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Judgment
G. Rajasuria, J.—Animadverting upon the Judgment and Decree dated 20.6.2006 passed in O.S. No. 9 of 2004 by the District Court at
Nagapattinam, this Appeal is focussed. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and
ranking before the Trial Court.
Narratively but precisely, broadly but briefly, the germane facts absolutely necessary for the disposal of this Appeal would run thus:
The Plaintiff being a Company registered under the Companies Act, tiled the Suit seeking the following relief''s:
(a) To direct, the Defendants 1 to 5 to pay the Suit amount as claimed above on a charge of the properties offered as security by way of
attachment before judgment for which a separate Application is filed and if the properties for which attachment is sought for is not sufficient to pay
the amount personally and out of the other assets which are available in the hands of Defendants 1 to 5 ?
(b) To direct the Defendants 1 to 5 to pay the costs of this Suits.
(extracted as such)
The gist and kernel, the pith and marrow of the averments as found exemplified in the Plaint would run thus:
The First Defendant/Ramasamy is the Husband of D2 and father of D3. Ramasamy borrowed money from the Plaintiff and executed various
documents. He also along with his Wife/D2 and son/D3, availed housing loan and the details are as under:
Subsequently D1 to D3 committed default in discharging the debts. D1 to D3 also created security for the prompt repayment of the loan by
furnishing the immovable properties found described in the connected Application for attachment before judgment. The Defendants failed to
discharge the dues. Hence, the Suit.
D4 & D5 happened to be the purchasers or the said property furnished as security and hence, they were also added as parties to the Suit.
Per contra in a bid to extirpate and torpedo, pulverize and challenge the averments/allegations in the Plaint, D1 to D3 filed the Written
Statement, the warp and woof of the same would run thus:
The Suit based on accounts, is fraught with falsity and mendacity. The true picture was not projected. There was arrangement between D1 and the
Plaintiff-Company to the effect that D1 was permitted to avail chid fund facilities in Nagapattinam Siva Sakthi Benefit Fund Limited, the sister
concern of the Plaintiff-Company, as per which the prize amounts payable to Ramasamy would not be paid to him, but it would be adjusted
towards the loan availed by him from the Plaintiff. Accordingly the transactions were going on for a considerable time. The First Defendant
believed the Plaintiff for everything. D1 was not in the know of things and he could not see the wood for trees. Taking undue advantage of the
same, by manipulated and false accounts the Suit was filed. No mortgage was created by D to D3 and as such, the Suit filed by the Plaintiff is
totally untenable. D1 paid enormous amounts to the Plaintiffs sister concern, namely Nagapattinam Siva Sakthi Benefit Fund Limited and only part
of the amounts due payable to D1, was adjusted towards the debt incurred by the Defendants. Accordingly they would pray for the dismissal of
the Suit.
D4 & D5 filed separate Written Statement disputing their liability as claimed in the Plaint and according to them, they are the bona fide
purchasers for value the said property, without notice of any alleged encumbrances.
The Trial Court framed the relevant issues.
Up went the trial, during which on the side of the Plaintiff, P.Ws. 1 & 2 were examined and Exs. A1 to A66 were marked; and on the side of
the Defendants, the First Defendant examined himself as D.W.1 along with D.W.2 and Exs. B1 to B25 were marked.
Ultimately the lower Court dismissed the Suit. Being aggrieved by and dissatisfied with the judgment and decree of the Trial Court, this Appeal
has bean filed on various grounds.
The learned Counsel for the Plaintiff placing reliance on the grounds of Appeal would pyramid his arguments, which could succinctly and
precisely be set out thus:
(a) The Trial Court simply took for gospel truth, the case of the Defendants and dismissed the Suit.
(b) The Trial Court also wrongly held as though the Suit itself was instituted by a wrong person was is not authorised to institute it. The Managing
Director of the Plaintiff-Company signed the Plaint which was perfectly legal.
(c) Certain excerpt from the deposition of PW1 was extracted and out of context they were relied on by the lower Court and simply dismissed the
Suit finding fault with the Plaintiffs claim as though the Plaintiff did not produce proper accounts and also documents.
(d) The lower Court also wrongly went to the extent of holding that. PW1 was not the competent person to depose about the facts, as he had no
personal knowledge about the accounts.
