Kerala High Court
M/S.Harrisons Malayalam Ltd vs M/S.Subbaraya Traders on 19 January, 2010
Bench: A.K.Basheer, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 711 of 1995()
1. M/S.HARRISONS MALAYALAM LTD.
... Petitioner
Vs
1. M/S.SUBBARAYA TRADERS
... Respondent
For Petitioner :SRI.ANTONY DOMINIC, A.M.SHAFFIQUE
For Respondent :SRI.P.K.ABOOBACKER EDAPPALLY
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/01/2010
O R D E R
A. K. BASHEER & M.L.JOSEPH FRANCIS JJ.,
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A. S. No: 711 of 1995
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Dated this the 19th day of January, 2010.
JUDGMENT
Basheer J., Appellant is the plaintiff in a suit for recovery of money. The court below dismissed the suit holding that there was no evidence on record to show that the officer who signed the plaint on behalf of the appellant company had authority or competence to do so. Hence this appeal.
2. Appellant/ plaintiff a Public Limited Company, instituted the suit contending inter alia that in its capacity as the Clearing and Shipping agent, it had been handling coffee seeds for and on behalf of the defendants for shipping. Defendant No.1, a partnership firm of which defendants 2 and 3 were partners, committed default in making payment of the amounts due under the account maintained in respect of the transactions. Thus, a sum A. S. No: 711 of 1995 :2: of Rs.2,16,756.88 remained unpaid by the defendants. Though the plaintiff issued a demand notice, the defendants did not discharge the liability. It was in the above circumstances, that the suit was instituted for realisation of the said amount.
3. The defendants in their written statement, contended that the account maintained by the plaintiff was not correct. The statement of account produced by the plaintiff was, according to the defendants, fabricated. It was further contended by the defendants that they had made substantial payments towards the liability and what remained to be paid was only a sum of Rs.85,052.33. It was further contended that the officer, who signed the plaint on behalf of the company had no authority or competence to do so.
4. The court below framed on the following issues, based on the pleadings of the parties:
(1) Is the suit maintainable?
(2) Is the suit barred by limitation? (3) Is the plea of discharge true? (4) Is plaintiff's account true and genuine? (5) Are the defendants liable for the plaint claim? (6) Is the plaintiff entitled to interest? At what rate? A. S. No: 711 of 1995 :3: (7) Reliefs and costs?
5. PW1, a clerk working in the company, was examined on the side of the plaintiff and Exts. A1 and A2 were marked. DW1 was examined on the side of defendants and Ext.B1 was marked on their side.
6. While dealing with issue No.1, the court below noticed that the plaint was signed by Manager (Legal) and not by their Secretary or Director. Though PW1 stated that Manager (Legal) is in charge of all legal matters pertaining to the company, the court below refused to accept the above assertion, in the absence of any document to show that the Director Board had authorised the said Manager to institute the suit. It was further noticed by the learned Judge that the power of attorney, which was reportedly executed in favour of Manager (Legal) had been produced before the court, though it was not marked. In that view of the matter, the court below held that the suit instituted through its Manager (legal), was not maintainable.
7. But still, the court below proceeded to consider the other A. S. No: 711 of 1995 :4: issues regarding the plea of bar of limitation, discharge etc. The court held that the suit was laid within three years from the date of acknowledgment of debt by the defendants. In Ext.A1 letter, defendant No.1 had tacitly admitted that a sum of Rs.2,50,000/- was liable to be paid by the defendants to the plaintiff. The defendants did not dispute the genuineness of Ext.A1. Therefore the court below repelled the contention of the defendants that the suit was barred by limitation.
8. As regards the issue relating to the plea of discharge, the court below noticed that the defendants has not adduced any evidence in support of the above plea. Therefore, the above plea was also rejected.
9. Coming to the issue regarding the correctness of the accounts produced by the plaintiff, the court below noticed that there was nothing on record to indicate that the accounts were fabricated. More importantly, in Ext.A1 the defendants had admitted the liability to the tune of Rs.2,50,000/-. The rate of interest claimed by the plaintiff was also found to be sustainable. A. S. No: 711 of 1995 :5:
10. However the court below dismissed the suit holding that the person who instituted the suit on behalf of the plaintiff company was not competent to do so.
11. In this context, learned counsel has invited our attention to Order 29 of the Code of Civil Procedure and the Rules thereunder. The decision referred by a Division Bench of this court in Kalpaka Shrimp Exports v. Kerala Financial Corporation (1989 (2) KLT 18), is also pressed into services by the learned counsel. In the above decision, the suit was instituted by Kerala State Financial Corporation through its Deputy Legal Manager. The Division Bench while over ruling the decision of the learned Sub Judge held that if a restricted meaning is to be given to the 'Principal Officer', it will lead to anomalous situations. If the word is to mean the most important officer, then not more than one officer in the corporation will be able to sign the petition. The Division Bench further reminded that Rule 1 of Order 29 of the Code is not exhaustive of the persons or officers who can sign and verify the plaint.
A. S. No: 711 of 1995 :6:
12. We have carefully perused the entire materials available on record and particularly the pleadings of the defendants. Appellant/ plaintiff is a Public Limited company. The plaint presented by appellant/plaintiff before the court below was signed by its Manager (Legal). PW1 clerk working in the company had categorically stated before the court below that Manager (Legal) was in charge of the entire legal matters pertaining to the company. In the absence of any material to show that the particular officer who signed the plaint had no competence to sign the plaint, the evidence given by PW1 and averments in the plaint ought to have been executed by the court below. In that view, we are unable to sustain the view taken by the learned Judge on issue No.1. In other words, the above issue has to be answered in favour of the plaintiff. We do so. The court below has answered the other issues in favour of the appellant as indicated above. Therefore, the suit is liable to be decreed. We do so.
13. The suit is decreed against the defendants personally and against their properties for a sum of Rs.1,43,969.28 with interest at A. S. No: 711 of 1995 :7: the rate of 18% from 30.7.1990 till the date of suit with future interest at the rate of 6% from the date of decree till the date of realisation. The appellant plaintiff shall be entitled to get cost also from the defendants.
Appeal is allowed in the above terms.
A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE.
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