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2001 DIGILAW 463 (MAD)

K. K. Varma v. Srichand Bajaj

2001-04-12

V.KANAGARAJ

body2001
Judgment :- The Judgment was delivered by : This Appeal Suit is directed against the judgment and decree dated 3-5-1980 rendered in O.S. No. 1183 of 1974 by the Court of first Assistant Judge, City Civil Court, Madras. 2. The appellant as the plaintiff has filed the suit in O.S. No. 1183 of 1974 in the Court of 1 Assistant Judge, City Civil Court, Madras for declaration that the defendant is not entitled to recover the amount of Rs. 11363.50 from the plaintiff in O.S. No. 4396 of 1973 on the file of the 7th Assistant Judge, City Civil Court, Madras and for directing him to return the said amount and for costs. 3. The plaintiff would submit in his plaint that the defendant filed O.S. No. 4396 of 1973 for recovery of a sum of Rs. 10, 000/- together with interest at 21% p.a. against M/s. India Metres Limited represented by its Managing Director V. Sankar; that the defendant impleaded the plaintiff also as the fourth defendant along with two others namely K. Balarama Rao and P. Brahmayya, who are the Directors of the said company as guarantors and sought to recover the amount against them also; that the defendant also filed an I.A. No. 15728 of 1973 for an order of attachment before judgment of the movable kept in the house of the plaintiff and on an order passed by the Court below on 20-8-1973, the plaintiff's movables were distrained; that the plaintiff was taken unawares and paid a sum of Rs. 11, 363.50 for not attaching the movables; that he was forced to pay the said amount and had no other alternative and he never owed any liability to the defendant much less to pay any amount; that falsely alleging that the plaintiff along with other directors approached him for financial assistance and that they executed a letter of guarantee on 12-1-1971 for securing the monies from the defendant upto a sum of Rs. 5, 00, 000/- and on such allegations the defendant filed the suit in O.S. No. 4396 of 1973 for the recovery of a sum of Rs. 10, 000/- borrowed by the said India Meters Ltd. and that on two hundies dated 7-3-1973 guaranteed by the plaintiff and three others the said amount was due to him. 4. 5, 00, 000/- and on such allegations the defendant filed the suit in O.S. No. 4396 of 1973 for the recovery of a sum of Rs. 10, 000/- borrowed by the said India Meters Ltd. and that on two hundies dated 7-3-1973 guaranteed by the plaintiff and three others the said amount was due to him. 4. The plaintiff would further submit that the allegations of the plaint in the said suit are false and fraudulent; that he did not at all at any time either approach the defendant or sought for financial assistance much less to get loans; that the plaintiff executed only a letter of guarantee to a particular loan advanced to the M/s. India Meters Limited through M/s. Bhojraj and Sons; that the said obligations came to an end then and there when the liability was discharged by the company; that the defendant making use of the letter dated 21-1-1971 in a fraudulent manner with criminal intention to obtain wrongful gain filed the suit; that the plaintiff is not aware of the loan borrowed by the India Meters Limited from the defendant nor did he stand as a guarantor to the defendant and the letter of guarantee filed by the defendant in the suit is not one which the plaintiff gave to the defendant herein. 5. The further case of the plaintiff is that in the application for obtaining the order of attachment on the movables of the plaintiff, after realising the amount, the defendant reported to the Court that the suit was settled out of Court and withdrew the suit before the plaintiff could file his objections to the application for attachment before judgment and prior to the filing of the written statement in the said suit. Therefore, the plaintiff could not agitate the matter in the said suit at all; and that all the allegations raised in that suit and the attachment petition filed before the said Court were false. On such averments, the plaintiff would pray for the relief extracted supra. 6. Therefore, the plaintiff could not agitate the matter in the said suit at all; and that all the allegations raised in that suit and the attachment petition filed before the said Court were false. On such averments, the plaintiff would pray for the relief extracted supra. 6. In the written statement filed, the defendant besides denying generally the allegations of the plaint would assert that the plaintiff was also liable to pay the amount claimed by the defendant in O.S. No. 4396 of 1973 as per the guarantee executed by him further reiterating the allegations made by him in the said suit; that the plaintiff's liability is co-existent and the plaintiff was also jointly and severally responsible for the repayment; that the said amount was received only through legal proceedings and not by threat or coercion as it is falsely averred in the plaint; and that the plaintiff was bound to pay the said amount. On such allegations, the defendant would pray to dismiss the suit as devoid of merits with exemplary costs. 