____________ https://www.mhc.tn.gov.in/judis Page No.8 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
7. Pursuant to such mutual understanding, Ramesh stated that he remitted an aggregate sum of Rs.1,88,69,000/- towards part contribution of his share through bank channels between 04.07.2017 and 18.05.2018. The details relating thereto were set out in tables at paragraph 10 of plaint in C.S.(Comm.Div)No.68 of 2021. Ramesh further stated that he paid a sum of Rs.1,12,00,000/- to Suresh Prabhu towards payment for the purchase of furniture, fixtures, equipment and interior decoration. Ramesh stated that Suresh Prabhu did not maintain and provide proper accounts. Upon discovering the same, he stated that he called upon Suresh Prabhu to provide proper accounts. This resulted in a dispute between them.
8. Eventually, he stated that a settlement was reached upon negotiation in the month of February 2020 and that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- as full and final settlement. The said amount was agreed to be paid on or before 31.06.2020. As profit share in relation thereto, Suresh Prabhu agreed to pay a sum of Rs.20,00,000/- and issued four cheques: cheque No.832543 dated 22.02.2020 for Rs.5,00,000/-; cheque No.832544 dated 22.03.2020 for Rs.5,00,000/-; cheque No.832545 dated 22.04.2020 for Rs.5,00,000/-; and cheque No.832546 dated _____________ https://www.mhc.tn.gov.in/judis Page No.9 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 22.05.2020 for Rs.5,00,000/-. Upon presentation of cheque No.832544 dated 22.03.2020 for Rs.5,00,000/-, the said cheque was dishonoured with the endorsement ''payment stopped by the drawer''. Therefore, Ramesh issued a lawyer's notice under Section 138 of the Negotiable Instruments Act,1881(the NI Act) and called upon Suresh Prabhu to pay the value of the dishonoured cheque and also make payment of a sum of Rs.2,70,00,000/-. Suresh Prabhu failed to make payments and instead took over the office of Ramesh at the Fitness Centres at Vepery and Kilpauk and also removed documents and cheques of Ramesh from the said office. C.S.(Comm.Div) No.68 of 2021 was filed in the said facts and circumstances.
9. Upon completion of pleadings, the following issues were framed in C.S.(Comm.Div)No.183 of 2020:
(i) Whether the defendant was the owner of the two business centers and it was handed over to the plaintiff only to maintain the same?
(ii) Whether the defendant had made any contributions to run the business centers along with the plaintiff?
(iii) Whether the plaintiff has established through any materials that there was a contractual _____________ https://www.mhc.tn.gov.in/judis Page No.10 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 obligation on the part of the defendant to make the payments to the plaintiff?
(iv)Whether the plaintiff is entitled to recover the profit share as per the memorandum of agreement dated 12.05.2017?
(v) Whether the plaintiff is entitled to recover money from the defendant as per the terms and conditions of the Franchise Agreement dated 13.12.2017?
(vi) Whether the plaintiff is entitled to recover money for the amounts borrowed by the defendant under various promissory notes executed by the defendant ?
(vii) To any other reliefs the parties are entitled to?
10. The following issues were framed in C.S.(Comm.Div)No.68 of 2021:
(i) Whether the plaintiff has substantiated the claim made against the defendant through the materials relied by the plaintiff?
(ii) Whether the defendant is not liable to make any payment to the plaintiff?
_____________ https://www.mhc.tn.gov.in/judis Page No.11 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
(iii) Whether the plaintiff is entitled for recovery of amount from the defendant?
(iv) To what other reliefs the parties are entitled to?
The following additional issue was framed later in C.S.(Comm.Div) No.183 of 2020:
(i) Whether the plaintiff is entitled for the relief of permanent injunction sought for against the defendant?
The following additional issue was framed later in C.S.(Comm.Div)No.68 of 2021:
(i) Whether the plaintiff is entitled for the relief of permanent injunction sought for against the defendant?
11. After framing issues, the court directed a joint trial in the two suits because of the inter-connected issues. Suresh Prabhu (plaintiff in C.S.(Comm.Div)No.183 of 2020) examined himself as P.W.1. In course of examination-in-chief of Suresh Prabhu, 53 documents were exhibited as Exs.P1 to P53. P.W.1 was cross-examined by learned counsel for Ramesh. _____________ https://www.mhc.tn.gov.in/judis Page No.12 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Subsequently, pursuant to order dated 01.07.2022, the evidence of Suresh Prabhu was reopened and he was recalled. At that juncture, Exs.P54 and P55 were marked. Ramesh (plaintiff in C.S.(Comm.Div)No.68 of 2021) examined himself as P.W.1. In course of the examination-in-chief of Ramesh, 111 documents were exhibited as Exs.P1 to P111. Ramesh was cross examined by the learned counsel for Suresh Prabhu. Oral arguments were advanced on behalf of Suresh Prabhu by Mr. K.S.Ganesh Babu, learned counsel; and on behalf of Ramesh by Mr.V. Balasubramani, learned counsel. The parties also submitted written arguments.
12. Learned counsel for Suresh Prabhu stated that Suresh Prabhu extended a loan of Rs.40,00,000/- to Ramesh under the MoA and that interest at Rs.1,46,650/- is due and payable on monthly basis in respect thereof. His next submission was that the Franchise Agreement was executed by Ramesh and Suresh Prabhu and that a sum of Rs.30,000/- per month is payable as royalty in terms thereof. He also pointed out that a loan of Rs.1,35,00,000/- was granted by Suresh Prabhu to Ramesh and that this loan was secured by three promissory notes issued between 28.11.2018 and 25.02.2019. He stated that the loan was given in the form of cash. The said _____________ https://www.mhc.tn.gov.in/judis Page No.13 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 loan carried interest and interest payments were made up to November 2017. He also stated that Ramesh issued cheque dated 15.07.2020 for Rs.30,00,000/-, cheque dated 15.08.2020 for Rs.35,00,000/-, cheque dated 15.09.2020 for Rs.35,00,000/- and cheque dated 15.10.2020 for Rs.35,00,000/- towards repayment of the loan. By referring to the statements of account from the Indian Overseas Bank in relation to Saving Bank Account No.273802000000333 and Current Account No.273802000009333 at Indian Overseas Bank, he contended that the said bank statements, which were exhibited as Exs.P54 and P55, evidence the financial capability of Suresh Prabhu to provide the loan to Ramesh.