(e) The Suit itself is based on accounts and in such a case, the Court was expected to look into the accounts instead of looking into the bare oral
evidence of the witness through whom the documents were marked.
(f) The accounts produced were all audited accounts and they were having authenticity of their own, but the lower Court simply discarded the
same. As such, based on the evidence available, the Suit ought to have been decreed by the Court, but it dismissed it warranting interference in the
Appeal.
Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on he side of the Plaintiff, the learned Counsel for D1 to
D3 would advance his arguments, the pith and marrow of the same would run thus:
(a) The lower Court threadbare discussed the nexus between the loan transaction alleged in the Plaint and the chit transactions found set out in the
Written Statement of the Defendants and also in their evidence.
(b) PW1''s evidence was correctly appreciated toy the lower Court as such in the wake of the admissions made by PW1 and the documents filed
on the Plaintiffs side, the Court below correctly decided the lis, warranting no interference in the Appeal.
(c) In tact, the accounts would reveal that it is the Chit Fund Company, which has to pay money to D1, and D1 to D3 were not liable to pay any
amount, to the Plaintiff, as whenever prize amounts were payable by the said Chit Fund Company to D1, those amounts were expected to be
adjusted relating to the dues payable by D1 to D3 in favour of the Plaintiff. However, as per the Ledger Accounts, only two amounts were
credited towards the dues payable by D1 to D3 to the Plaintiff and the remaining prize amounts due payable to D1 by the Chit Fund Company
were not adjusted towards the dues payable by D1 to D3, to the Plaintiff Company. This aspect has been correctly understood by the Trial Court
and dismissed the Suit and it also correctly pointed out that the alleged Mortgage Deed referred to in the Plaint was not marked and accordingly
rendered the judgment correctly, warranting no interference in the Appeal.
The points for consideration are as to:
(1) Whether the Suit was improperly instituted as held by the lower Court ?
(2) Whether the lower Court was justified in placing reliance on certain excerpts from the deposition of PW1 and comparing the same with the
accounts and ultimately dismissing the Suit ?
(3) Whether the lower Court should have ordered for appointment of an auditor as Commissioner for taking accounts for the purpose of rendering
justice ?
(4) Whether there is any perversity or illegality in the judgment and decree of the lower Court ?
All these points are taken together for discussion as they are interlinked and inter-woven with one another.
A summation and summarisation or the admitted facts could pithily and precisely be set out thus:
The Plaintiff is a Company lending money to borrowers. The First Defendant being a business man was availing loans from the Plaintiff. The
transactions relating to the Suit claim emerged between the Plaintiff and D1 and there is no doubt about it. However, it is precisely the contention
of D1 to D3 that Nagapattinam Siva Sakthi Benefit Fund Limited is the Plaintiffs sister concern. D1 happened to be a subscriber to various chits in
that Chit Fund Company.
The learned Counsel for the Defendants would submit that there was a Tripartite Arrangement among (i) the Plaintiff, (ii) D1 to D3, and (iii)
Nagapattinam Siva Sakthi Benefit Fund Limited and D1 was enabled to participate in the chits, wherein he could subscribe and also bid in the
auction concerned so as to enable him to discharge the loans which he borrowed from the Plaintiff. Accordingly, the prize amount would not be
paid to D1 to D3, but that amount would be adjusted towards the dues payable by D1 to D3 to the Plaintiff, for the amount borrowed from the
Plaintiff by the Defendants.
The learned Counsel for the Defendants would pyramid his arguments, by detailing and delineating with reference to the various documents as
well as the evidence of PW1 that only on two occasions a sum of Rs. 1,05,000/- and a sum of Rs. 1,23,000/- were adjusted towards the dues
payable by the Defendants to the Plaintiff and that too by way of the aforesaid adjustments. According to him, even as per the admission of PW1
as well as by virtue of the documents and ledgers filed by the Plaintiff, on various occasions D1 happened to be the successful bidder, but the prize
amounts were not paid to him and as such, if those prize amounts payable by D1 are adjusted, then there would be no dues payable by D1 to D3
to the Plaintiff, but on the other hand only the Plaintiff or the Plaintiffs sister concern should pay the Defendants.
