Kerala High Court
Vasudevan vs C.K. Narayanan Namboodiri, Assistant, ... on 11 February, 2003
Bench: K.S. Radhakrishnan, K. Padmanabhan Nair
JUDGMENT Padmanabhan Nair, J.
1. The first defendant in O.S.No. 342 of 1983 on the file of the Principal Sub Court, Alleppey is the appellant in this appeal. The appeal is filed against the judgment and decree passed by a Learned Single Judge of this Court by which the decree of the trial court allowing the second respondent to recover money from the second defendant is altered as a decree allowing recovery of money from the first defendant. Second respondent Society is a voluntary organisation governed by Ext.A1 bye-laws. The share capital of the Society is 10 coconuts or value of the same as one share and that is to be contributed once in two months. The coconuts contributed by the members will be sold in public auction and the Secretary is authorised to collect the amounts and issue receipts. He is also authorised to keep upto an amount of Rs. 2,000/-. Any amount in excess of that amount has to be deposited in the State Bank of Travancore in the joint account maintained by the President and Secretary of the Society. The persons who intend to take part in the auction of the coconuts shall deposit the earnest money and also the amount which the Committee fixes as security. The Committee has the right to modify and alter the conditions of auction.
2. The second respondent-plaintiff filed the suit for realisation of an amount of Rs. 50,580/- with interest from the first defendant and his assets. It was alleged that the first defendant was the successful bidder of the auction of the coconuts held on 9-2-1981 and the plaint amount was due towards the balance of the bid amount. It was further alleged that the Secretary released the coconuts without receiving the full auction amount and crediting the same in the account of the Society and hence in case it was found that the 1st defendant is not liable the plaintiff may be allowed to recover the plaint amount from the assets left by the Secretary who died and is now in the possession of the 2nd defendant. The trial court found that the first defendant paid the amount to the Secretary and he is not liable for the amount claimed. It was further found that the then Secretary misappropriated that amount and so the plaintiff is entitled to get a decree from the assets left by the Secretary who is no more. The second defendant on whom the assets devolved filed an appeal, A.S.No. 166 of 1988, before this Court challenging the decree passed by the trial court. The Learned Single Judge found that there is no evidence to hold that the first defendant paid the amount and the first defendant failed to prove the discharge pleaded and hence he is liable to pay the amount. Since the relief of recovery from the assets of the deceased Secretary was sought for only as an alternate relief, that was not granted. The first defendant has filed this A.F.A. challenging the judgment and decree passed by the Learned Single Judge of this Court.
3. The learned counsel appearing for the appellant has argued that the trial court after a proper appreciation of the evidence found that the first defendant paid the amount to the Secretary who is authorised to receive the same and hence exonerated the first defendant from any further liability. It is contended that though the relief sought for against the first defendant was refused and the decree was passed only against the second defendant, the plaintiff did not file any appeal. It is argued that the plaintiff could not have maintained any memorandum of cross objection in the earlier appeal as that was a matter between the two respondents only. The learned counsel appearing for the second respondent has argued that the plaintiff is unconcerned whether the decree is passed against the appellant or the first respondent. It is argued that in the original plaint also the main relief is sought against the appellant and the relief as against the second defendant was sought for only as an alternate remedy. It is further argued that in view of the provisions contained in Order XLI, Rule 33 of the Code of Civil Procedure, the decree passed by the Learned Single Judge is perfectly correct and does not call for an interference. The second defendant in the suit has contended that the decree passed by the learned Single Judge is perfectly correct and does not call for interference.
4. The suit was one for money. Plaintiff is a voluntary Organisation represented by its Secretary. Ext.A1 is the bye-law of the Society. As we have already stated, ten coconuts or its value is treated as one share. Every member has to contribute that share once in two months. The coconuts so collected are sold in public auction. The claim in this case relates to the price of coconuts sold on 9-2-1981 in public auction. The appellant was the successful bidder in the auction. He quoted the price at Rs. 1735/- per thousand coconuts. That was accepted and the sale was confirmed in his name. there were 48,189 coconuts, the value of which was fixed as Rs. 83,607.92. According to the second respondent the auction purchaser paid an amount of 40,376.85 and the balance of Rs. 43231.07 is due to the Society. The allegation is that without depositing the entire amount in the Society, the then Secretary allowed the appellant auction purchaser to remove the coconuts sold in public auction and thereby an amount of Rs. 43231.07 is due to the Society. The then Secretary Sri. C.N. Sankaranarayanan Namboodiri died on 19-1-1982. In the plaint the main relief is sought against the first defendant and alternate relief is sought against the assets of the deceased Secretary which devolved upon the second defendant.
5. The appellant contended that the suit is not maintainable as the same was filed without complying with the provisions of Order I, Rule 8 of the Code of Civil Procedure. It is true that the suit was filed without obtaining permission. But during the pendency of the suit plaintiff filed a petition seeking permission under Order I, Rule 8 of the Code of Civil Procedure and that application was allowed. It is well settled position of law that it is a defect which can be cured subsequently. Since the statutory requirement was complied during the pendency of the suit, there is no merit in the argument.