13. Learned counsel for Ramesh refuted the above contentions. His first submission was that Suresh Prabhu extended a loan of Rs.40,00,000/- to Ramesh under the MoA. Apart from the said loan, he submitted that no further loans were given by Suresh Prabhu to Ramesh. His next submission was that Ramesh had entered into a franchise agreement with Fitness One and that the said agreement prevented Ramesh from running any other fitness centre. Therefore, Ramesh entered into an arrangement with Suresh Prabhu, whereby Suresh Prabhu would function _____________ https://www.mhc.tn.gov.in/judis Page No.14 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 as the ostensible owner and face of the business. However, the real owners of the business were both Suresh Prabhu and Ramesh. As part of the understanding, each party was required to contribute about Rs.3,00,00,000/- towards the business. Towards Ramesh's share, he remitted a sum of Rs.1,89,69,000/- as per details set out in paragraph 10 of the plaint in C.S.(Comm.Div)No.68 of 2021. In addition, a sum of about Rs.1,13,00,000/- was paid towards furniture, fixtures and equipments. The installation report in such regard was relied upon. Learned counsel also referred to an exhibit evidencing payment of a sum of Rs.68,69,490/- towards the interiors of the fitness centres at Vepery and Kilpauk.
14. Pursuant to negotiations in February 2020, he stated that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- to Ramesh as consideration for Ramesh exiting the business. Learned counsel submitted that Suresh Prabhu filed the suit after Ramesh lodged a police complaint and that the correspondence between the parties does not corroborate the completely false version of Suresh Prabhu that he provided a loan of Rs.1,35,00,000/- to Ramesh. By drawing reference to the cross examination of Suresh Prabhu and, in particular, the answers to questions 19,21,36,37,38,39 and 72, learned counsel submitted that the cheques were _____________ https://www.mhc.tn.gov.in/judis Page No.15 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 taken from Ramesh's cabin at the C3 Fitness Science Centre. For all these reasons, learned counsel stated that the suit claim of Suresh Prabhu is liable to be rejected whereas the suit claim of Ramesh is liable to be allowed.
15. By way of rejoinder, learned counsel for Suresh Prabhu submitted that the relief of permanent injunction in C.S.(Comm.Div)No.68 of 2021 is unsustainable in law because Suresh Prabhu is admittedly in possession. His next submission was that the alleged agreement between Ramesh and Fitness One was prior to the MoA under which a sum of Rs.40,00,000/- was borrowed by Ramesh. With reference to the trademark certificate obtained by Ramesh, he submitted that such certificate was obtained by making the false statement that Ramesh had used the mark C3 Fitness Science from 07.05.2015. With reference to the alleged settlement by which Suresh Prabhu agreed to pay Ramesh a sum of Rs.2,55,00,000/-, he stated that there was no reference thereto in the complaint filed by Ramesh before the police. By drawing reference to the cross examination of Ramesh and, in particular, questions 19 to 22, 27,28,35 and 75, he stated that there is no evidence whatsoever that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- to Ramesh.
_____________ https://www.mhc.tn.gov.in/judis Page No.16 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
16. By way of a short response, learned counsel for Ramesh submitted that the story that a loan was extended is completely improbable. There was no demand for repayment of the alleged loan. As regards equipment purchase, he submitted that the email I.D. and phone number provided in the relevant document is that of Ramesh.
Issue No.6 in C.S.(Comm.Div)No.183 of 2020
17. Issue No. 6 relates to whether Suresh Prabhu is entitled to recover the sum of Rs.1.4 crores allegedly borrowed by Ramesh under various promissory notes allegedly executed by Ramesh. At the outset, it should be noticed that Ramesh admits the signature on the promissory notes (question and answer 75 during his cross-examination) but states that the promissory notes were misused and are not supported by consideration. Under Section 118 of the NI Act, there is a non-discretionary (shall presume) statutory presumption, inter alia, with regard to both the date of execution and the consideration stipulated in a promissory note. Section 118 of the NI Act is as follows:
_____________ https://www.mhc.tn.gov.in/judis Page No.17 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 ''118. Presumptions as to negotiable instruments. — Until the contrary is proved, the following presumptions shall be made:—
(a) of consideration — that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date — that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements — that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.'' _____________ https://www.mhc.tn.gov.in/judis Page No.18 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
18. As in the case of all statutory presumptions, the presumption is rebuttable. The Hon'ble Supreme Court instructs in Bharat Barrel and Drum Mfg.Co. v. Amin Chand Pyarelal 1999(1) CTC 497(Bharat Barrel) that the presumption would stand rebutted if the existence of consideration is so improbable that a prudent person would not accept the fact that there is consideration. In Bharat Barrel, the Hon'ble Supreme Court referred to the judgment of the Full Bench of the Rajasthan High Court in Heerachand v. Jeevrai and another, AIR 1959 Raj. 1 and other relevant judgments, before holding as under in paragraph 14:
''14.Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the _____________ https://www.mhc.tn.gov.in/judis Page No.19 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.''
19. Learned counsel for Ramesh pointed out the following to substantiate that the alleged loan of Rs.1.4 crore was not received by Ramesh. While the admitted loan of Rs.40 lakhs was in terms of the MoA _____________ https://www.mhc.tn.gov.in/judis Page No.20 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 and was by way of cheques, there is no agreement supporting the alleged loan. There are no letters or emails or communications in relation to the provision of the loan or demanding repayment thereof. These contentions are borne out by the evidence on record and are sufficient to shift the burden on Suresh Prabhu. In order to establish that loans were provided by Suresh Prabhu to Ramesh, apart from the promissory notes, cheques and confirmation letter (Exs. P14-21 in C.S.183 of 2020), Suresh Prabhu applied for and obtained permission to reopen evidence and, thereafter, exhibited the bank statements pertaining to his savings bank account and current account with the Indian Overseas Bank(Ex.P54 and 55). Therefore, the said statements and the evidence relating thereto should be examined closely.