Whereas the learned Counsel for the Plaintiff would vehemently oppose such an argument emerging from the side of the Defendants by
pointing out, that without any basis and without any iota or shred, shard or miniscule extent of evidence, such an argument was submitted on the
side of the Defendants. The Ledgers were marked as Exs. A-48 to A-66 on the side of the Plaintiff, which would demonstrate and convey that the
case was not as put forth by the Defendants. The learned Counsel for the Plaintiff would also submit that the lower Court extracted certain
excerpts from the deposition of PW1 and used them out of context and referred to the Ledger entries and wrongly held as though the Plaintiff did
not prove the case. There is nothing to show that D1 happened to be the successful bidder in various chits and that the prize amounts were not
paid to him, etc. No doubt PW1 here and there in his deposition would refer to the factum of D1 having successfully bid in the chit auctions and
that it does mean that it had to be presumed that the entire prize amounts in commensurate with the Suit claim should be adjusted and the
Defendants should be allowed to go scot-free. No doubt in stricto sensu a mortgage did not emerge; however, by filing the L.A. for attachment
before judgment, the Plaintiff got attachment before judgment the properties, which were sold by the Defendants 1 to 3 to D4 & D5.
A mere running of the eye over the judgment of the lower Court would display and indicate that the lower Court, as correctly pointed by the
learned Counsel for the Plaintiff, concentrated very much on the excerpts from the deposition of PW1 and there is no document on record to
portray or describe that really amounts equal to that of the amounts due payable by D1 to D3 to the Plaintiff, were due payable by Nagapattinam
Siva Sakthi Benefit Fund Limited, the sister concern of the Plaintiff-Company to D1. The Court cannot simply assume and presume because there
were some statements by PW1 disowning personal knowledge about the transactions. The Plaintiff is a Company registered under the Companies
Act and in such a case, the officials could only speak with reference to the documents and law also does not expect a witness who deposes on
behalf of a firm to depose from out of his own personal knowledge. I would like to view the matter differently. Assuming that a witness without the
back up of the document deposes about some transaction, will the Court be able to accept the same. The answer is an emphatic no. Simply
because PW1 disowned personal knowledge about certain transactions that it does not mean that his deposition should be looked askance at. No
doubt, the burden of proof is on the Plaintiff to prove its entitlement to recover the Suit claim by virtue of the maxims:
(i) Affirmanti non neganti incumbit probatio-The burden of proof lies upon him who affirms, not upon one who denies.
(ii) Affirmantis est probare-He, who affirms, must prove.
But one important and crucial proposition should not be lost sight of. The burden of proof is ambulatory. On the one hand it is an admitted fact
that D1 borrowed several loans and in respect of that he is liable. So far as D2 to D3 are concerned, they are liable only with regard to Housing
Loan referred to in the Plaint along with D1. Those borrowals were admitted. Scarcely could it be held that the burden got shifted automatically,
because of such admission of the Defendants that the amounts were discharged fully. It is a common or garden Principle of Law that the debtor,
who pleads discharge, should prove it. However, in this case there is one snag in it, because PW1 himself admitted that there was a kind of
Tripartite arrangement emerged. There is no denying of the fact that there is no written Tripartite Agreement signed by all the aforesaid three
parties relating to adjustment of the prize chit amounts towards the dues payable by D1 to D3 towards the loans borrowed by them from the
Plaintiff-Company. In such a case, precisely the Suit itself should be considered as a Suit based on accounts. There is no gainsaying or
contradicting of the fact that this Suit is not based on accounts. The Ledger entries and the extracts are the bed rock constituting the cause of
action for filing the Suit. Wherefore, once the Defendants impeach the genuineness or the accounts, the burden cannot be taken as one got shifted
from the Plaintiff to the Defendants. Over and above that, as per Section 105 of the Indian Evidence Act, the party within whose knowledge there
are certain facts, should come forward to disclose all the facts. Here, through the Court no accounts were taken and that too when the evidence of
PW1 as extracted in the judgment, had created some flutter or cloud in the claim of the Plaintiff. Necessarily the Court should have appointed a
Commissioner to take accounts, whereupon both sides should have been heard after considering their objections, if any and thereafter alone the
Court must have passed the judgment. Here the lower Court by picking holes in the case of the Plaintiff, simply held as though the Suit itself was
not tenable. Such an approach in my opinion is not correct. As per Order 7, Rule 7 of CPC, it is for the Court to mould the relief and pass suitable
orders.
At this juncture the duty of the Defendants also gains importance. The Defendants also had not come forward with any precise evidence so as
to highlight and spotlight the number of chits in which D1 participated and the number of chits in which he happened to be the successful bidder.