6. It was contended that the suit was barred by limitation. The auction sale was conducted on 9-2-1981. The suit was filed on 23-12-1983. If 23-12-1983 is taken as the date of institution of the suit, there is no limitation. According to the appellant originally there was no publication under Order I, Rule 8 of the Code of Civil Procedure and the same was allowed and published only in 1986 and hence the suit must be deemed to have been instituted only on that date. It is also argued that since it was a suit for money the same can be considered as one filed on the date of getting sanction of the court. The learned Single Judge had elaborately considered this issue, though the same was not raised in the written statement or argued before the trial court. The learned Single Judge found that the principal applies to money suit also and came to the right conclusion that the suit is not barred by limitation. In view of the principle laid down in C.R. Ramakrishnan v. Raman and Ors. (1983 K.L.T. 63) which was followed by the learned Single Judge, there is not merit in the contention raised by the counsel for the appellant that the suit is barred by limitation.
7. Now we shall consider how far the finding of the learned Single Judge that the first defendant failed to prove the discharge pleaded by him is correct. The learned Single Judge found that the main relief is sought against the appellant and he admitted the liability and pleaded discharge. It was further found that the appellant failed to prove the discharge pleaded. In this connection, the averment in the plaint is very relevant. In paragraph 1 it is stated that the appellant paid an amount of rs. 40,376.85 and an amount of Rs. 43,231.07 is stated as the balance. But in the second paragraph it is very specifically admitted that the first defendant fabricated documents and did not account the money received by him. It is a averred that:
So there is an unequivocal admission in the plaint to the effect that the then Secretary received the bid amount but did not deposit the amount in the account of the Society and in order to escape from the liability he assigned his properties in favour of the second respondent. It is not a case where the plaintiff alleged non payment of the bid amount but on the other hand, it is very specifically admitted that the appellant paid the amount to the then Secretary. But the Secretary did not deposit the amount in the account of the Society. Since it is admitted that the auction purchaser paid the bid amount the plaintiff is not entitled to file suit for recovery of the balance of bid amount. If the Secretary had misappropriated the amount the suit ought to have been for the recovery of the defalcated amount. So the frame of the suit itself is bad.
8. In view of the admission made by the second respondent in the plaint, no burden is cast on the appellant to further prove that he entrusted the amount to the then Secretary of the Society. The appellant gave evidence as D.W.1. He examined D.Ws. 2 and 3 and produced Exts.B7 and B8 to prove the fact that he gave the bid amounts to the then Secretary. D.W.3 is an employee of the Society in whose handwriting Ext.B1 receipt was written. D.W.3 is none other than the present Secretary. The trial court after appreciating the evidence on the proper perspective, found that those receipts relate to the auction held on 9-2-1981. According to the first defendant whenever he removed one particular lot the person in charge of that lot received the value of the coconuts and acknowledged the same. As rightly found by the trial court Ext.B8 was written by different persons. P.W.3 the present Secretary admitted that he made one entry in Ext.B8 and received an amount of Rs. 500/- on 1-2-1982, Rs. 1000/- on 20-2-1982 and Rs. 1,000/- on 22-12-1981. D.W.2 had admitted that he received an amount of Rs. 500/- on 19-4-1982 towards part of the balance amount under Ext.B8 and he had endorsed the same in it. The admissions made by D.Ws. 2 and 3 were brushed aside by the learned Single Judge on the ground that the appellant did not obtain proper receipts. Nobody has got a case that the Society was issuing printed receipts. Clause 5 of Ext.A1 bye-law only says that the amount shall be collected by the Secretary and he shall issue the receipt. Ext.A2 sale notice is also very relevant. It stated that the successful bidder has to give the price of the coconut to the Society and obtain a receipt. In view of the provisions contained in Exts.A1 and A2 the Secretary was entitled to collect the bid amount. Exts.A1 and A2 only provide that the Secretary shall issue a receipt. Ext.B8 contains the acknowledgement of the receipt of money. It contains an acknowledgment of the former Secretary, present Secretary and another employee of the Society. So it is evidently clear that the employees of the Society were in the habit of collecting the bid amount of coconuts sold in auction and acknowledged the receipt of money. The genuineness of Ext.B8 is not disputed. So the view taken by the learned Single Judge that the appellant-first defendant did not produce the receipt is not correct. The appellant produced receipts issued by the persons who received the money. So long as no particular form of printed receipt is prescribed, Ext.B8 cannot be discarded. So the finding of the Learned Single Judge that the appellant is liable to pay the amount is not correct. The leaned Single Judge ought not have decreed the suit against the first defendant. So the judgment and decree passed by the Learned Single Judge are liable to be set aside.
9. The next question to be considered is whether we should restore the decree of the trial court. It is true that Order 41, Rule 33 C.P. Code gives power to the appellate court to pass any decree that the trial court ought have been passed though the plaintiff has not filed any appeal or cross appeal. But such power can be exercised only in rare cases as held in State of Punjab v. Bakshish Singh (1998) 8 S.C.C.222). The former Secretary died on 19-1-1982. The averments in the plaint show that the dispute if any brought out long after the death of the then Secretary. Clause 5 of Ext.A1 bye-law shows that the Secretary is entitled to keep up an amount of Rs. 2000/- and any amount in excess of Rs. 2000/- has to be deposited in the joint account to be maintained in the name of the President and Secretary. The Society has no case that any action was initiated against the Secretary during his life time. In this connection it is to be noted that the auction took place on 9-2-1981 and the Secretary died after a short period. We are of the view that it is not just and proper to grant any relief allowing recovery of the amount from the assets of the deceased Secretary. So the dismissal of the suit as against the properties of the deceased Secretary is also correct and does not call for interference.
In the result, the appeal is allowed. The judgment and decree passed by the learned Single Judge in A.S.No. 166 of 1988 are set aside. The suit is dismissed. Partied are directed to suffer their costs. C.M.P.No. 1701 of 1995 shall stand dismissed.