20. The contention of Suresh Prabhu is that the loans were extended between 28.11.2018 and 25.02.2019 by way of cash. To begin with, it is difficult to believe that such large amounts were given as loans in the form of cash. It is not without reason that the law does not permit a person to extend cash loans of such magnitude. Even going by past conduct, Suresh Prabhu extended a loan of Rs.40 lakhs in 2017 by issuing two cheques that were drawn on his account with the Indian Overseas Bank. Assuming such a large loan was given in cash, at a minimum, there should _____________ https://www.mhc.tn.gov.in/judis Page No.21 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 be communications by way of letters, emails or even whatsapp messages relating to the request for or provision of the loan. Admittedly, no such communication is on record. Although the loan was allegedly given between end 2018 and early 2019, the first communication that refers to the loan is the email dated 18.04.2020 from Suresh Prabhu to Ramesh in response to Ramesh's email of 17.04.2020 alleging that Suresh Prabhu had not provided proper accounts to Ramesh as regards the fitness centres in which he had invested 50%. This is admitted in response to question 29 in cross- examination. The said question and answer are set out below:
“Q29:I put it to you that the Ramesh did not borrow any money from you that is why you did not demand the amount from Ramesh from 2017 until Ramesh had demanded the amount from you on 08.06.2020. What do you say?
A: I sent Email on 18.04.2020 asking money to Ramesh and the details were given in the said Email regarding the payment due from Ramesh.” _____________ https://www.mhc.tn.gov.in/judis Page No.22 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
21. Turning to the savings bank account statement for the period from 01.10.2018 to 28.02.2019, this statement discloses debits from the bank account during the said period. Several debits indicate the person in whose favour the debit was made, be it by way of some form of electronic transfer or otherwise. In addition, it discloses self-withdrawals. The self- withdrawals are under cheques for sums ranging from Rs.2 lakhs to Rs.10 lakhs. A similar pattern is noticeable as regards the current account of Suresh Prabhu except that the amount withdrawn in one tranche goes up to a maximum of Rs.20 lakhs. The pattern of these debits should be compared with the oral evidence of Suresh Prabhu in order to test and draw conclusions on the veracity of the claim that a large loan was given. In paragraph 5 of the proof affidavit, Suresh Prabhu stated that a loan of Rs.1.25 crore was given, whereas, in response to Q.14, he stated that a loan of Rs.1.35 crore was given. In a further contradiction, a sum of Rs.1.4 crore is claimed in the suit. Questions 36 and 37 and the answers thereto are significant and are, therefore, set out below:
“Q36: Can you say in which year specifically Ramesh borrowed a sum of Rs.1,35,00,000/- from you?
_____________ https://www.mhc.tn.gov.in/judis Page No.23 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 A: In November 2018 Rs.40,00,000/-, in January, 2019 50 Lakhs and February 2019 45 Lakhs. I have also received promissory note for the same.
Q37: Can you tell the mode of payment made by you to Ramesh for the aforesaid amount on different dates?
A: I have given the aforesaid amount Rs.1,35,00,000/-
in three dates only by ready cash as demanded.”
22. Thus, the oral evidence of Suresh Prabhu is that the loan was given in three tranches on 28.11.2018 (Rs.40,00,000/-), 10.01.2019 (Rs.50,00,000/-) and 25.02.2019 (Rs.45,00,000/-). Across the two bank statements, the aggregate withdrawal in January 2019 is Rs.4,50,000/-. As against this, the claim is that a sum of Rs.50,00,000/- was loaned in cash in January 2019. Besides, all the withdrawals are under self cheques for amounts far smaller than the loan tranches with no credible explanation for not issuing cheques in favour of Ramesh. Moreover, the withdrawal of amounts from a bank account by the account holder does not establish that loans were given to Ramesh. Even if loans were extended without _____________ https://www.mhc.tn.gov.in/judis Page No.24 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 executing a loan agreement or any other formal document, ordinary human conduct is to engage in communication relating to the provision of the loan and the terms of repayment. The evidence on record in this case discloses the complete absence of communication between the parties during the period November 2018 to end February 2019, when such loans were allegedly provided by Suresh Prabhu to Ramesh. According to Suresh Prabhu, the loans were not repaid by Ramesh and that this necessitated the filing of this case. Once again, normal human behavior would be to call upon the defaulter to repay the amounts. Except for the email of 18.04.2020 in response to the email of 17.04.2020 from Ramesh, any communication by which Suresh Prabhu called upon Ramesh to repay the amounts is conspicuous by its absence. In light of the evidence on record, the only reasonable inference is that the existence of consideration for the promissory notes is highly improbable. In spite of permitting Suresh Prabhu to re-open the evidence so as to enable him to adduce additional evidence in the course of final arguments in the suit, Suresh Prabhu completely failed to establish the probability of consideration. Therefore, Issue No.6 is decided in favour of Ramesh and against Suresh Prabhu.