7. Based on these pleadings by parties, the trial Court has framed three issues, viz.: 1. Whether the defendant was not entitled to recover Rs. 11, 363.50 ps. from the plaintiff herein as 4th defendant in O.S. 4396 of 1973 on the file of the VII Assistant Judge, City Civil Court, Madras? 2. Whether the defendant is bound to return the money as claimed in the suit? and 3. To what relief? Then, the trial Court has ordered the trial, in which the plaintiff besides examining himself as P.W. 1 would exhibit two documents as Exs. A.1 and A. 2, Ex. A. 1 being the served copy of the plaint in O.S. No. 4396 of 1973 and Ex. A.2 being the served copy of petition and affidavit in I.A. No. 5728 of 1973 in O.S. No. 4396 of 1973 on the file of the VII Assistant Judge, City Civil Court, Madras. On the part of the defendant, the defendant besides examining himself as D.W. 1 would also examine one Hiralal B. Jathwary as D.W. 2 for oral evidence and would mark 15 documents as Exs. B.1 to B.15. Ex B.1 being the warrant of attachment of movables in I.A. No. 15728 of 1973 in O.S. No. 4396 of 1973, Ex. B.2 is the endorsement on Ex. B.1 by the plaintiff, Exs. B.1 to B.15. Ex B.1 being the warrant of attachment of movables in I.A. No. 15728 of 1973 in O.S. No. 4396 of 1973, Ex. B.2 is the endorsement on Ex. B.1 by the plaintiff, Exs. B.3 to B.5 are the attested copies of the defendant's ledger book, Ex. B.6 is the vakalath filed by the plaintiff as 4th defendant in O.S. No. 4396 of 1973, Ex. B.7 is the petition in I.A. no. 16278 of 1973 in I.A. No. 15738 of 1973 in O.S. No. 4396 of 1973. Ex. B.8 is the petition in I.A. No. 16277 of 1973 in I.A. No. 15728 of 1973 in O.S. No. 4396 of 1973, Ex. B.9 dated 27-9-1973 is the judgment in O.S. No. 4396 of 1973, Exs. B.10 and B.11 dated 5-6-1973 are the hundies for Rs. 5, 000/- each, Ex. B.12 dated 12-1-1971 is the letter of guarantee executed in favour of M/s. Bhojraj and Brothers. Exs. B.13 and B.14 are the copies of telegrams given by defendant to the plaintiff and Ex. B.15 dated 4-6-1973 is the letter addressed by the plaintiff to M/s. B.M. and Sons. 8. In consideration of these evidence placed on record, the lower Court, having its own discussions and appreciating the evidence in its own way had ultimately arrived at the conclusion that the defendant was entitled to recover Rs. 11, 363.50 ps. in O.S. No. 4396 of 1973 and that the defendant is not bound to return the money as claimed in this suit and would dismiss the suit with costs. 9. At the outset it is relevant to mention that the lower Court even without understanding the subject properly and without framing proper issues has gone away from the scope of the suit as a result of which proper conclusions were not arrived at much less in the manner it has to be arrived at. The issue is not whether the defendant was entitled to recover Rs. 11, 373.50 ps. from the 4th defendant in O.S. No. 4396 of 1973 and whether the defendant is bound to return the money as claimed in the suit as the issues framed by the lower Court for determination of the questions involved in the suit. It could be straight answered that it all depends in the trial to be held in the suit in O.S. No. 4396 of 1973. It could be straight answered that it all depends in the trial to be held in the suit in O.S. No. 4396 of 1973. Therefore, the lower Court cannot settle the scores which the jurisdiction Court in O.S. No. 4396 of 1973 failed to do wherein there was no trial held at all. Therefore, the issues could be straightway answered that the defendant was not entitled to recover the said amount without a decree passed to the said effect and hence the second issue could be answered as a result of the answer to the first issue that the plaintiff is entitled to recover the said amount from the defendant. 10. The plaintiff's case is that in pursuance of an order of attachment before judgment of the movables of the plaintiff made in I.A. No. 15728 of 1973 in O.S. No. 4396 of 1973, the plaintiff had deposited the said amount for avoiding the movables from being attached and taken possession of by the Court and immediately after the said payment effected, the defendant herein who was the plaintiff in the said suit had come forward to withdraw the suit under pretext of a compromise having been arrived at between parties outside Court said to have been orally reported by the counsel for both and the learned VII Assistant Judge, City Civil Court, Madras has dismissed the suit in O.S. No. 4396 of 1973 as settled out of Court without any written memo Or parties appearing in person and giving consent for the compromise. Passing a slipshod order as though the said Court was recording compromise in O.S. No. 4396 of 1973, the said Court had further allowed the defendant herein as the plaintiff therein to withdraw the money deposited or allowing the plaintiff therein to appropriate the amount paid by the defendant therein, the plaintiff herein only as a security pending disposal of the suit. 11. The plaintiff's case is that the trial in the said suit in O.S. No. 4396 of 1973 was not at all held, which would have only answered whether the defendant herein was entitled to recover the said sum that too from the 4th defendant therein. 