IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07-07-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No. 559 of 2008
1.M/s.Sree Gokulam Chit and Finance
Company (P) Limited, Represented by its Director,
Mr.A.M.Gopalan,
No.66, Arcot Road, Kodambakkam,
Chennai-600 024.
2.Mr.A.M.Gopalan
3.The Manager,
M/s.Sree Gokulam Chit and Finance
Company (P) Limited,
No.41, New Scheme Road, Pollachi-2. .. Appellants.
Versus
G.Vijayakumar .. Respondent.
PRAYER: Appeal against the judgment and decree made in A.S.No.108 of 2007, dated 18.3.2008, on the file of the learned First Additional District Judge, Coimbatore, confirming the judgment and decree made in O.S.No.172 of 2004, dated 7.2.2007, on the file of the Subordinate Court, Pollachi.
For Appellants : Mr.L.Rajasekar
For Respondent : Mr.MA.P.Thangavel
J U D G M E N T
This second appeal has been filed against the judgment and decree, dated 18.3.2008, made in A.S.No.108 of 2007, on the file of the First Additional District Court, Coimbatore, confirming the judgment and decree of the Subordinate Court, Pollachi, dated 7.2.2007, made in O.S.No.172 of 2004.
2. The defendants in the suit, in O.S.No.172 of 2004, are the appellants in the present second appeal. The respondent herein, had filed the suit on the file of the Subordinate Court, Pollachi, for recovery of a sum of Rs.2,25,000/-, with interest thereon.
3. The claim of the plaintiff was that he had paid money to the defendants, for four chits, amounting to Rs.2,25,000/-. Pass books had also been issued by the defendants acknowledging the payment of money by the plaintiff. Due to certain disputes that had arisen between the plaintiff and the defendants the plaintiff had stopped paying the remaining amounts for the chits. When the plaintiff had demanded the repayment of the money, the defendants had refused to repay the same, due to which the plaintiff was compelled to file the suit.
4. It had also been stated that the plaintiff is not entitled to file a suit, as the chits had been registered. Though the payment of money by the plaintiff had been admitted by the defendants it had been contended that, the filing of the suit by the plaintiff is barred by Section 64 of the Chit Funds Act, 1982, relating to the disputes arising out of the chit transactions. It had also been submitted that the claim of the plaintiff in the suit is part and parcel of the claim made by the second defendant in the suit, in C.S.No.581 of 2003, pending on the file of the High court of Judicature at Madras.
5. It had also been submitted that the chit groups were registered at Kodambakkam and the Registrar of Chits, Kodambakkam, is the competent authority to deal with the disputes, if any, after the matter is referred to the arbitrator at Chennai, who has the jurisdiction to deal with the matter. It had also been stated that the plaintiff has been a customer of the defendant chit company for more than seven years and he has been a subscriber in more than 100 chit groups. He has received more than rupees one crore, as the successful bidder in the auction of the chits conducted by the defendants. In such circumstances, the suit filed by the plaintiff is not maintainable, both on merits and in law.
6. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
1) Whether the plaintiff is entitled to receive the amounts claimed by him in the suit from the defendants?
2) What relief the plaintiff is entitled to?
7. The following additional issue had been framed by the trial Court, on 15.2.2006.
Whether the trial Court was having the jurisdiction to try the suit?
8. Considering the contentions raised on behalf of the plaintiff, as well as the defendants, and in view of the evidence available on record, the trial Court had decreed the suit in favour of the plaintiff .
9. The plaintiff had relied on Exs.A-1 to A-40 in support of his claims, while the defendants had relied on Exs.B-1 to B-8 to show that the chits had been registered and that the suit filed by the plaintiff is not maintainable, in accordance with Section 64(3) of the Chit Funds Act. 1982.