_____________ https://www.mhc.tn.gov.in/judis Page No.25 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Issue Nos.1 & 2 in C.S.(Comm.Div)No.183 of 2020
23. Issue No.1 relates to whether Ramesh is the owner of the two business centres and handed over the same to Suresh Prabhu for maintenance. Issue No.2 relates to whether Ramesh made any contributions to run the business centres. According to Ramesh, he was not in a position to openly associate himself with the C3 Fitness Science Centres in view of Clause 19 of the franchise agreement entered into by him with Fitness One. Therefore, he stated that an understanding was reached with Suresh Prabhu whereby Suresh Prabhu would be the face of the fitness centres at Vepery and Kilpauk. Since the said centers were to be jointly owned and managed by Suresh Prabhu and Ramesh, according to Ramesh, each partner was to contribute Rs.3,00,00,000/-. With regard to Ramesh's contribution, he relied on payments made through bank channels. In particular, Exs.P65 to P70, which are statements pertaining to accounts maintained at Axis Bank(Account No.917020023640251 and 915020060275249) and ICICI Bank (Account No.406805500032), were relied upon. On that basis, Ramesh asserted that an aggregate sum of Rs.1,88,69,000/- was remitted by him. As is evident from his answer to question 79 in cross-examination, Suresh Prabhu admitted receipt of this amount but claimed that this amount _____________ https://www.mhc.tn.gov.in/judis Page No.26 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 was remitted towards repayment of amounts owed by Ramesh to Suresh Prabhu. The said question and answer are set out below:
“Q79: I put it to you that Ramesh had given his share amount of Rs.1,88,69,000/- through bank account and the balance Rs.1,12,00,000/- was paid towards interior work for Vepery and Kilpauk branch. What do you say?
A.: I deny. Witness adds: The amount which was owed to me was paid to me. No interior work was done by Ramesh”
24. While recording findings on issue No.6, it was concluded that the promissory notes in favour of Suresh Prabhu were not supported by consideration. Consequently, it was held that Ramesh is not liable in respect of the alleged loan of Rs.1,35,00,000/-. As a corollary, the defence of Suresh Prabhu is untenable and liable to be rejected. Since Suresh Prabhu admits receipt of the aggregate sum of Rs.1,88,69,000/-, as regards the said sum, Ramesh has established that he contributed the said sum. In addition, Ramesh asserted that he contributed a sum of Rs.1,12,00,000/- towards _____________ https://www.mhc.tn.gov.in/judis Page No.27 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 payment for interior decoration and other expenses. In order to establish this assertion, Ramesh relied upon installation reports, invoices and delivery challans relating to the purchase of equipments for the fitness centres. The said documents were exhibited as Exs.P30 to P43. In addition, Ramesh relied upon vouchers relating to expenses incurred for the fitness centres and these documents were exhibited as Exs.P45 to P61. On perusal of the installation reports that were exhibited as Exs.P30 and P31, it is noticeable that the name of the customer is indicated as C3 Fitness Science at Vepery. The name of the contact person is mentioned as Mr.Ramesh and his mobile number and email address is specified. Significantly, Ramesh has signed these installation reports as the customer. The invoices, however, bear the name of C3 Fitness Science and the name of Suresh Babu (probably an inadvertent error instead of Suresh Prabhu) is mentioned therein. With regard to expenditure incurred towards the interiors of the fitness centres, Ramesh relied upon the estimate for a sum of Rs.68,67,490/-. This document was exhibited as Ex.P45. The only cross examination with regard to the payment of the sum of Rs.1,12,00,000/- is by way of suggestions. These suggestions were recorded as questions 84 to 86. All the suggestions were denied by Ramesh by stating, for instance, in response to question 84, _____________ https://www.mhc.tn.gov.in/judis Page No.28 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 that he paid a sum of Rs.1,12,00,000/- for purchasing equipments and for expenses relating to interior decoration.
25. The documentary and oral evidence placed on record establishes that Ramesh contributed a sum of Rs.1,88,69,000/- and additional amounts towards purchase of equipment and interior work. Thus, Issue No.2 is decided in favour of Ramesh and against Suresh Prabhu. As regards Issue No.1, Ramesh's case is that both Suresh Prabhu and Ramesh were the owners of the fitness centres at Vepery and Kilpauk and that Ramesh was not in a position to front-end the operations. As noticed earlier, the installation reports in relation to the purchase of equipment for the gym contain the name, telephone number, email address and signature of Ramesh. When the admitted remittance of Rs.1,88,69,000/- is considered along with the evidence on installation of equipment and bank statements evidencing payments towards purchase of equipments and interior work, the only reasonable conclusion that can be drawn is that Ramesh was an important stakeholder in the fitness centres and, therefore, made significant contributions to the operation thereof. However, Suresh Prabhu exhibited in the suit filed by him, lease deeds(Exs.P9 and P10), rental invoices(Exs.P11 _____________ https://www.mhc.tn.gov.in/judis Page No.29 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 and P13 series) and invoices relating to purchase of equipment for the Vepery and Kilpauk centres(Exs.P50 and P51). Therefore, it cannot be concluded that Ramesh was the sole owner thereof and that he handed over the fitness centres to Suresh Prabhu only for purposes of operating and maintaining the same. Issue No.1 is disposed of in the above terms.
Issue Nos.1, 2 & 3 in C.S.(Comm.Div)No.68 of 2021
26. Issue Nos.1, 2 and 3 relate to whether Ramesh has substantiated the claim of Rs.3,11,58,000/- against Suresh Prabhu, whether Suresh Prabhu is liable to make payments to Ramesh and Ramesh's entitlement thereto. Since these issues are inter-related, they are dealt with jointly. Ramesh asserted that a settlement was reached between Suresh Prabhu and him and that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- to Ramesh on or before 30.06.2020 along with a further sum of Rs.20,00,000/- as interest profit share (sic) as consideration for Ramesh exiting from the fitness centres jointly owned by them. The admitted position is that there is no documentary evidence with regard to an agreement for payment of the above mentioned amount by Suresh Prabhu to Ramesh. In the absence of documentary evidence, the oral evidence merits careful consideration. Ramesh made the above assertion in the proof _____________ https://www.mhc.tn.gov.in/judis Page No.30 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 affidavit at paragraph 20. Ramesh also asserted at paragraph 22 of the proof affidavit that Suresh Prabhu issued four cheques for an aggregate sum of Rs.20,00,000/- towards part payment of the settlement amount of Rs.2,55,00,000/-. It was further stated that one cheque for Rs.5,00,000/- was cleared but that the next cheque was returned with the endorsement ''payment stopped by the drawer''. In course of cross examination, the following questions were put to Ramesh and both the questions and answers are set out below:
''Q27: To show that in February, 2020 there was a negotiation in which Suresh Prabhu agreed to pay Rs.2,55,00,000/- as full and final settlement on or before 30.06.2020 is there any documentary proof?
