IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:9.4.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.234 of 2007 and M.P.No.1 of 2007 1.K.Saravanakumar 2.N.Mahalakshmi 3.S.Krishnan ... Appellants vs. Dhinamalar, Daily Newspaper, rep.by its Partner R.Sathyamoorthy rep.by its recognised agent/power of attorney R.Ramasubramaniyam ... Respondent This second appeal is filed against the judgement and decree dated 21.10.2005 passed in A.S.No.103 of 2005 by the Principal Subordinate Judge, Salem, confirming the judgement and decree dated 24.2.2005 passed by the Principal District Munsif, Salem, in 389 of 2001. For Appellants : No appearance For Respondents : No appearance JUDGMENT
This second appeal is focussed by the defendants, animadverting upon the judgement and decree dated dated 21.10.2005 passed in A.S.No.103 of 2005 by the Principal Subordinate Judge, Salem, confirming the judgement and decree dated 24.2.2005 passed by the Principal District Munsif, Salem, in 389 of 2001, which was filed for recovery of a sum of Rs.26,494/-. For the sake of convenience, the parties are referred to hereunder according to their letigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
The respondent/plaintiff, filed the suit O.S.No.389 of 2001 as against the defendants for recovery of a sum of Rs.26,494/- with subsequent interest and cost. The defendants entered appearance and filed the written statements.
3. The trial Court framed the relevant issues. During enquiry, the plaintiff examined himself as P.W.1 and Exs.A1 and A4 got marked marked. On the defendants’ side the first defendant examined himself as D.W.1 and no document was marked.
4. Ultimately, the trial Court partly decreed the suit, as against which, the defendants preferred the appeal A.S.No.103 of 2005, which was dismissed by the first appellate Court, confirming the the judgement and decree of the trial Court.
5. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, the defendants filed this second appeal on various grounds and also suggesting the following substantial questions of law.
“a Whether the judgement rendered by the lower appellate is in conformity with the order 41 rule 31 of CPC and the dictum laid down in 1997(1) CTC 26 and 2002(5) CTC 740 and 2004(2) MLJ 283?
b. Is there any documentary evidence being produced before the courts below to establish the concluded contract between the parties to show the jural relationship of principal and agent between the parties to the suit.?
c. Whether the courts below justified in foisting the liability on the appellants on the strength of an application for agency in the absence of any documentary evidence for acceptance of such an offer?
d. Is not the duty of the principal to hand over the alleged dishonoured cheques to the agent to initiate further course of action to recover the amount from the advertisers to safeguard the interest of the agent to recover the amount?(extracted as such)
6. A deep analysis of and poring over of the typed set of papers, including the judgements of both the Courts below would display and demonstrate that the plaintiff filed the suit for recovery of dues payable by D1 (the plaintiff’s advertising agent) as well as D2 and D3-the guarantors, on the ground that as per the accounts maintained by the plaintiff, D1 committed default in paying the dues.
7. Remonstrating and refuting, impugning and gainsaying the stand of the plaintiff, the defendants would contend that D1 was only an advertising canvasser and not agent of the plaintiff and that he never undertook to pay the dues of the advertisers, who got their advertisements published in the Dinamalar Daily Newspaper. The job of D1 was to collect advertisements from advertisers and help the plaintiff to publish the advertisements and if at all there are any dues payable by the advertisers, the same have to be recovered by the plaintiff from them directly and not from D1.
8. Both the Courts below adverting to the documents marked during trial gave a finding that D1 was the plaintiff’s agent, who categorically undertook, as per Ex.A1, to perform the duty of collecting the dues from the advertisers concerned, and remit the same to the plaintiff. The first appellate Court in paragraph 16 extracted the relevant portion of Ex.A1 and discussed and decided that D1 was the agent of the plaintiff and he was responsible for the payment also. Ex.A4 comprised of advertisement bills given by Dinamalar Daily Newspaper with the statement of accounts, over which there is no controversy.
9. The contention of the defendants was that the plaintiff instead of collecting the dues from the defaulters, had chosen to focus its attention as against the defendants. The records would bespeak and demonstrate that the plaintiff agreed to pay 15% commission to D1 for the service undertaken to be performed by him and D2 and D3, as per Ex.A2, stood as guarantors for the due performance of the duties by D1. Both the Courts below also, while ordering payment to be made by the defendants in favour of the plaintiff, deducted the commission, to which D1 is entitled. As such, for commission, D1 agreed to collect the money from the persons concerned, who are adverting in Dinamalar and pay it to Dinamalar, but D1 failed to do so.
10. Both the Courts below au fait with law and au courant with facts correctly and that too keeping the sense of perspectivity about what were placed as evidence during trial decided in favour of the plaintiff and as against the defendants. However, in the grounds of second appeal the defendants would try to project as though both the Courts below have not decided based on the documents, the actual relationship between the plaintiff and the defendants. Whereas, the first appellate Court, by extracting certain excerpts from Exs.A1 and A2, clearly held that D1 was the agent of the plaintiff and D2 and D3 stood as guarantors for the due performance of the duties by D1. Hence, the contentions, as put forth in the second appeal, are totally untenable.
11. The proposed substantial question of law (a) is based on Order 41 Rule 31 of C.P.C, which contemplates as to what are all should be in the judgement of the first appellate Court.
12. Here the bare perusal of the first appellate Court’s judgement would clearly evince that the first appellate Judge point wise discussed and that too by extracting the relevant portions of the documents and arrived at the conclusion. As such, I could see no violation of Order 41 Rule 31 of C.P.C.
13. The suggested substantial questions of law (b and (c) are by way of raising the defendant’s accusative finger as against both the Courts below for having allegedly rendered the judgement, without evidence and without applying law.
14. My discussion supra would indicate that the Courts below, after analysing the evidence both oral and documentary, arrived at the conclusion, which warrants no interference by this Court.
15. As far as the suggested substantial question of law (d) is concerned, it is on the alleged fact that the plaintiff did not return back the cheques. The very contention of the defendants would go against such substantial question of law, because it is the case of the defendants that it was for the plaintiff to recover the amount and not for the defendants and as such, they never pleaded for return of those four cheques and they never got any issue framed in that aspect.
16. In the result, the judgements and decrees of both the Courts below are confirmed and the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk 9.4.2009 Index:Yes/No Internet:Yes/No To 1. The Principal Subordinate Judge, Salem 2. The Principal District Munsif, Salem G.RAJASURIA,J. msk S.A.No.234 of 2007 9.4.2009