11. The plaintiff's case is that the trial in the said suit in O.S. No. 4396 of 1973 was not at all held, which would have only answered whether the defendant herein was entitled to recover the said sum that too from the 4th defendant therein. The plaintiff herein as the 4th defendant therein had his own reasons to offer, defence to set up and materials to putforth to fight out the said case in all fairness had it not been withdrawn under pretext and guise that the matter was settled out of Court. Even in the event of such compromise, the suit was only allowed to be withdrawn and no decree was passed against the plaintiff herein so as to hold that the said Court, (the VII Assistant Judge, City Civil Court, Madras) in pursuance of the decree made, allowed the plaintiff therein. But, a case for recovery of the said sum had been withdrawn means, the suit filed by the plaintiff therein had no consequence at all and it should be construed that parties were put back to the position which was prevailing prior to institution of the suit and nothing else. But, here, the amount was deposited by the plaintiff herein the said suit as a security to the amounts claimed and it should lie as a deposit pending disposal of the suit and after the disposal of the suit, it would be decided whether the depositor should take back the money or in such event the decree is passed in favour of the plaintiff therein, the money is to be paid in favour of the decree-holder, only in execution of the decree on an Execution Proceeding initiated by the decree-holder. 12. Here is a case in which the said Court, the VII Assistant Judge, City Civil Court, Madras before whom the said suit in O.S. No. 4396 of 1973 had been filed, on entertaining the Interlocutory Application for the attachment of the movables would immediately pass an order in an ex parte manner which he was not supposed to do since no such blunt orders could be passed regarding attachment of properties especially when they are movables without any opportunity being afforded for the defendant to furnish security as it is required under law. The said Court had no business to straight-way attach the movables since such attachment would only mean flagrant misuse of the discretion conferred on it by law. The said Court should have known that even though the discretionary powers are conferred on Courts, it is only judicial discretion that is known to law and the Courts are expected to make use of their discretion in such manner when it is required under circumstances and when the circumstances strongly favour to make use of such discretion in a particular manner but the Court refrains from doing so and when the circumstances are such that the discretionary power should not have been exercised in a particular direction but the Court exercises the same, it is not discretion but arbitrary exercise of the lawful powers conferred on the Courts. 13. In the case in hand, the VII Assistant Judge, City Civil Court, Madras has not only passed an ex parte interim order of attachment of the movables, which should not have been done in such haste without the other party being heard on the application with due opportunity, but also in a quite unwarranted manner it would allow the plaintiff to appropriate the money deposited as security in a withdrawn suit which would only show that the said Court was not fair in its exercise of judicial power but it had acted only on extraneous considerations by sheer misuse of the powers conferred on it by law. 14. Secondly, even without having the rudimentary knowledge that without any memo of compromise being filed nor summoning the parties to appear before it to ascertain whether there had been a compromise entered into by both parties, just on a remark made by the counsel that the matter was settled, he had freely allowed the suit to be withdrawn besides arbitrarily and in an illegal manner allowing the plaintiff therein to appropriate the amount deposited by the 4th defendant which was the suit claim which was not only illegal but atrocious on the part of the said Court that too having enacted all these behind the back of the 4th defendant who issued the cheques under threat of his movables being removed with the help of the order of attachment passed by the said Court at the time of filing of the suit itself. Unless the suit is contested and decree passed on ultimate decision arrived at in the trial held in the suit and in execution of the decree only the money deposited could be allowed to be appropriated by the decree-holder by the execution Court. But, here, arbitrarily in a suit withdrawn abruptly, the plaintiff had been allowed to appropriate the deposited amount which is not only irregular but illegal as well. Without a trial being held in the suit, where does the question of granting the relief prayed for in the suit arise is yet to be answered by the said Court. This is the second serious irregularity committed on the part of the VII Assistant Judge, City Civil Court, Madras in the suit in O.S. No. 4396 of 1973. While such is the sorrowful state of affairs, the plaintiff has legally come forward to pray for a declaration that the defendant is not entitled to recover the said amount as ordered by the VII Assistant Judge, City Civil Court, Madras in O.S. No. 4396 of 1973 in which cook and bull stories are being told as pleadings by the defendant. 