A: There is no written documentary proof but it was only an oral commitment.
Q28: Is there any written document to show that the four cheques each for Rs.5 Lakhs were given towards the profit share of Rs.20 Lakhs by Suresh Prabhu?
A : No documentary evidence is available except the above said cheques.'' _____________ https://www.mhc.tn.gov.in/judis Page No.31 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
27. Based on the evidence on record, it is not possible to conclude that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- to Ramesh as consideration for Ramesh exiting from joint ownership and management of the C3 Fitness Science Centres at Vepery and Kilpauk. The limited evidence on record indicates that four cheques were issued for Rs.5,00,000/- each and that one cheque was honoured, whereas the others were not. Thus, it appears that Suresh Prabhu agreed to pay certain amounts to Ramesh but the evidence on record is insufficient to draw any rational conclusions with regard to the aggregate settlement amount. In the absence of such evidence, these issues are decided in favour of Suresh Prabhu and against Ramesh.
Issue Nos. 3 and 4 in C.S.(Comm.Div)No.183 of 2020
28. Suresh Prabhu claimed interest in relation to the loan of Rs.40,00,000/- extended under the MoA. Ramesh admits receipt of a sum of Rs.40,00,000/- as loan from Suresh Prabhu under the said agreement. On examining the MoA, it is clear that Clause 4 thereof deals with the liability of Ramesh with regard to interest. The said Clause is as under:
''4. Further the Party of the First Part has agreed to pay Rs.1,46,650/- (Rupees One lakh forty six thousands six hundred and fifty only) per month (after deducting applicable TDS) to Mr.Sureshprabhu as and _____________ https://www.mhc.tn.gov.in/judis Page No.32 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 towards interest/profit share towards his investment and the said amount will be paid or or before 10th of every month.'' In the plaint in C.S.(Comm.Div)No.183 of 2020, Suresh Prabhu asserted that Ramesh did not pay this sum from December 2017 to February 2020.
Therefore, an aggregate sum of Rs.39,59,550/- was claimed. The execution of the MoA and receipt of the sum of Rs.40,00,000/- is admitted by Ramesh.
Indeed, Ramesh admits this interest liability in answer to questions 65 to 67 in cross-examination and the relevant deposition is set out below:
“Q65: According to Ex.P5 in CS 183/2020 you have to pay Rs.1,46,650/- per month Suresh Prabhu towards interest?
A: Yes.
Q66: Is it correct that the above said amount of Rs.1,46,650/- was paid by you till the month of November, 2017?
A: Yes from my account I have paid Q67: You have not paid from December, 2017 to till date?
_____________ https://www.mhc.tn.gov.in/judis Page No.33 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 A: From December, 2017 Suresh Prabhu started to adjust the said amount from the profit share due to be paid to me from Vepery and Kilpauk centres till I settled the entire amount.”
29. While Ramesh contends that Suresh Prabhu adjusted this amount from and out of the revenues of the fitness centres, in the absence of evidence, the said contention cannot be accepted. Suresh Prabhu claimed interest at 18% per annum on the claim of Rs.39,59,550 from the date of plaint until realisation. In effect, interest is claimed on an interest claim. Ordinarily, interest liability is specified at an agreed rate and not at a specified and quantified sum per month. In this case, however, the interest liability is quantified and expressed in a lump-sum per month. This lump- sum per month is at a rate that exceeds 36% per annum and the MoA does not provide for further interest. By considering these aspects, no further interest is granted on this claim. Therefore, Issue Nos.3 and 4 are decided in favour of Suresh Prabhu and against Ramesh.
_____________ https://www.mhc.tn.gov.in/judis Page No.34 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Issue No.5 in C.S.(Comm.Div)No.183 of 2020
30. Issue No.5 relates to whether Suresh Prabhu is entitled to receive payments under the Franchise Agreement. While the suit claim pertains to one franchise agreement, two franchise agreements are on record as Ex.P6 and P7. Ex. P6 is the Franchise Agreement dated 13.12.2017 for men and Ex.P7 is the corresponding agreement of even date for women. These agreements are between C-3 Fitness Science and M/s.UNIQUE ONE, represented by its proprietor, Mr.S.Ramesh. Both agreements contain identical terms and provide that Ramesh is appointed as the franchisee and that he is liable to pay Suresh Prabhu a non-refundable franchise fee of Rs.5,00,000/- and royalty of Rs.30,000/- per month with regard to the premises at Royapuram, Chennai. Apart from the said Franchise Agreements and an invoice dated 31.12.2017(Ex.P8), Suresh Prabhu has not placed any evidence on record that this agreement was acted upon. As regards Ex.P8, there is no proof of despatch thereof or of receipt by Ramesh. Indeed, there is no evidence on record with regard to even the payment of the non- refundable franchise fee of Rs.5,00,000/-. The suit claim in relation to the Franchise Agreement is for an aggregate sum of Rs.7,80,000/- with interest thereon at 18% per annum towards royalty for the months of January 2018 _____________ https://www.mhc.tn.gov.in/judis Page No.35 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 to February 2020. Questions 53 and 58 and the answers thereto, in cross- examination, of Suresh Prabhu are set out below:
“Q53: Whether Ramesh had given the said amount properly monthwise?
A: Only one month a sum of Rs.30,000/- was given.
Q58: Whether you have claimed royalty amount for the period from 2017 to 2020 since only one month royalty amount was paid by Ramesh?
A: I have demanded monthly royalty amount from Ramesh but Ramesh informed me that the amount would be paid later.”
