Beyatrees Antony & Ors. v. A.K.Mani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:02.02.2011Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.727 of 20091.Beyatrees Antony2.Sonia... Appellants/Respondents 2 & 3 (Defendants 4 & 5) vs.

A.K.Mani2.Prasad Colour Laboratory,3.Mrs.T.C.Rosy4.Santhosh5.M/s.Ruby... Respondents/Appellant & Respondents 1, 4 to 6 (Plaintiff and Defendants 3, 6 to 8)This second appeal is filed against the judgement and decreedated 18.2.2009 in AS.199/08, passed by the VI Additional Judge, City Civil Court, Chennai, reversing the judgement and decree dated14.8.2007 passed by the XI Asst Judge, City Civil Court, Chennai(in-charge) of XVII Asst City Civil Court, Chennai in O.S.No.459 of2002.For Appellants : M/s.Ashok Menon For Respondents : M/s.Auxillapeter for R1 R2 to R5 - given upJUDGMENTThis second appeal is filed by the LRs of D2, inveighing thejudgement and decree dated 18.2.2009 passed by the VI AdditionalJudge, City Civil Court, Chennai, reversing the judgement anddecree dated 14.8.2007 passed by the XVII Asst. City Civil Court, Chennai (in-charge) in O.S.No.459 of 2002, which was filed forrecovery of money and for permanent injunction.

The parties, for the sake of convenience, are referred tohere under according to their litigative status and ranking beforethe trial Court. https://hcservices.ecourts.gov.in/hcservices/

The factual matrix, as stood exposited from the records, would run thus: (a) The first respondent herein, as plaintiff, filed the suitseeking the following reliefs: "i) to pass a judgement and decree directing thedefendants 1 and 2 to pay the plaintiff jointly andseverally the sum of Rs.1,20,117/- together withsubsequent interest @ 24% per annum on Rs.75,000/-.ii) permanent injunction, restraining thedefendants, from distributing, exhibiting or anyoneclaiming under them from in any way releasing or causingthe release of the Malayalam dubbed picture titledPAATHIKALAI THEDI (dubbed version from the originalKANNADA picture PAVITHRAPAPI) either in Kerala State oranywhere else, without settling the plaintiff's claim asmentioned in clause (i) supra; (iii) directing the defendants 1 and 2 to pay thecost of this suit. "(extracted as such)(b) The defendants resisted the suit by filing writtenstatement. (c) Whereupon the trial Court framed the issues. Theplaintiff examined himself as P.W.1 and marked Exs.A1 to A5. Onthe defendants' side, no one was examined and no document wasfiled. Exs.C1 to C3 were marked as Court documents. (d)Ultimately the trial Court decreed partly the suit as against theLRs of D1, as D1 died pendente lite, and the suit as against D2 wasdismissed in toto. (d) Being aggrieved by and dissatisfied with the judgement anddecree of the trial Court, the appeal was filed by the plaintiff. Whereupon, after hearing both sides, the first appellate Courtmodified the judgement and decree of the trial Court and decreedthe original suit in toto as prayed for, directing the LRs of D1and D2 to pay jointly and severally, the sum of Rs.1,20,117/-together with interest @ 24% on Rs.75,000/- from the date of plainti.e. 11.7.1986 till the date of realisation and further directingthe property offered by the third party Ramesh to continue till thedischarge of the decree debt. (e) Now the LRs of D2 filed this second appeal challenging andimpugning the judgement and decree of the first appellate Court asagainst them only on the main ground that when there was no privityof contract between D2 and the plaintiff, the first appellate Courtwas not justified in reversing the reasoned finding of the trialCourt in exonerating D2 from the suit liability. https://hcservices.ecourts.gov.in/hcservices/

