IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1304 of 2008()
1. T.L.SEBASTIAN, S/O.T.C.LUKOSE, AGED 60
... Petitioner
2. MARY SEBASTIAN, W/O.T.L.SEBASTIAN,
Vs
1. P.V.C.CHIT FUND, A FIRM REG.UNDER THE
... Respondent
For Petitioner :SRI.KOSHY GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :28/05/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 1304 of 2008
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Dated this the 28th day of May, 2009
JUDGMENT
This Second Appeal is directed against the judgment and
decree in A.S. 89/2005 on the file of the Additional District Court
(Special) Kottayam arises from the judgment and decree in O.S. No.
479/2003 of the Principal Munsiff’s Court, Kottayam. The respondent
herein, a Chitty Company filed the suit for realisation of money. The suit
was decreed by the trial court and confirmed in appeal by the lower
appellate court with a slight modification regarding the percentage of
interest Hence this Second Appeal is filed by the defendants in the suit.
The parties hereinafter referred to as plaintiff and defendants.
2. The 1st defendant subscribed for ‘A’ class ticket in the chitty
conducted by the Jammu Tawi branch of the plaintiff firm. The sala of
the Chitty was Rs. 1 lakh having 100 instalments of Rs. 1,000/- per month.
The chitty was started on 17.2.1997. In the auction held on 18.10.1999 for
the 34th instalment the 1st defendant bid in auction through proxy and the
prized amount was Rs. 60,000/- . After complying with all other
formalities the parties entered into an agreement whereby the
defendants acknowledged receipt of Rs. 60,000/- and undertook to pay
the future intalments of Rs. 1,000/- each per instalment without default till
the termination of the chitty. As collateral security the defendants
R.S.A 1304 of 2008 -2-
deposited original pattayam No. 377 of 1986 of the Kottayam Land Tribunal
in respect of 14 Cents of land which belong to one Sri.Sebastian.
According to the plaintiff, the defendants paid subsequent instalments
upto instalment No.64 and defaulted later instalments. Hence the plaintiff
filed the suit for realisation of money.
3. The suit was resisted by the defendants contending interalia
that the amount claimed by the plaintiff is on the basis of illegal
transaction. The defendants denied the fact that the 1st defendant was a
subscriber in the plaintiff’s chitty started through it’s Jammu Tawi Branch .
They admitted that the 1st defendant was a subscriber in a chitty with a
sala of Rs. 1 lakh having 100 instalments of Rs. 1000/- per month.
According to the defendants the documents produced by the plaintiff in
the suit are not genuine and fabricated and therefore not binding on
them.
4. From the side of the plaintiff PW1 was examined and Exts. A1
to A10 were marked. DWs 1 and 2 were examined on the defendants’
side
5. According to the defendants the suit was hit by 69(2) of the
Indian Partnership Act and the same is not maintainable. The trial court
held that the plaintiff is a firm registered under the Indian Partnership Act
having its its registered Head Office at Kottayam and Branch Office at
Jammu Tawi The trial court also held that there is no merit in the
R.S.A 1304 of 2008 -3-
contentions raised by the defendants. Even before this Court the
appellants/ defendants have no case that the plaintiff firm is an
unregistered one.
6. It is not disputed that the 1st defendant subscribed a chitty
the sala of which is Rs.1 lakh having 100 instalments of Rs. 1,000/- per
month. But it is contended that the plaintiff made the defendants to believe
that the chitty is started from the plaintiff’s Head Office at Kottayam.
The trial court also noted the admission of DW1 that his signature in
Ext.A1 Thalavariola and also the fact that he executed the same at the
time of subscribing the ticket for the chitty. He also admitted his signature
in Exts. A2 to A5 documents. In Ext.A1 Thalavariyola it is specifically
stated that the foreman of the chitty is the PVC chit Funds( Branch) 29/B
Patel Nagar 1 Morh, Gandhi Nagar, Jammu Tawi having its registered
Head Office at Vicotory Buildings Kottayam-2 Kerala State. Relying on
Ext.A1 Thalavariyola the trial court found no merit in the contentions
advanced by the defendants. The contentions of the defendants that the
Chitty is not registered as per the provisions of the Kerala Chitties Act
1975, that the alleged transaction is void and opposed to public policy
and the same is hit by Section 23 of the Indian Contract Act were also
considered in detail by the trial court. After a careful consideration of the
entire evidence, facts and materials the trial court held that the plaintiff
is entitled to realise the suit amount from the defendants .
R.S.A 1304 of 2008 -4-
In appeal the lower appellate court re-appreciated the evidence
and re-analysed the facts and materials in detail and held that the
contentions raised by the defendants in the suit cannot stand. The lower
appellate court found no reasons to take a different view in the matter, but
reduced the rate of interest from18% to 12% till the date of filing of the
appeal ,and the future interest at 6%. The learned counsel for the
appellants/defendants has taken this Court’s attention to all the relevant
provisions of the Indian Partnership Act, Indian Contract Act, Evidence Act
and the Code of Civil Procedure. I find no reason to interfere with the
concurrent findings entered by the courts below The courts below rightly
answered all the technical contentions raised by the defendants. I find no
merit and no grounds in this appeal to invoke section 100 of the C.P.C .
Accordingly this appeal is dismissed.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A.No. 1304 of 2008
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JUDGMENT
28th May, 2009