The learned Counsel for D1 to D3 would advance his argument by inviting the attention of this Court to certain portions of the deposition of
PW1 and submit that, it is not only D1 to D3 were subscribers in the said Chit Fund Company, but D1''s two sons and two daughters-in-law also
happened to be the subscribers of the chits and they in fact stood as sureties for the prompt discharge of the debts of D1 and that was why in the
Ledger in the special instructions column, the chits relating to the two sons and two daughters-in-law are also found specified and PW1 also
admitted the same during cross-examination.
Whereas, the learned Counsel for the Plaintiff would raise a legal plea that absolutely there is no pleadings to that effect.
Judicis est judicare secundum allegata et probata-It is the proper role of a judge to decide according to the allegations and proofs.
No doubt as per the aforesaid maxim, neither or the parties to a litigation could put forth any evidence without, the back up of the pleadings
however, this is a singularly singular case based on certain type of peculiar accounts and the Plaintiff also had not spelt out clearly the Tripartite
arrangement, which emerged between them as admitted by PW1 to some extent in his deposition. In such a case, the Plaintiff cannot turn its face
away from the reality.
Every trial is a voyage of discovery in which the truth is the quest and this proposition is found embedded in the precedent reported in A. A.
Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by Its President etc.,
A pertinent legal question arises as to how D1 to D3 could try to plead orally their discharge of the dues by placing reliance an the prize
amounts due payable to D1''s sons and daughters-in-law by the Chit Fund Company in respect of the chits in which they were successful bidders.
The learned Counsel for D1 to D3 would submit that if opportunity is given, their said relatives Affidavits would be filed before the Court or
they would also be examined as witnesses to establish and point up that the prize amounts payable to them, who are not parties here, was also in
fact adjustable towards the dues payable by D1 to the Plaintiff But the accounts did not disclose in entirety the said fact. Non legal approach is
different from legal approach. No doubt in stricto sensu, if the matter is viewed, in no time the plea of D1 to D3 could be rejected on the ground
that the prize amounts alleged payable by the Chit Fund Company to the sons and daughters-in-law of D1, cannot be projected as the amounts to
be treated in discharge of the dues payable by D1 to the Plaintiff; but knowingly or unknowingly, wittingly or unwittingly, the Plaintiff itself as per its
Ledger marked and also as per PW1''s evidence projected as though there was a Tripartite arrangement as per which even the chits to which
D1''s sons and daughters-in-law subscribed should be taken as security for the discharge of loans by D1. In such a case, my endeavour to find out
precisely as to how many chits were subscribed by D1 to D3 and D1''s two sons and daughters-in-law from the available record ended in vain.
Over and above that, my quest for finding out as in how many chits those subscribers were successful bidders and how much prize amounts were
precisely payable to them also could not be ascertained. Unless these facts are concise with mathematical provisions placed before the Court, the
question of deciding in one way or other would not arise.
To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that just by picking holes in the case of the
Plaintiff and in its pleadings and evidence, throwing away the entire case would not serve the cause or justice and it would amount to throwing the
baby along with bath water. The Court itself in matters of this nature is enjoined to appoint, a Commissioner to take accounts as envisaged supra in
the judgment. But that was not done so. In the judgment of the lower Court there are versions to the effect picking holes in the case of the Plaintiff
but without considering that the Defendants also did not come forward with a wholesome plea backed by evidence. Undoubtedly the Plaintiff failed
to adduce proper evidence. In such a case, the proper course in my considered opinion is to remit the matter back to the lower Court.
So far as the finding of the lower Court that there was no evidence to show that the Managing Director, who signed the Plaint and verified it,
was not proved to be competent to do so, is patently erroneous. I would like to refer to Order 29, Rule 1 of CPC which would spotlight and
indicate pellucidly and palpably that the Director or the Principal Officer which includes the Managing Director of a Company, could vary well
represent the Company in a Suit.