The following substantial questions of law are foundsuggested in the memorandum of grounds of second appeal: "i) Whether the learned lower appellate Court Judgedid not err in overlooking that the burden of provingthat Kaduvakkulam Antony had borrowed monies from theplaintiff along with Anthikad Mani was squarely that ofthe 1st respondent/plaintiff.ii)Whether the learned lower appellate Court Judgedid not err in overlooking Sections 101, 102, 103 and 104of the Indian Evidence Act?iii) Whether the learned lower appellate Court Judgeerred in allowed the appeal merely because no oralevidence had been let in on the side of the appellantherein even though no evidence, either oral ordocumentary, had been let in by the 1strespondent/plaintiff to prove that late KaduvakkulamAntony had jointly borrowed monies from him along with Anthikad Mani?iv) Whether the learned lower appellate Court Judgeerred in overlooking that not a single document had beenfiled by the 1st respondent/plaintiff herein indicatingthat Kaduvakkulam Antony had borrowed monies from him andalso that in all the documents filed by the 1strespondent/plaintiff before the lower Court only the nameof late Anthikad Mani had figured and the name of lateKaduvakkulam Antony did not appear.v) Whether the learned lower appellate Court Judgeerred in not holding that the appellants herein wereliable to pay only to the extent of the portion of theestate of deceased Kaduvakkulam Antony that had come intotheir hands and nothing more than that. "

On hearing both sides, I am of the view that the followingsubstantial question of law would arise for consideration: "Whether the first appellate Court for the reasonsset out in the judgement was justified in reversing thefinding of the trial Court in exonerating the D2 fromhis liability to pay the suit amount in favour of theplaintiff and that too ignoring the finding of the trialCourt that there was no privity of contract between theplaintiff and D2?6. Heard both sides further on the above substantial questionof law.

The learned counsel for the appellants/LRs of D2 wouldsubmit that in the absence of an express contract between theplaintiff and D2 relating to payment of amount, the appellate Courtwas not justified in mulcting the LRs of D2 with the liability to https://hcservices.ecourts.gov.in/hcservices/ pay the suit amount and also damages.

Whereas, the learned counsel for the firstrespondent/plaintiff would submit that the over all circumstanceswere taken into consideration by the first appellate Court andthereupon disagreed with the trial Court's judgement in exoneratingD2 from the liability, warranting no interference in second appealby this Court.

At this juncture, I recollect and call up the followingmaxim:'Ubi jus, ibi remedium' – Where there is a right, there is aremedy.

The above maxim clearly exemplifies and demonstrates thatif at all there is any right on the part of the plaintiff asagainst a particular defendant to enforce a right, then the Courthas to enforce it.

Here, axiomatically and obviously, a mere perusal ofEx.A1-the agreement dated 26.5.1985 would project and portray thatabsolutely there was no undertaking on the part of D2 to pay thesuit amount or pay any money in favour of the plaintiff. Ex.A1emerged only between the plaintiff and D1. In such a case, thetrial Court in its judgement adverted to the above said fact andexonerated the D2 from the liability of paying the suit amount.

On the other hand, the appellate Court, after narrating inextenso the case of both sides and also the grounds of appeal, simply, without any plausible reason disagreed with the findings ofthe trial Court in exonerating D2. The first appellate Court spentseveral pages narrating as to what transpired during the pendencyof the suit, but those discussions are relevant for holding thatthe surety furnished by Ramesh shall subsist till the discharge ofD1 and his L.Rs liability to pay the decreetal dues.

I am at a loss to understand as to how the first appellateCourt mulcted D2's LRs to pay the suit amount when there was noprivity of contract between the plaintiff and D2 relating topayment of money. Hence, the judgement of the first appellateCourt in fastening D2's LRs with liability to pay the suit amountwith damages, is fraught with perversity and illegality, warrantinginterference in second appeal and accordingly, that much portion ofthe judgement and decree of the first appellate Court is set aside. Accordingly, the aforesaid substantial question of law is answered.

I make it clear that the rest of the judgement and decreeof the first appellate Court shall hold good, as no one advancedany arguement as against the other findings of the first appellateCourt. https://hcservices.ecourts.gov.in/hcservices/