31. Thus, although there are two agreements (Ex.P6 and 7) with identical terms, the suit claim is confined to one agreement with no rational explanation. Questions 54 to 57 and the answers thereto of Suresh Prabhu in cross-examination are relevant in this regard. Besides, as is evident from the answer to question 58, there is no documentary evidence on record that royalty payments were demanded before the suit was filed. In the absence of any evidence that the agreements were acted upon by the parties, Suresh _____________ https://www.mhc.tn.gov.in/judis Page No.36 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Prabhu is not entitled to this amount. Accordingly, Issue No.5 is decided against Suresh Prabhu and in favour of Ramesh.
Additional Issues on injunctive relief:
32. As discussed earlier, the evidence on record leads to the inference that the two parties were joint stakeholders in the C3 Fitness Science Centres at Vepery and Kilpauk. The evidence further discloses that substantial amounts were invested by Ramesh in such regard. However, Ramesh failed to prove that Suresh Prabhu agreed to purchase Ramesh's stake in the business for a sum of Rs.2,55,00,000/-. Consequently, both Ramesh and Suresh Prabhu are entitled to jointly manage the two centres. Suresh Prabhu contended that Ramesh is admittedly not in possession and that he is entitled to injunctive relief as the party in possession. However, the injunctive relief claimed by Ramesh extends to non-interference in the operation of the business. Even as regards access for such purpose, as the co-stakeholder, Ramesh is entitled to use the premises and Suresh Prabhu cannot deny or impede access to the C3 Fitness Science Centres at Vepery and Kilpauk. Consequently, neither party is entitled to an injunction restraining the other from interfering with possession or the business. _____________ https://www.mhc.tn.gov.in/judis Page No.37 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021
33. In the result, C.S.(Comm.Div)No.183 of 2020 is partly decreed as regards prayer (a) in paragraph 28 to the extent of the principal claim of Rs.39,59,550/- albeit by rejecting the further interest claim thereon. Prayers (b) to (d) are rejected. C.S.(Comm.Div)No.68 of 2021 is dismissed. Since the suit claim of Suresh Prabhu was allowed only with regard to one relief and several findings in favour of Ramesh were recorded, the parties shall bear their respective costs.
17.08.2022 Index : Yes Internet : Yes rrg Plaintiff's witness in C.S.(Comm.Div)No.183 of 2020
1.Mr.K.Suresh Prabhu : P.W.1 Plaintiff's witnesses in C.S.(Comm.Div)No.68 of 2021:
1.Mr.S.Ramesh : P.W.1 Documents exhibited by the Plaintiff in C.S.(Comm.Div)No.183 of 2020:
S.No Exhibits Date Particulars of Documents
1. Ex.P1 22.12.2017 Original GST Registration Certificate
2. Ex.P2 28.06.2017 Original Udyog Aadhaar Memorandum
3. Ex.P3 28.02.2019 Original Gym License(series 3 Nos)
4. Ex.P4 01.01.2019 Original License (Series) _____________ https://www.mhc.tn.gov.in/judis Page No.38 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No Exhibits Date Particulars of Documents
5. Ex.P5 12.05.2017 Original Memorandum of Agreement
6. Ex.P6 13.12.2017 Original Franchise Agreement for men
7. Ex.P7 13.12.2017 Original Franchise Agreement for women
8. Ex.P8 31.12.2017 Original Franchise Invoice
9. Ex.P9 06.07.2017 Original Lease Deed
10. Ex.P10 06.10.2020 Photo copy of the Lease Deed
11. Ex.P11 - Original rental invoice multiple dates(series)
12. Ex.P12 - Original Lease Agreement(5nos) Multiple dates (series)
13. Ex.P13 - Original rental invoice multiple dates(series)
14. Ex.P14 28.11.2018 Original Promissory Note
15. Ex.P15 10.01.2019 Original Promissory Note
16. Ex.P16 25.02.2019 Original Promissory Note
17. Ex.P17 15.07.2020 Original Cheque with memo
18. Ex.P18 15.08.2020 Original Cheque
19. Ex.P19 15.09.2020 Original Cheque
20. Ex.P20 15.10.2020 Original Cheque
21. Ex.P21 22.02.2020 Original confirmation letter cum promissory note.
22. Ex.P22 08.06.2020 Photocopy of the notice
23. Ex.P23 08.06.2020 Original Notice
24. Ex.P24 17.06.2020 Original Common Reply Notice
25. Ex.P25 - Acknowledgment card & returned cover
26. Ex.P26 04.08.2020 Original rejoinder
27. Ex.P27 - Print out emails with 65B certificate of affidavit
28. Ex.P28 24.07.2020 Copy of the plaint in C.S.(Comm.Div)No.183 of 2020
29. Ex.P29 24.07.2020 Common Affidavit in O.A.No.302 of 2020 and A.No.1652 of 2020
30. Ex.P30 24.07.2020 Copy of judges summons in O.A.No.302 of 2020
31. Ex.P31 24.07.2020 Copy of judges summons in A.No.1652 of 2020
32. Ex.P32 14.08.2020 Original order in C.S.(Comm.Div)No.183 of 2020 _____________ https://www.mhc.tn.gov.in/judis Page No.39 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No Exhibits Date Particulars of Documents