The Trial Court dilated unnecessarily on the competence of the Managing Director to sign the Plaint on irrelevant considerations. Ex. A3, the
copy of the resolution passed by the Board of Directors was marked without any objection and in such a case, it was not open for the Defendant
to impeach the same at a latter point of time. In this connection, I would like to refer to the decision of the Hon''ble Apex Court reported in
Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, an excerpt from It would run thus:
An objection to the admissibility of the document can be raised before such endorsement is made and the Court is obliged to form its opinion
would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this
Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, where it was observed as follows: (SCC p. 764, para 20)
The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is
sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence
but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been
marked as ""an exhibit"", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in Appeal or
Revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair
play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure
the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to
abject allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other
hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and
pronounce its decision on the question of admissibility then and there;, and secondly, in the event of finding of the court on the mode of proof
sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular
mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such
practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a
prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to
be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a Superior Court.
(emphasis in original).
On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The Trial Court should
not have ""marked"" as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the Defendants. It
should have declined to take them on record as evidence and left the Plaintiff to support its case by whatever means it proposed rather than leaving
the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The
Appellant, therefore, had a legitimate grievance in Appeal about the way the trial proceeded.
Applying the dictum as found highlighted and spotlighted supra, to this factual matrix, it is glaringly and palpably clear that Ex. A3 is beyond
challenge at the instance of the Defendants.
Order 24, Rule 1 of CPC would contemplate either the Secretary or the Director or the Principal Officer, who could depose to the facts of the
case. Here there is nothing to indicate that Ravi, who signed as Managing Director was not conversant with the facts of the case. In such a case,
the finding of the Trial Court was totally unwarranted on this issue.
My mind is redolent and reminiscent of the following maxim:
Quando a liquid mandatur, mandatur et omne per quod pervenitur ad ilud When everything is commanded, everything by which it can be
accomplished is also commanded.
It is quite obvious and axiomatic that the Managing Director of a Company is the Principal Officer of the Company wielding enormous powers,
and it would be illogical to visualize that such a person is not competent to verify the Plaint and sign the same, on behalf of the Company.
At this juncture I recollect, the decision of this Court reported in M.G. Natesa Chettiar Vs. The Madras State Electricity Board, certain
excerpts from it would run thus:
...To take-up the first point; the Plaint has been signed and verified by the Superintending Engineer, Mettur Electricity System. The Plaintiff Board
came into existence on the 1st of July, 1957, under the Electricity (supply) Act LIV of 1948. u/s 12 of the Act the Board is a body corporate by
name having perpetual succession and a common seal. The relevant provision applicable in the matter of signing and verifying pleadings is Order
29, Rule 1 of the Code of Civil Procedure, which provides that any pleading in Suits by or against, a Corporation may be signed and verified on
behalf of the Corporation by the Secretary or by any Director or other Principal Officer of the Corporation, who is able to depose to the facts of
the case.
(emphasis supplied)
A mere running of the eye over the said decision and Order 29, Rule 1 of CPC, would show that in the cause title it is not at all necessary
while describing the Company that the said Registered Company is represented by the Manager, etc., because the Company itself is a corporate
body which is having legal personality, which can sue or be sued. The Officer, who signs it no doubt, should be a competent person of the
Company. In this case it is not in dispute that Ravi, the person who signed the Plaint and verified it, was the Managing Director at the relevant, time
of filing the Suit. In such a case, the finding of the lower Court that the filing of the Sunt was bad, in my opinion is not tenable and such a finding is
set aside.
on balance,--
(1) The first point is decided to the effect that the Suit was properly instituted.
(2) The second point is decided to the affect that the lower Court was not justified in placing reliance on certain excerpts from the deposition of
PW1 and comparing the same with the accounts and ultimately dismissing the Suit.
(3) The third point is decided to the effect that the lower Court should have ordered for appointment of an Auditor as Commissioner for taking
accounts for the purpose of rendering justice.
Accordingly, the matter, is remitted back to the lower Court with the following direction:
The lower Court shall do well to see that a qualified Auditor is appointed as Commissioner to go into the accounts which were already produced
and to be produced by both sides relating to the loans borrowed by D1 to D3 and also the chits subscribed by D1 to D3 and also D1''s two sons
and two daughters-in-law and furnish his report, whereupon, both sides shall be permitted to file their objections and also adduce additional
evidence both oral and documentary; whereupon the Court has to decide the issues untrammelled and uninfluenced by any of the observations
made by this Court in this judgment. The lower Court shall do well to see that the matter is disposed of within a period of four months from this
date of receipt of a copy of this order.
Both parties shall appear before the lower Court on 4.12.2012.
Accordingly, this Appeal is disposed of. However, there shall be no order as to costs.