K.Saravanakumar v. Dhinamalar,Daily Newspaper

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:9.4.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.234 of 2007andM.P.No.1 of 20071.K.Saravanakumar2.N.Mahalakshmi3.S.Krishnan... Appellants/Appellants/Defendantsvs.Dhinamalar,Daily Newspaper,rep.by its Partner R.Sathyamoorthyrep.by its recognised agent/power ofattorney R.RamasubramaniyamSalem – 15... Respondent/Respondent/PlaintiffThis second appeal is filed against the judgement and decreedated 21.10.2005 passed in A.S.No.103 of 2005 by the PrincipalSubordinate Judge, Salem, confirming the judgement and decree dated24.2.2005 passed by the Principal District Munsif, Salem, in 389 of2001.For Appellants : No appearanceFor Respondents : No appearanceJUDGMENTThis second appeal is focussed by the defendants, animadvertingupon the judgement and decree dated dated 21.10.2005 passed inA.S.No.103 of 2005 by the Principal Subordinate Judge, Salem,confirming the judgement and decree dated 24.2.2005 passed by thePrincipal District Munsif, Salem, in 389 of 2001, which was filed forrecovery of a sum of Rs.26,494/-. For the sake of convenience, theparties are referred to hereunder according to their letigativestatus before the trial Court. 2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of this secondappeal, would run thus: https://hcservices.ecourts.gov.in/hcservices/ The respondent/plaintiff, filed the suit O.S.No.389 of 2001 asagainst the defendants for recovery of a sum of Rs.26,494/- withsubsequent interest and cost. The defendants entered appearance andfiled 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 gotmarked marked. On the defendants' side the first defendant examinedhimself as D.W.1 and no document was marked. 4. Ultimately, the trial Court partly decreed the suit, asagainst which, the defendants preferred the appeal A.S.No.103 of2005, which was dismissed by the first appellate Court, confirmingthe the judgement and decree of the trial Court.5. Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, the defendants filed this secondappeal on various grounds and also suggesting the followingsubstantial questions of law. "a Whether the judgement rendered by the lowerappellate is in conformity with the order 41 rule 31 of CPCand the dictum laid down in 1997(1) CTC 26 and 2002(5) CTC740 and 2004(2) MLJ 283?b. Is there any documentary evidence being producedbefore the courts below to establish the concluded contractbetween the parties to show the jural relationship ofprincipal and agent between the parties to the suit.?c. Whether the courts below justified in foisting theliability on the appellants on the strength of anapplication for agency in the absence of any documentaryevidence for acceptance of such an offer?d. Is not the duty of the principal to hand over thealleged dishonoured cheques to the agent to initiatefurther course of action to recover the amount from theadvertisers to safeguard the interest of the agent torecover the amount?(extracted as such)6. A deep analysis of and poring over of the typed set ofpapers, including the judgements of both the Courts below woulddisplay and demonstrate that the plaintiff filed the suit forrecovery of dues payable by D1 (the plaintiff's advertising agent) aswell as D2 and D3-the guarantors, on the ground that as per theaccounts maintained by the plaintiff, D1 committed default in payingthe dues. 7. Remonstrating and refuting, impugning and gainsaying thestand of the plaintiff, the defendants would contend that D1 was only https://hcservices.ecourts.gov.in/hcservices/ an advertising canvasser and not agent of the plaintiff and that henever undertook to pay the dues of the advertisers, who got theiradvertisements published in the Dinamalar Daily Newspaper. The jobof D1 was to collect advertisements from advertisers and help theplaintiff to publish the advertisements and if at all there are anydues payable by the advertisers, the same have to be recovered by theplaintiff from them directly and not from D1. 8. Both the Courts below adverting to the documents markedduring trial gave a finding that D1 was the plaintiff's agent, whocategorically undertook, as per Ex.A1, to perform the duty ofcollecting the dues from the advertisers concerned, and remit thesame to the plaintiff. The first appellate Court in paragraph 16extracted the relevant portion of Ex.A1 and discussed and decidedthat D1 was the agent of the plaintiff and he was responsible for thepayment also. Ex.A4 comprised of advertisement bills given byDinamalar Daily Newspaper with the statement of accounts, over whichthere is no controversy. 9. The contention of the defendants was that the plaintiffinstead of collecting the dues from the defaulters, had chosen tofocus its attention as against the defendants. The records wouldbespeak and demonstrate that the plaintiff agreed to pay 15%commission to D1 for the service undertaken to be performed by himand D2 and D3, as per Ex.A2, stood as guarantors for the dueperformance of the duties by D1. Both the Courts below also, whileordering payment to be made by the defendants in favour of theplaintiff, deducted the commission, to which D1 is entitled. Assuch, for commission, D1 agreed to collect the money from the personsconcerned, 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 withfacts correctly and that too keeping the sense of perspectivity aboutwhat were placed as evidence during trial decided in favour of theplaintiff and as against the defendants. However, in the grounds ofsecond appeal the defendants would try to project as though both theCourts below have not decided based on the documents, the actualrelationship between the plaintiff and the defendants. Whereas, thefirst appellate Court, by extracting certain excerpts from Exs.A1 andA2, clearly held that D1 was the agent of the plaintiff and D2 and D3stood as guarantors for the due performance of the duties by D1.Hence, the contentions, as put forth in the second appeal, aretotally untenable. 11. The proposed substantial question of law (a) is based onOrder 41 Rule 31 of C.P.C, which contemplates as to what are allshould be in the judgement of the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/

12. Here the bare perusal of the first appellate Court'sjudgement would clearly evince that the first appellate Judge pointwise discussed and that too by extracting the relevant portions ofthe documents and arrived at the conclusion. As such, I could see noviolation of Order 41 Rule 31 of C.P.C.13. The suggested substantial questions of law (b and (c) are byway of raising the defendant's accusative finger as against both theCourts below for having allegedly rendered the judgement, withoutevidence and without applying law.14. My discussion supra would indicate that the Courts below,after analysing the evidence both oral and documentary, arrived atthe conclusion, which warrants no interference by this Court.15. As far as the suggested substantial question of law (d) isconcerned, it is on the alleged fact that the plaintiff did notreturn back the cheques. The very contention of the defendants wouldgo against such substantial question of law, because it is the caseof the defendants that it was for the plaintiff to recover the amountand not for the defendants and as such, they never pleaded for returnof those four cheques and they never got any issue framed in thataspect. 16. In the result, the judgements and decrees of both the Courtsbelow are confirmed and the second appeal is dismissed. No costs.Consequently, connected miscellaneous petition is dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarMskTo1. The Principal Subordinate Judge, Salem2. The Principal District Munsif, Salem S.A.No.234 of 2007kji(co)SRA (15/05/2009)