33. Ex.P33 11.09.2020 Original order in C.S.(Comm.Div)No.183 of 2020
34. Ex.P34 11.09.2020 Original order in O.A.No.302 of 2020
35. Ex.P35 12.09.2020 Original C.S.R.No.241 of 2020
36. Ex.P36 19.09.2020 Original C.S.R.No.206 of 2020
37. Ex.37 31.10.2020 Copy of written statement
38. Ex.P38 31.10.2020 Copy of counter affidavit
39. Ex.P39 23.11.2020 Copy of Application No.13 of 2021
40. Ex.P40 04.01.2021 Counter affidavit in Application No.13 of 2021
41. Ex.P41 10.03.2021 Copy of Impugned common orders
42. Ex.P42 10.03.2021 Copy of Impugned common decree
43. Ex.P43 24.07.2021 C.S.R.No.343 of 2021
44. Ex.P44 25.07.2021 C.S.R.No.427 of 2021
45. Ex.P45 29.07.2021 Copy of notice with Acknowledgment due
46. Ex.P46 17.08.2021 Original common orders in OSA.No.182 & 213 of 2021
47. Ex.P47 - Plaint in C.S.(Comm.Div)No.41 of 2021
48. Ex.P48 - Written statement in C.S.(Comm.Div)No.41 of 2021.
49. Ex.P49 - Photos & original CD (series)
50. Ex.P50 - Tax invoices and multiple date
51. Ex.P51 - Tax invoices and multiple dates
52. Ex.P52 - Tax invoices and multiple dates
53. Ex.P53 - Original Bank Pass Book
54. Ex.P54 24.06.2022 Statement of account issued by the Plaintiff's Banker saving account Indian Overseas Bank from 01.10.2018 to 2019
55. Ex.P55 24.06.2022 Statement of account issued by the Plaintiff's banker 28.06.2022 current account M/s.C3 Fitness Science from 01.01.2018 to 31.01.2018 & 01.10.2018 to 28.02.2019 _____________ https://www.mhc.tn.gov.in/judis Page No.40 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 Documents exhibited by the Plaintiff in C.S.(Comm.Div)No.68 of 2021:
S.No. Exhibits Date Particular of Deocuments
1. Ex.P1 03.10.2004 Photocopy of the certificate of participation
2. Ex.P2 07.03.2009 Photocopy of the certificate of merit
3. Ex.P3 22.03.2009 Photocopy of the certificate of Honour
4. Ex.P4 24.05.2009 Photocopy of the Merit certificate
5. Ex.P5 02.08.2009 Photocopy of the certificate of Honour
6. Ex.P6 25.10.2009 Photocopy of the certificate of merit
7. Ex.P7 - Photocopy of the participations and secure placement in the fitness competition photos
8. Ex.P8 13.08.2010 Photocopy of the appointment letter
9. Ex.P9 13.09.2010 Photocopy of the experience certificate
10. Ex.P10 04.12.2011 Photocopy of the certificate of participation
11. Ex.P11 04.12.2011 Photocopy of the provisional certificate
12. Ex.P12 27.08.2012 Photocopy of the permission letter given by Tamil Nadu Body Builders Association.
13. Ex.P13 19.09.2015 Photocopy of the Government of Tamil Nadu issued by the plaintiff.
14. Ex.P14 14.11.2015 Photocopy of the Delivery Challans
15. Ex.P15 05.01.2016 Photocopy of the cash bill
16. Ex.P16 27.01.2016 Photocopy of the telephone bill
17. Ex.P17 12.07.2016 Photocopy of the memorandum of Aadhaar
18. Ex.P18 12.07.2016 Photocopy of the Gym License
19. Ex.P19 18.07.2016 Photocopy of the Lease Agreement
20. Ex.P20 30.09.2016 Photocopy of the Rental Invoice
21. Ex.P21 31.03.2017 Photocopy of the application in Excise and customs
22. Ex.P22 28.02.2017 Photocopy of the rental invoice
23. Ex.P23 03.03.2017 Photocopy of the registration certificate
24. Ex.P24 23.03.2017 Photocopy of the Agreement of Tenancy
25. Ex.P25 31.03.2017 Photocopy of the Balance Sheet
26. Ex.P26 05.04.2017 Photocopy of the rental agreement
27. Ex.P27 20.04.2017 Photocopy of the Franchise Agreement _____________ https://www.mhc.tn.gov.in/judis Page No.41 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No. Exhibits Date Particular of Deocuments
28. Ex.P28 12.05.2017 Photocopy of the Memorandum of Agreement for availing in interest/share of Rs.60,00,000/-
29. Ex.P29 12.05.2017 Photocopy of the record slip plaintiff to AXIS Bank
30. Ex.P30 - Photocopy of the installation report for purchase equipments for C3 fitness science.
31. Ex.P31 - Photocopy of the installation report for purchase equipments for C3 fitness science.
32. Ex.P32 29.06.2017 Photocopy of the tax invoice
33. Ex.P33 30.06.2017 Photocopy of the delivery challan
34. Ex.P34 14.07.2017 Photocopy of the GST invoice
35. Ex.P35 02.08.2017 Photocopy of the certificate of importer & exporter code to plaintiff
36. Ex.P36 17.09.2017 Photocopy of the invoice
37. Ex.P37 24.09.2017 Photocopy of the invoice
38. Ex.P38 27.09.2017 Photocopy of the tax invoice
39. Ex.P39 03.10.2017 Photocopy of the cash invoice
40. Ex.P40 05.10.2017 Photocopy of the invoice bill
41. Ex.P41 26.10.2017 Photocopy of the invoice reports for purchase equipments for C3 fitness science.
42. Ex.P42 20.11.2017 Photocopy of the warranty registration of purchase equipments for C3 fitness science
43. Ex.P43 29.12.2017 Photocopy of the challan issued to the purchase equipments for C3 fitness science.
44. Ex.P44 31.03.2018 Photocopy of the balance sheet
45. Ex.P45 - Photocopy of the Expense voucher incurred by the defendant for C3 fitness science at Vepery.
46. eX.p46 May,2018 Photocopy of the voucher for the period Mary,2018
47. Ex.P47 June,2018 Photocopy of the voucher for the period of June 2018
48. Ex.P48 July,2018 Photocopy of the voucher for the period of July,2018
49. Ex.P49 Oct,2018 Photocopy of the voucher for the period of Oct,2018
50. Ex.P50 Nov,2018 Photocopy of the voucher for the period of Nov,2018
51. Ex.P51 Dec,2018 Photocopy of the voucher for the period of Dec,2018 _____________ https://www.mhc.tn.gov.in/judis Page No.42 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No. Exhibits Date Particular of Deocuments