15. The lower Court in this suit also without understanding the subject matter and the relief sought for, has framed the issue to the effect whether the defendant is entitled to recover the said amount from the plaintiff and whether the defendant is bound to return the money as claimed in the suit and has arrived at the conclusion that the plaintiff was entitled to recover the said amount in O.S. No. 4396 of 1973 on the file of the VII Assistant Judge, City Civil Court, Madras and that the defendant is not bound to return the money as claimed in the suit as though the lower Court is delivering its judgment on completion of trial in O.S. No. 4396 of 1973 with which it has absolutely nothing to do. 16. In these circumstances, the only issue relevant for consideration and determination is whether the defendant as the plaintiff in O.S. Nos. 4396 of 1973 was entitled to appropriate the amount of Rs. 11, 363.50 ps. 16. In these circumstances, the only issue relevant for consideration and determination is whether the defendant as the plaintiff in O.S. Nos. 4396 of 1973 was entitled to appropriate the amount of Rs. 11, 363.50 ps. deposited by the 4th defendant therein as a security for his movables from being attached in a suit withdrawn by himself under pretext of a compromise arrived at outside the Court by such oral statement and under such circumstances whether the money thus deposited as a security before judgment could be allowed to be withdrawn by the plaintiff therein without the trial being held in the suit when the defendant concerned was hotly contesting the suit? The straight answer that could be given for this issue is that the defendant in this suit was not entitled to realise or appropriate the said amount in the manner that it had been done and the lower Court in allowing him to withdraw the said amount as though it is the execution Court sitting on the decree obtained by the defendant or as though the 4th defendant to the suit had given it in writing, thus allowing the plaintiff therein to withdraw the amount. 17. Here is suit which was just filed along with an I.A. to attach the movables before judgment and the said order was freely passed and in order to avoid the movables from being attached the 4th defendant in the suit would deposit the suit claim in the Court as a security and immediately under pretext that the plaintiff is withdrawing the suit on certain compromise said to have been arrived at outside the Court, he would be allowed to withdraw the suit and was also permitted to withdraw the amount deposited by the 4th defendant. It is nothing but making the judicial process a thing of mockery. It is nothing but making the judicial process a thing of mockery. The lower Court without analysing the legality of the VII Assistant Judge, City Civil Court, Madras in permitting the plaintiff to withdraw the suit and permitting to withdraw the amount deposited by the fourth defendant without his knowledge or without even a finality of decision taken in the suit, has started discussing the suit filed by the defendant in the other Court in O.S. No. 4396 of 1973 and as though sitting on the said judgment has justified the irregular and illegal orders passed by the VII Assistant Judge, City Civil Court, Madras thus almost passing a decree in O.S. No. 4396 of 1973 in which there was no trial held at all thus ratifying the most erroneous act and an illegal order passed by the said Court in the said suit thus causing great damage to the judicial process. Throughout, the Court of VII Assistant City Civil Judge has acted in the most irresponsible manner resulting in failure of justice in the said suit. It is nothing short of an act of encouraging the litigants to collect any money with the threat of an attachment before judgment of movables thus allowing litigants to take the judicial process so lightly or to their advantage. 18. The conclusions arrived at by the lower Court in justifying the acts of the VII Assistant Judge, City Civil Court, Madras in the manner that it had acted in allowing the plaintiff therein to withdraw the amount deposited by the 4th defendant in O.S. No. 4396 of 1973 are the most erroneous and wrong, needless to mention that the appreciation is perverse and at no stretch of imagination a decree could be passed by the lower Court in the manner that it has dismissed the suit filed by the appellant herein. There is absolutely no justification on the part of the defendant herein in withdrawing the money unreasonably and as a result of erroneous orders passed by the Court concerned in a suit that was not at all in existence but allowed to be withdrawn. In result, the above appeal suit succeeds and the same is allowed with costs throughout. The judgment and decree dated 3-5-1980 rendered in O.S. No. 1183 of 1974 by the I Assistant Judge, City Civil Court, Madras is hereby set aside. In result, the above appeal suit succeeds and the same is allowed with costs throughout. The judgment and decree dated 3-5-1980 rendered in O.S. No. 1183 of 1974 by the I Assistant Judge, City Civil Court, Madras is hereby set aside. The suit in O.S. No. 1183 of 1974 on the file of the I Assistant Judge, City Civil Court, Madras is hereby decreed for a sum of Rs.11, 363.50 ps. with interest at 12% p.a. from the date of suit till the date of realisation with exemplary costs of Rs. 2, 000/-. Appeal allowed.