The Managing Director vs Anandharaman And Others

The Revision Petitioner is R-41 Srivilliputhur Agricultural Producer Co-operative Marketing Society and it is their case that the 1st Respondent herein being the member of the Society entered into an agreement with the Petitioner's Society on 07.12.1995. The Petitioner's Society used to supply cotton to the 1st Respondent herein by procuring cotton from various other Societies under cotton dept scheme. In the said transaction the 1st Respondent was due to the Petitioner's Society to the tune of Rs.23,25,679.10 towards sale amount and Rs.21,68,427.10 towards subsequent interest totally a sum of Rs.44,94,106.20 as on 1998. In order to recover the said amount the Petitioner Society instituted Tha.Va.No.91 of 1998-1999 before the 2nd Respondent herein and the same was decreed by order dated 22.02.2000 directing the 1st Respondent to pay a sum of Rs.55,29,840.37 with 20% interest. Aggrieved over the same, the 1st Respondent herein filed appeal in C.M.A.(C.S).No.4 of 2008 before the learned Principal District Court at Srivilliputhur and the same was partly allowed by order dated 28.11.2014 by directing the 1st Respondent herein to pay a sum of Rs.3,81,630.10 to the Petitioner Society and to pay interest for the said amount at the rate of 18.5% from 31.03.1998 onwards till the date of realization. Feeling aggrieved over the same, the Petitioner herein filed this Civil Revision Petition.

The learned counsel for the Petitioner contented that the 1st Respondent herein is liable to pay a sum of Rs.84,77,404.37 to the Petitioner herein regarding purchase of cotton. Since the 1st Respondent herein has not paid the said amount, the Petitioner has initiated Tha.Va.No.91 of 1998-1999 before the 2nd Respondent herein. The 2nd Respondent herein by order dated 31.08.2004 directed the 1st Respondent herein to pay a sum of Rs.41,26,803.37 with principal and interest till 31.03.1998. From 01.04.1998 onwards interest was awarded at the rate of 18.5%.

The learned counsel would further submit that the court below has not at all considered and discussed the 11 documents filed by the Petitioner herein while deciding the appeal. Hence the order passed by the learned District Judge is warranting interference by this Hon'ble Court. Further, the 1st Respondent herein has filed an Insolvency Petition in I.P.No.10 of 2003 as against the Petitioner herein and 3 others before the Sub-Court, Srivilliputhur wherein the 1st Respondent herein has admitted the amount due to the Petitioner herein and the same is described as 1st item in 1st schedule. The 1st Respondent herein has sought for equal distribution of his assets as shown in the 2nd schedule to all his creditors including the Petitioner herein. So from the insolvency Petition it is crystal clear that, the 1st Respondent herein is due to the Petitioner's society to the tune of Rs. 95,98,183.00. However, the Learned District Judge has failed to consider the said fact, has erroneously partly allowed the appeal filed by the 1st Respondent herein. Hence the order and decree passed by the Tribunal below is liable to be set aside. Though the petitioner herein filed the copy of I.P petition in the appeal along with Legal Notice as item No:7 in the list of documents, due to inadvertence the said petition was not marked in the above C.M.A. Hence, the Petitioner herein has filed an application to receive the certified copy of Petition in I.P.No.10 of 2003 as additional evidence in this CRP and the learned counsel for the petitioner prays that the said petition may be received as additional evidence and the case may be remitted back to the Principal District Court at Srivilliputtur for fresh consideration on the basis of the additional document. On the side of the 1st Respondent herein neither oral evidence nor documentary evidence is produced. In the absence of any documentary evidence to show that the Petitioner's Society is due to the 1st Respondent herein nearly about 20 lakhs arrived at by the court below is highly arbitrary and unsustainable in law and so it is liable to be set aside.

Per contra, the learned counsel for the 1st Respondent submitted that the order passed by the Learned Principal District Judge, Srivilliputhur is perfectly correct and the same is not required interference by this Hon'ble Court. The finding rendered by the learned Judge regarding the amount dues to the 1st Respondent herein by the various other Society has to be collected by the Petitioner's Society and the said amount has to be given credit to the account of the 1st Respondent herein does not warrant any interference at all. The said finding is rendered only after considering the case of the 1st Respondent herein in detail. Further, the learned counsel for the 1st Respondent would submit that the reception of additional document sought for by the Petitioner herein cannot be accepted, since the explanation offered by the Petitioner is not valid one. The Revision Petitioner is aware about the filing of I.P by the 1st Respondent herein and therefore they would have filed the Certificate copy of Petition in I.P.No.10 of 2003 before the learned Principal District Court at Srivilliputhur itself. Now, the Petitioner cannot fill up the Lacuna in this Civil Revision Petition by filing the said document which he failed to mark it before the Court below. Therefore, he prays to dismiss the Civil Revision Petition.

I heard Mr.M.Thirunavukkarasu, learned counsel for the petitioner, Mr.P.Santhosh Kumar, learned counsel for the 1st respondent and M/s.V.P.M.Vaishnavi, learned Government Advocate for the 2nd respondent and perused the entire materials available on record.