10. The trial Court had found, on facts, that the chits were unregistered. It had also found that there were discrepancies, while comparing the documents filed by the plaintiff and the documents filed by the defendants. Even though the defendants had filed Exs.B-1 to B-8 to show that the four chits, in respect of which the plaintiff has made his claim, had been registered, the trial Court had found that they cannot be taken as sufficient evidence, without other supporting documents for accepting the claim of the defendants.
11. It had also been held that they do not relate to the entries in the pass books given to the plaintiff. Therefore, the claim of the defendants that the suit is not maintainable in view of Section 64(3) of the Chit Funds Act, 1982, had not been accepted by the trial Court. In such circumstances, the trial Court had decreed the suit, as prayed for by the plaintiff, by its judgment and decree, dated 7.2.2007, made in O.S.No.172 of 2004.
12. Aggrieved by the judgment and decree of the trial Court, dated 7.2.2007, made in O.S.No.172 of 2004, the defendants had filed an appeal on the file of the First Additional District Court, Coimbatore, in A.S.No.108 of 2007.
13. The defendants, who had filed the appeal, had contended before the First Appellate Court that the trial Court had failed to consider the documentary evidence and the pleadings of the defendants in their proper perspective. It had also been contended that the trial Court had failed to note that Exhibits B-1 to B-4, filed by the defendants, had been issued by the Registrar of Chits, Kodambakkam, and that they were bearing the seal of the Registrar. It had also been stated that the trial Court had failed to note that only after enrolling the required number of subscribers the chit is registered. The trial Court had erred in coming to the conclusion that the chits were unregistered chits based on the reason that the receipts given to the plaintiff, by the defendants, were not bearing the register number. The trial Court had come to the erroneous conclusion that the suit was maintainable, even though the chits had been registered before the Registrar of Chits, Kodambakkam, Chennai.
14. The First Appellate Court had framed the following points for consideration:
1) Whether the judgment and decree of the trial Court is liable to be set aside.
2) What relief the appellants are entitled to?
15. In view of the submissions made on behalf of the appellants and the respondent in the appeal, and on a perusal of the evidence available on record, the First Appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 18.3.2008, made in A.S.No.108 of 2007.
16. The First Appellate Court had declined to accept the contentions raised on behalf of the appellants that the suit filed by the plaintiff, the respondent in the first appeal, as not maintainable. The First Appellate Court had also come to the conclusion that the defendants in the suit, who were the appellants in the first appeal, could not show, by sufficient evidence, that the chits, in respect of which the suit had been filed, had been registered. Since, it was an admitted fact that the plaintiff has paid the amount, as claimed by him, for the four chits, the First Appellate Court had also come to the conclusion that the appellants were liable to repay the amounts to the respondent in the appeal, along with the interest, as decreed by the trial Court.
17. Aggrieved by the judgment and decree of the First Appellate Court, dated 18.3.2008, made in A.S.No.108 of 2007, the appellants had filed the present second appeal raising the following questions, as substantial questions of law:
1) The Appellate Court ought to have seen that the suit is hit by Section 64(3) of the Chit Funds Act.
2) The Appellate Court ought to have seen that the trial has rendered a findings that the Chits are registered one and once it is concluded that the chits are registered, then the adjudication of the dispute by the Civil Court is not legally correct.
3) The Trial Court and the Appellate Court ought to have seen that the burden is on the plaintiff to prove his case. But, both the Courts have erred in rendering a findings that the appellants/defendants have failed to prove the registration status of the chits pertaining to Exs.A-14 to A-17.
4) The trial and the appellate Courts have adjudicated the grievance of the respondent/plaintiff without jurisdiction?
18. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the Courts below are erroneous, invalid and liable to be set aside, as they are against the weight of evidence, the probabilities of the case and the principles of natural justice. It had also been stated that the Courts below had ignored the oral evidence adduced by D.W.1 and had, instead relied on extraneous materials and circumstances, to come to their conclusions. Both the Courts below had erred in not accepting Exs.B-1 to B-8, regarding the issue relating to the registration of the Chits in question. The findings of the Courts below that there were discrepancies in the pass books, marked as Exs.A-14 to A-17, cannot be accepted to be correct. The Courts below ought to have seen that the burden was on the plaintiff in the suit, who is the respondent in the present second appeal, to prove that the chits were unregistered chits. The learned counsel for the appellants had also stated that there was no pleading by the plaintiff that Exs.B-1 to B-8 relate to some other chit groups.
19. The learned counsel had also submitted that Exs.B-1 to B-4, were sufficient proof to show that the chits in question had been registered before the Registrar of Chits, Kodambakkam, Chennai. In the absence of contrary evidence to disprove the said documents, the Courts below ought to have taken them to be valid evidence to substantiate the claims made by the defendants. It had also been submitted that the Courts below ought to have seen that the plaintiff had not taken appropriate steps to summon the Registrar of Chits to disprove the claims made on behalf of the defendants. The Courts below ought to have seen that the plaintiff is a default subscriber. Further, the Courts below ought to have held that Section 64(3) of the Chit Funds Act, 1982, would be applicable to the present case and that the suit filed by the plaintiff cannot be held to be maintainable.
20. Per contra, the learned counsel appearing on behalf of the respondent had submitted that there is nothing in the written statement that the four chits in question are registered chits. It had been admitted by D.W.1 that the chits had not been registered at the time when the pass books, relating to the chits, had been given to the plaintiff. Both the Courts below had found, on facts, based on sufficient evidence, that the chits were unregistered chits and therefore, the provisions of Chits Funds Act, 1982, would not be applicable to the present case.
21. The learned counsel had also stated that the defendants had not denied the claim made by the plaintiff, with regard to the unregistered status of the chits, even in the additional written statement filed on their behalf. The Courts below had rightly appreciated the evidence available on record, while coming to their conclusions. The Courts below had taken note of the fact that there were discrepancies found to be existing in the markings in the pass books given to the plaintiff, marked as Exs.A-14 to A-17, and in the documents marked by the plaintiff, as Exs.A-2 to A-4, and in the documents marked by the defendants, as Exs.B-1 to B-8. Further, the Courts below had taken note of the fact that the plaintiff had lodged a number of complaints against the defendants, with regard to the conduct of the defendants. The suit is bad in law as the Registrar of Chits had not been made a party to the suit, as he is a necessary party.
22. In view of the submissions made by the learned counsels appearing on behalf of the appellants, as well as the respondent and in view of the evidence available on record, it is seen that the appellants have not shown sufficient cause or reason for this Court to interfere with the judgment and decree of the Courts below. The appellants have not been in a position to show that the Courts below had erred in coming to their conclusions. The evidence adduced on behalf of the appellants before the Courts below were not sufficient to substantiate the claims made by the appellants that the four chits, in relation to which the suit had been filed by the respondent, were registered chits.
23. It had been noted that the documents marked as Exs.B-1 to B-8, were not relating to the documents marked on behalf of the respondent, as Exs.A-1 to A-4. Further, it had been noted that the appellants had not specifically denied, in their written statements, the claim of the respondent that the chits were unregistered chits. However, it is not in dispute that the respondent had paid the amount claimed by him for the four chits in question. The main contention raised on behalf of the appellants is that since, the chits in question are registered chits, the suit filed by the respondent is not maintainable before a Civil Court, in view of Section 64(3) of the Chit Funds Act 1982. In such circumstances, it cannot be said that the findings of the Courts below are erroneous and invalid. As such, the second appeal filed by the appellants is devoid of merits. Hence, it stands dismissed. No costs.
Index:Yes/No 07-07-2010 Internet:Yes/No csh To 1) The learned First Additional District Judge, Coimbatore. 2) The Subordinate Court, Pollachi. M.JAICHANDREN,J Csh S.A.No. 559 of 2008 07-07-2010