During the pendency of this second appeal, my learnedpredecessor passed the order in M.P.Nos.1 and 2 of 2009 dated21.8.2009, the operative portion of which would run thus:'12. Admittedly, the said Ramesh was not a defendantor a judgment-debtor. On account of safeguarding theinterest of the firm, in which he was a partner, the thirdparty furnished the security of his immovable propertiesand therefore, his liability would not be more than thedecree amount with subsequent interest and costs. It isnot in dispute that the first respondent/decree-holder istaking steps to bring the property belongs to the thirdparty for sale, in order to realise the decree amount. Hence, in the interest of justice, I am of view to acceptthe plea in favour of the said third party, since he isready and willing to deposit the entire decree amount withinterest and costs in trial court, for which, there couldbe no legal grievance for the first respondent/decree-holder in accepting the same. The amount so deposited beinvested in a Nationalised Bank, so as to fetch interestand the same may be withdrawn by the party, as per thejudgement in the second appeal.13. In the result, M.P.No.2 of 2009 is ordered forreturn of documents that were entrusted by Sri.V.K.Ramesh, third party to the suit as security for the decree amounton his depositing the entire decree amount with interestand costs on or before 4.9.2009. The firstrespondent/decree holder is entitled to withdraw only theamount relating to the costs. The balance amount shall beinvested in the Indian Bank, High Court Branch, Chennaifor one year. The deposited amount along with the accruedinterest shall be disbursed on the disposal of the secondappeal.14. On compliance of the conditional order, both themiscellaneous petitions will be allowed and the interimstay already granted will be made absolute. In case, ifthe conditional order is not complied with, the petitionsshall stand dismissed with costs and the firstrespondent/decree-holder will be at liberty to proceedwith the E.P. The petitions are ordered accordingly. "

Accordingly, the said Ramesh, after depositing thedecree amount with interest and costs, by way of securing therecovery of the decreetal amount, took back the documents.

The learned counsel for the appellants/LRs of D2 wouldraise a doubt as to whether Ramesh could take away the amount, deposited by way of security as per the order of this Court dated21.8.2009. Whereas, the learned counsel for the firstrespondent/plaintiff would appropriately point out that the very https://hcservices.ecourts.gov.in/hcservices/ purpose of having ordered the said Ramesh to deposit the saidamount as security is to see that the plaintiff could recover thatamount towards satisfaction of the decree passed.

The learned counsel for the appellants also on behalf ofV.K.Ramesh argued the matter and obtained earlier interim orderfrom this Court, on 21.8.2009. According to the learned counselfor the appellants, the D1 and his legal heirs had no right overthe said film 'PAATHIKALAI THEDI' and in such a case for theliability of D1 and his legal heirs, the said film could not havebeen attached and simply because 3rd party-Ramesh furnishedsecurity for getting the film released, he cannot be mulcted withthe liability to discharge the decree debt.

Undoubtedly, the trial Court fell into error in holding asthough there was no evidence to show that D1 had any right over thesaid film and hence, the said Ramesh cannot be held liable istotally against law.

In the facts and circumstances of this case, the Court isnot expected to find out as to whether D1 had any right over thefilm or not. Voluntarily the said Ramesh furnished security forthe purpose of getting the film released, which was earlierattached by this Court. In such a case, the duty of that surety isto honour his responsibility and liability. Had the said Rameshfiled any application at the earliest point of time for vacatingthe attachment or raising the attachment or varying the order ofattachment on the ground that D1 who entered into such agreementwith the plaintiff had no right at all over the movie, then thematter would have been decided in one way or other, as againstwhich, the right of appeal also would have been available for theaggrieved party and in the meantime, the plaintiff also would haveplanned for attaching some other property.

The plaintiff admittedly got attachment order and only onthe furnishing of the security by the said Ramesh, the film alsowas released. At that point of time there was no bifurcation ofthe liability of D1, D2 etc. Hence, it is too late in the day onthe part of Ramesh or D2 to argue that since D2 was exonerated fromthe suit, security furnished by Ramesh also should be releasedonce and for all.

There is nothing to indicate that such security wasfurnished only on behalf of D2, so as to exonerate D2 from theliability to furnish security and if that be so, an arguement wouldbe maintainable to the effect that since D2 was exonerated from hisliability, Ramesh also should be exonerated from his liability. But the security was furnished by Ramesh for the suit claim andbased on that alone, the attachment concerning that film wasreleased. As such, in this view of the matter, it is clear that at https://hcservices.ecourts.gov.in/hcservices/ this distant point of time neither D2 nor Ramesh could be heard tocontend that the security furnished by Ramesh for the suit amountcannot be made use of by the plaintiff in the process of recoveringthe decreetal dues of D1 and his legal heirs.

The first appellate Court was right in its finding to theextent that the liability of V.K.Ramesh as a person who furnishedthe security for the suit claim shall remain in force.

I would like to uphold the submission of the learnedcounsel for the first respondent/plaintiff and order that for thepurpose of recovering the decree debt, as confirmed by the firstappellate Court as against D1, the amount deposited in the Court by Ramesh, as per the order of this Court dated 21.8.2009 inC.M.P.Nos.1 and 2 of 2009, could be proceeded against, by theplaintiff.