At the outset, it is to be noticed that on the side of the Petitioner herein, before the learned Principal District Court, 11 documents have been marked to substantiate their claim. But the perusal of the order made in C.M.A(CS).No.4 of 2005 discloses that the learned Judge has simply mentioned the nature of documents alone in the Judgment, except that there was no discussion about the same. The Court below being the appellate forum against the order passed by the quasi judicial authority ought to have discussed all the facts and law based upon the oral and documentary evidence produced and marked but the same is not traceable from the impugned order.

That apart, in the Petition filed to receive the documents in I.A.No.33 of 2008 in CMA(CS).No.4 of 2005 filed under Order 41, Rule 27 CPC, in S.No.7 the petitioner society have mentioned notice and copy of petition in I.P., sent by appellant/1st respondent herein to Petitioner Society and also enclosed the copy of petition in I.P.No.10 of 2003. Though the court below marked the above document the list of documents mentioned in the judgment shows only summon is marked while the served copy of petition along with the summon is produced. It is seen from the list of documents the copy of petition is not marked while the same is an annexure to summon.

Further, there is no quarrel over the filing of I.P.No.10 of 2003 by the 1st Respondent herein. In the said I.P. it has been clearly stated that the 1st Respondent herein is due to the Petitioner herein to the tune of Rs.95,98,183.00/-. Since the said I.P. petition was not marked, the Court below has not considered the same. The revision petitioner has filed M.P.No.1 of 2015 to receive the said I.P. Petition as additional evidence in this Civil Revision Petition. The fact remains that the petition was already received along with summon however the mistake is committed by not marking the document. As such the reception of document itself not necessary however to avoid unnecessary confusions the petition filed to receive the additional documents is allowed.

The Hon'ble Supreme Court in Brihanmumbai Mahanagar Palika v. Akruti Nirman (P) Ltd., case reported in (2008) 3 SCC 78 has held as follows:

"3. Though many points were urged in support of the appeal, the main plank of the argument of learned counsel for the appellants was that the High Court has not applied its mind to various points urged and after noting the submissions came to abrupt conclusions. In other words it is submitted that the judgment is practically non-reasoned.

Learned counsel for the respondents on the other hand said that though elaborate analysis has not been made, yet the conclusions have been arrived at after noting the submissions.

It is to be noted that various contentious pleas were raised in the appeal. The High Court ought to have analysed the factual position in the background of principles of law involved and then to decide the appeal. That has not been done.

It is to be noted that after making detailed reference to the arguments and contentions raised, abrupt conclusions were arrived at by the High Court. That is not a proper way to dispose of the first appeal.

In the circumstances without expressing any opinion on the merits of the case, we set aside the impugned judgment of the High Court and remit the matter to it for fresh consideration on merit in accordance with law."

Considering the above said facts and the judgment of Hon'ble Supreme Court, and in the present case also the court below has not considered and discussed all the documents marked on the side of the petitioner but simply given a finding based upon the facts alleged by the respondent alone. Further the court below has given a finding the outstanding available with the private parties can be recovered from those persons by the Society also not correct since the very issue itself by not collecting the due the respondent committed loss to the society. It is also to keep in mind that the time barred debt cannot be collected by the society, thus on account of fault committed by the respondent the society cannot be made to suffer. It is pertinent to note that those private parties who are having dues are not parties to the present appeal, as such the failure of the respondent to collect the due to the society cannot be shifted and the same has to be fixed on the respondent only. Thus this Court feels that the matter is to be remanded to the court below for consideration of the matter on merits based upon the documents.

In view of the discussion made above M.P.No.1 of 2015 to receive additional document viz., Petition copy in I.P.No.10 of 2003 is allowed and the learned Principal District Court, Virudhunagar District at Srivilliputtur is directed to mark copy of Petition in I.P.No.10 of 2003 as Ex.R12 in C.M.A.(CS).No.4 of 2005. When the materials are available on records, the Court below should have decided and disposed the CMA on merits after considering all the documents filed by the Revision Petitioner. Therefore, taking into consideration of the facts and circumstances of the case and since the Court below has not discussed the documents filed by the Petitioner herein, this Court, in order to meet the ends of Justice, is of the opinion that this CRP is liable to be allowed and the above C.M.A.(C.S)No.4 of 2005 is liable to be remitted back to the lower Court for rendering substantial Justice to the parties.

12.For the foregoing reason, I am of the considered view that the Civil Revision Petition is liable to be allowed and the matter is remitted back to the Court below to decide the C.M.A. afresh after considering the entire documents i.e., Exs.R1 to R12.

In the result:

(a) this Civil Revision Petition is allowed and the order and decree made in C.M.A.(CS).No.4 of 2005 dated 28.11.2014 is hereby set aside and the same is remitted back to the file of the Learned Principal District Court, Virudhunagar District at Srivilliputhur;

(b) the learned Principal District Judge, Virudhunagar District at Srivilliputhur, is directed to hear the C.M.A(C.S)No.4 of 2005 afresh and decide the same in the light of the observation made above;

(c) the learned Principal District Judge is further directed to dispose of the C.M.A. within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.