52. Ex.P52 April,2019 Photocopy of the voucher for the period of April,2019
53. Ex.P53 May,2019 Photocopy of the account voucher for the period of May,2019
54. Ex.P54 June,2019 Photocopy of the account voucher for the period of June,2019
55. Ex.P55 July,2019 Photocopy of the account voucher for the period of July,2019
56. Ex.P56 Aug,2019 Photocopy of the account voucher for the period of August, 2019.
57. Ex.P57 Sept, 2019 Photocopy of the account voucher for the period of September,2019
58. Ex.P58 Oct,2019 Photocopy of the account voucher for the period of Oct,2019.
59. Ex.P59 Nov,2019 Photocopy of the account voucher for the period of Nov,2019.
60. Ex.P60 Dec,2019 Photocopy of the account voucher for the period of Dec,2019
61. Ex.P61 Jan,2020 Photocopy of the account voucher for the period of Jan,2020
62. Ex.P62 18.01.2020 Photocopy of the trademark certificate
63. Ex.P63 - Phone communication for the period from 3rd April 2020 to 17, April 2020.
64. Ex.P64 - Photocopy of the payment receipt
65. Ex.P65 - Photocopy of the ICICI Bank Statement for the Account of Defendant for the period from 01.05.2017 to 31.10.2017.
66. Ex.P66 - Photocopy of the ICICI Bank Statement for the Account of Defendant for the period from 01.11.2017 to 31.12.2017.
67. Ex.P67 - Photocopy of the ICICI Bank Statement for the Account of Defendant for the period from 01.12.2017 to 31.12.2017
68. Ex.P68 - Photocopy of the AXIS Bank Statement for the Account of Defendant for the period from02.03.2017 to 01.03.2018 _____________ https://www.mhc.tn.gov.in/judis Page No.43 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No. Exhibits Date Particular of Deocuments
69. Ex.P69 - Photocopy of the ICICI Bank Statement for the Account of Defendant for the period from 01.04.2017 to 31.03.2018.
70. Ex.P70 - Photocopy of the ICICI Bank Statement for the Account of Defendant for the period from 01.03.2018 to 28.02.2019.
71. Ex.P71 30.09.2015 Photocopy of the Package Receipt issued to the Plaintiff by M/s. Fitness One
72. Ex.P72 08.06.2020 Photocopy of the demand notice issued by the plaintiff to the defendant
73. Ex.P73 06.06.2020 Photocopy of the Notice issued under Section 138 of Negotiable Instruments Act.
74. Ex.P74 17.06.2020 Photocopy of the common reply given by the defendant to the plaintiff.
75. Ex.P75 04.08.2020 Photocopy of the letter of rejoinder
76. Ex.P76 12.09.2020 Photocopy of the complaint with CSR.No.242 of 2020
77. Ex.P77 17.09.2020 Photocopy of the complaint with reference No.EUS20105924
78. Ex.P78 July,2020 Photocopy of the Application No.302 of 2020 in C.S.No.183 of 2020.
79. Ex.P79 11.09.2020 Photocopy of the O.A.No.302 of 2020 in C.S.No.183 of 2020
80. Ex.P80 12.09.2020 Photocopy of the Lawyer's Notice
81. Ex.P81 24.07.2020 Photocopy of the plaint in C.S.No.183 of 2020
82. Ex.P82 31.10.2020 Photocopy of the written statement in C.S.No.183 of 2020
83. Ex.P83 23.11.2020 Photocopy of the Application No.13 of 2020 in C.S.No.183 of 2020.
84. Ex.P84 04.01.2020 Photocopy of the counter in Application No.13/2020 in C.S.No.183 of 2020
85. Ex.P85 July,2020 Photocopy of the Application No.1652 of 2020 in C.S.No.183 of 2020
86. Ex.P86 Sep,2020 Photocopy of the O.A.No.302 of 2020 in C.s.No.183 of 2020 _____________ https://www.mhc.tn.gov.in/judis Page No.44 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 S.No. Exhibits Date Particular of Deocuments
87. Ex.P87 19.02.2021 Photocopy of the O.A.No.65 of 2021 in C.S.No.41 of 2021
88. Ex.P88 10.03.2021 Photocopy of the order in O.a.No.302 of 2020
89. Ex.P89 10.03.2021 Photocopy of the order in O.A.No.1652 of 20201
90. Ex.P90 07.03.2021 Photocopy of the Apollo Times Paper Advertisement
91. Ex.P91 - Photocopy of the voucher series
92. Ex.P92 03.10.2004 Certificate of participation
93. Ex.P93 07.03.2009 Certificate of Merit
94. Ex.P94 22.03.2009 Certificate of honour
95. Ex.P95 24.05.2009 Certificate of Merit
96. Ex.P96 02.08.2009 Certificate Honour
97. Ex.P97 25.10.2009 Certificate of Merit
98. Ex.P98 - Participation and secure placements in the fitness competition photos.
99. Ex.P99 13.08.2010 Appointment Letter
100. Ex.P100 04.12.2011 Certificate of participation
101. Ex.P101 04.12.2011 Provisional Certificate
102. Ex.P102 27.08.2012 Permission letter given by Tamil Nady Body Builders Association
103. Ex.P103 12.07.2016 Gym License
104. Ex.P104 18.07.2016 Lease Agreement
105. Ex.105 30.09.2016 Rental Invoice
106. Ex.P106 28.02.2017 Rental Invoice
107. Ex.P107 03.03.2007 Registration Certificate
108. Ex.P108 23.03.2017 Agreement of Tenancy
109. Ex.P109 31.03.2017 Balance Sheet
110. Ex.P110 31.03.2018 Balance Sheet
111. Ex.P111 18.01.2020 Trade Mark Certificate SKRJ _____________ https://www.mhc.tn.gov.in/judis Page No.45 of 46 C.S.(Comm. Div.)No.183 of 2020 & C.S.No.68 of 2021 SENTHILKUMAR RAMAMOORTHY, J.
rrg Pre-Delivery Common Judgment C.S.(Comm.Div)No.183 of 2020 and C.S.(Comm.Div)No.68 of 2021 17.08.2022 _____________ https://www.mhc.tn.gov.in/judis Page No.46 of 46