Kerala High Court
State Of Kerala vs M/S.N.C.John & Sons Ltd on 28 October, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938
AS.No. 701 of 1999 (A)
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AGAINST THE DECREE & JUDGMENT IN OS 71/1992 of PRINCIPAL SUB
COURT,ALAPPUZHA DATED 28.10.1998
APPELLANT(S): DEFENDANTS:
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY
GOVERNMENT (REVENUE), TRIVANDRUM.
2. R.P.RAGHUTHAMAN, TAHSILDAR (RR)
AMBALAPUZHA TALUK, ALAPPUZHA.
BY ADVS.GOVERNMENT PLEADER
SRI.K.B.RAMANAND
RESPONDENT(S): PLAINTIFF:
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M/S.N.C.JOHN & SONS LTD.,
VAZHICHERRY, ALAPPUZHA.
R, BY ADV. SRI.P.S.GEORGE
R, BY ADV. SRI.TOMY P.T.
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16-08-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.CHITAMBARESH & K.HARILAL, JJ.
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A.S.No.701 of 1999
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Dated this the 16th day of August, 2016
J U D G M E N T
Chitambaresh, J.
The State of Kerala and the Tahsildar (RR) in his personal capacity have filed this appeal against the decree for damages to the tune of ` 50,000/- awarded to the respondent. The same is split up into ` 40,000/- towards loss of reputation and goodwill of the respondent company and ` 10,000/- towards the inconvenience caused. The cause of action is said to be the attachment of movables belonging to the company comprising of tables, chairs, typewriting machines, common balance etc. by resort to revenue recovery. It is the case of the respondent that the default towards agricultural income tax was committed by the Directors personally and not by the company.
2. The respondent had earlier filed OP.No.3248/1991 on the file of this Court disposed of by Ext.A5 judgment seeking the return of the movables as well as damages. The prayer 'B' in the original petition was to award damages to the petitioner (the respondent herein) for the injury caused by the AS.701/1999 2 respondents (the appellants herein). The original petition was closed without granting any relief in that regard and merely recording the submission of the Government Pleader. The submission was to the effect that the order of attachment would be cancelled by the appellants and it is conceded that it was done immediately after the judgment.
3. O.P.No.4036/1991 on the file of this Court was thereafter filed by the respondent seeking a direction to deliver back the movables attached and removed in revenue recovery. The original petition was disposed of by Ext.A8 judgment awarding a sum of ` 2,500/- to the respondent towards expenses for taking back the articles attached and removed. The amount was directed to be set off against the tax liability of the assessee who in reality are only the Directors of the respondent company. It is discernible from Ext.B1 series notices that the default was committed by Mr.N.C.John and his sons who are none other than the Directors of the respondent.
4. The present suit filed claiming further damages in the light of OP.Nos.3248/1991 and 4036/1991 is hit by the principles of constructive res judicata AS.701/1999 3 ingrained in Order II Rule 2 CPC. The respondent 'ought' to have raised the present claim for damages in the earlier original petitions itself in which case this Court 'might' have rendered a verdict. Damages towards loss of reputation and goodwill cannot be easily granted without concrete proof when the respondent is an artificial person. There is paucity of evidence to hold that the respondent had a high reputation and goodwill and that the same was dented due to the action of the appellants.
5. Equally unsustainable is the award of damages for the alleged inconvenience caused when the respondent was rest contented with the receipt of `.2500/- for moving the articles back. No documents have been produced to show that the company could only work for half of its capacity for the mere attachment of certain chairs and tables. The said sum of `.2500/- was directed to be adjusted from the tax liability of the assessees as agreed to by the respondent in Ext.A8 judgment. It is crystal clear therefore that the revenue recovery proceedings were initiated to recover the amount due from the assessees who were in absolute control of the respondent company. It was a bona fide AS.701/1999 4 exercise of power by the appellants in order to realise the amount due towards agricultural income tax by resorting to revenue recovery proceedings. We also notice that repeated notices evidenced by Ext.B1 series were issued to the assessees to pay the amount due towards agricultural income tax.
6. We do not think that this is a fit case to award damages to the respondent against the appellants especially in the light of Exts.A5 and A8 judgments on the same cause of action. We set aside the judgment and decree of the court below and dismiss the suit in O.S.No.71/1992 on the file of the court of the Principal Subordinate Judge of Alappuzha.
The Appeal Suit is allowed. No costs.
Sd/-
V.CHITAMBARESH, Judge.
Sd/-
K.HARILAL, Judge.
nj/16.08.2016 //True copy// P.S. to Judge.