IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 906 of 2009()
1. KENADY, S/O.POULOSE, AGED 42,
... Petitioner
2. MARY, AGED 68, W/O.POULOSE,
Vs
1. POULOSE, AGED 45, S/O.KURIAKOSE,
... Respondent
2. PAULSON, AGED 41, S/O.POULOSE,
3. BABU, AGED 39, S/O.POULOSE,
4. MINI, AGED 37, D/O.POULOSE,
For Petitioner :SRI.V.G.SANKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/10/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.906 of 2009
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Dated this the 29th day of October, 2009.
JUDGMENT
Second Appeal arises from judgment and decree of learned Additional
District Judge, North Paravur in A.S. No.233 of 2006 confirming judgment and
decree of learned Additional Sub Judge, North Paravur in O.S.No.384 of 1999
granting decree in favour of the plaintiff. Appeal is at the instance of defendant
Nos.2 and 3. Following question is urged as substantial question of law:
Whether on the frame of the suit plaintiff could have sustained the suit
and obtained a decree for realization of money in his favour?
Parties are referred to as plaintiff and defendants as in the trial court for
convenience.
2. Defendant No.1 died pending the appeal and his legal
representatives are impleaded as supplemental defendants. Defendant No.2 is
a vendor in marble. According to the plaintiff, on 14.1.1999 defendant No.2
entered into a contract with one Jose agreeing to supply 4050 sq. ft. of marble at
the rate of Rs.50/- per feet. The agreement was to supply marble at the work
site of the said Jose. Plaintiff was the mediator and signatory in the agreement
executed between Jose and defendant No.2. Plaintiff had a contract with the
said Jose for the purpose of laying marble. Jose gave Rs.1,30,000/- to
defendant No.2 on the date of agreement and the latter issued a cheque as
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security to the said Jose. Though Jose gave Rs.1,30,000/- to defendant No.2, in
the agreement that was executed the amount covered by the cheque was
wrongly stated as Rs.1,50,000/-. Marble supplied by defendant No.2 was of low
quality. Defendant Nos.1 and 2 approached the said Jose to settle the issue. In
the mediation plaintiff also took part. Defendant Nos.1 and 2 agreed to take
back the marble already unloaded at the work site and return the advance
amount within fortyfive days. An agreement was executed to that effect. The
agreement stipulated that defendant Nos.1 and 2 will be liable to pay the amount
with interest. The agreement further stipulated that since Jose was going
abroad, plaintiff could initiate action on behalf of the said Jose. On 3.6.1999
defendant Nos.1 and 2 paid Rs.30,000/- to the plaintiff. For the balance amount
notice was issued to defendant No.2. Since the balance amount was not paid,
plaintiff filed the suit. Defendants admitted the agreement and stated that
defendant No.2 had taken advance of Rs.1,30,000/- from Jose but denied that
he had supplied low quality marble. There was no breach of contract on his part.
Defendant No.2 had to spent Rs.50,000/- towards transportation charges.
Agreement relied on by the plaintiff is obtained by coercion. Defendant Nos.1
and 2 admitted receipt of Rs.1,30,000/- as advance at the time of execution of
agreement and claimed that defendant No.2 paid Rs.30,000/- to the plaintiff on
3.6.1999. Plaintiff produced Exts.A1 to A4 and gave evidence as PW1.
Defendant No.2 gave evidence as DW1 and proved Ext.B1, cash receipt dated
3.6.1999. Learned Munsiff found that plaintiff is entitled to realize the balance
sum of Rupees one lakh with interest and granted decree accordingly allowing
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plaintiff to realize the said amount from the defendants. First appellate court
confirmed the judgment and decree. It is contended by learned counsel that
there is no privity of contract between defendant No.2 and the plaintiff and hence
plaintiff could not have on his own laid the suit seeking decree for realization of
the amount. It is also contended by learned counsel that in view of Section 230
of the Indian Contract Act (for short, “the Act”) plaintiff as the agent of the said
Jose could not personally enforce the contract entered into by him on behalf of
the principal.
3. No doubt, suit is filed by one Poulose while the transaction and
the agreement were between defendant Nos.1 and 2 and Jose. The relief
claimed in the plaint is in favour of the plaintiff, Poulose. What the learned
counsel argued is that Poulose has no right to file a suit as his own, he could
have filed a suit on behalf of and representing the said Jose who had contract
with defendant Nos.1 and 2. It is in the above circumstance that learned counsel
placed reliance on Section 230 of the Act. I stated that in the plaint the person
who figures as plaintiff is Poulose. But I find from the averments in paragraph
No.9 that the said Jose who is a party to the agreement is abroad and that in the
agreement dated 2.2.1999 (Ext.A2) plaintiff has been authorized to do
whatever required on behalf of the said Jose (in connection with the transaction
and agreement). A reading of the plaint as a whole would show that though
Poulose figures as the plaintiff, he i s not claiming any right for himself but is
only enforcing the claim of Jose though, it is not stated in so many words. I do
not forget that the more proper way of drafting the plaint would have been to
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describe Jose as the plaintiff represented by Poulose as his agent. It is not
disputed that plaintiff is also a signatory in Ext.A2 and it is stated therein that
plaintiff is authorized to do whatever is required to be done on behalf of Jose.
Defendant Nos.1 and 2 are also parties in Ext.A2. Reading of Ext.A2 and the
plaint as a whole, it leads me to the conclusion that this is not a case where
plaintiff is enforcing any personal claim but, suing on behalf of Jose though,
cause title does not properly describe the plaintiff. That need only be understood
as an inartistic drafting of the plaint which cannot affect the substratum of the
case pleaded by the plaintiff. So much so the question of invoking Section 230
of the Act does not arise. In holding so I also bear in mind that it is not disputed
that the sum of Rs.30,000/- was paid by defendant No.2 to the plaintiff as per
Ext.B1, receipt dated 3.6.1999, necessarily a payment made on behalf of Jose.
A further fact to be borne in mind is that the sum of Rs.48,500/- realized by the
sale of marble was deposited by the advocate commissioner in court and, with
the consent of the defendants that amount was allowed to be withdrawn by the
plaintiff, certainly on behalf of Jose. In the circumstances, I am satisfied that the
claim laid is on behalf of Jose.
4. Apprehension raised by learned counsel for defendants is that in
the manner the suit is framed and decree is passed payment of the decree
amount may not discharge liability of the defendants to the said Jose. That
apprehension in my view has no basis since I have stated from the pleadings
and the relevant documents that the suit has been brought on behalf of said
Jose and hence payment of the decree amount should be treated as a payment
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on behalf of Jose. At any rate, it is open to the executing court to consider
whether before plaintiff is permitted to withdraw the amount if any deposited by
the defendants he should be directed to produce a power of attorney or such
other relevant document authorizing him to withdraw the amount on behalf of
the said Jose.
5. On hearing learned counsel and going through the judgments and
decrees under challenge I do not find any substantial question of law requiring
admission and issue of notice to the respondents.
The Second Appeal is dismissed in limine.
THOMAS P.JOSEPH,
Judge.
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