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2008 DIGILAW 457 (KER)

M. Udhaya Bhanu v. Vasantha Anirudhan

2008-07-31

PIUS C.KURIAKOSE

body2008
Judgment : In these petitions the writ petitioners seek review of my common judgments in the writ petitions. The writ petitions were filed for quashing Ext.P4 order in WP(C) No.24366 of 2004 and Ext.P5 order in WP (C) No.30952 of 2004 passed by the learned Subordinate Judge respectively in O.S.Nos.107/01 and 422/02. Both these orders were passed on preliminary issues raised in the suit regarding the maintainability of the suit and the propriety of valuation and sufficiency of court fees. The suits were filed primarily against the respondents herein who were legal representatives of one G. Aniruddhan, a Government Contractor. The case of the plaintiffs was that Sri. Aniruddhan was indebted to them and that upon the demise of Sri. Aniruddhan all his rights and liabilities devolved upon the respondents being his legal heirs and representatives. It is averred in both the suits that Sri. Aniruddhan was indebted to several other creditors also and therefore repayment could not be realized from the defendants immediately. The petitioners came to know that the respondents defendants were making demands to screen the assets which they had inherited from Sri. Aniruddhan from the reach of creditors. Demand for the amount due and for a ratable distribution of the assets which the defendants had inherited from Sri. Aniruddhan was made on the defendants but without success. Making such averments the suits were filed seeking substantially the following prayers. “An Administrator-cum-Receiver be appointed for determining the assets and liabilities of late G. Aniruddhan and for settling the amounts due to various creditors of Aniruddhan including the plaintiffs under a settlement of accounts, empower the receiver to assume possession of the assets immediately, direct him to sell such assets and to utilize the sale proceeds for payment of amounts due to the plaintiffs and the other creditors of late Aniruddhan.” 2. The suits had been valued under Section 39 read with section 16 of the Suits Valuation Act as administration suits falling within the ambit of Rule 13 of Order 20 C.P.C. However, in the suits, precise amounts had been claimed to be due to the plaintiffs from late Sri. Aniruddhan. The learned Subordinate Judge on considering the preliminary issues under the orders which were impugned in the writ petitions found that the suits were not maintainable since they had not been properly valued. Aniruddhan. The learned Subordinate Judge on considering the preliminary issues under the orders which were impugned in the writ petitions found that the suits were not maintainable since they had not been properly valued. According to the learned Sub Judge since precise amounts were claimed to be due to them from the estate of Sri. Aniruddhan it was obligatory that the suits be amended and court fee ad valorem be paid under Section 22 for the amounts claimed. The learned Subordinate Judge relied on the judgment of this court in Brothers Chitty Fund v. Jacob Mathew (2004 (1) KLT 64) for the view he had taken in the impugned orders and I under my common judgment presently sought to be reviewed referred to that judgment the judgment of another Division Bench of this Court in Vijayarajan v. Kalavathy, (2006 (2) KLT 470) and also the judgment of the Bombay High Court in Abdul Rahim v. Lingappa Vaijappa, AIR (30) 1943 Bombay 273 and held that the Subordinate Judge’s view had considerable support of the judgments of this court in Brothers Chitty Fund’s case and in Vijayarajan’s case. It was accordingly held that the plaintiffs are not entitled to institute an administration suit without any scope for enquiry as to what is the amount due to them from the estate of the deceased debtor Aniruddhan. Nevertheless, I also held that the view of the learned Subordinate Judge that an administration suit is not maintainable in law is wrong. I held that administration suits are contemplated in law and will be maintainable in law. But whether such suits should be decreed directing appointment of administrator or receiver is a matter to be decided on the basis of the legal evidence which comes on record in the suits. I therefore disposed of the writ petitions permitting the petitioners to file application for amendment of the suits in any manner they needed, so that they will be able to maintain the suit as administration suits not only in law but also on facts, so that they can aspire for the decree sought for in the present suit itself. I had directed and had observed that once amendment is made the question of propriety of valuation and sufficiency of court fees will be decided by the court with reference to the reliefs sought for in the plaint after the same is amended. 3. I had directed and had observed that once amendment is made the question of propriety of valuation and sufficiency of court fees will be decided by the court with reference to the reliefs sought for in the plaint after the same is amended. 3. Review of my judgment is sought for on various grounds raised in the R.P. memorandum and I have heard Sri. Abraham George Jacob, advocate on behalf of the counsel for the petitioner and Sri. P. Fazil, counsel for the respondents extensively on the various grounds. 4. I feel that there is justification for reviewing my judgment to a considerable extent. As already stated I had observed in my common judgment that the view taken by the learned Subordinate Judge had considerable support of the judgment of this Court in Brothers Chitty Fund v. Jacob Mathew (2004) (1) KLT 64 and in Vijayarajan v. Kalavathy (2006 (3) KLT 470. It is true that the Division Bench of this Court in Brothers Chitty Fund’s case did hold that a suit on account does not lie when the plaintiff avers in the suit that a definite crystallized sum is due to the plaintiff from the defendant. But it is seen that in Brothers Chitty Fund case their Lordships of the Division Bench were dealing with a case under Order 20 Rule 16. The Order 20 Rule 16 reads follows: “Decree in a suit for account between principal and agent: in a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not herein before provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.” Rule 16 of Order 20 as quoted above cannot take within the ambit suits which are envisaged under rule 13 of Order 20. One gets an idea as to the scope of administration suit under Rule 13 of Order 20 when the judgment of the Bombay High Court in N. Abdul Rahim v. Lingappan Vaijappa Angol and another, AIR (30) 1943 Bombay 273 is gone through. I had in paragraph 4 of my judgment sought to be reviewed quoted salient passages from the judgment of the Bombay High Court. I had in paragraph 4 of my judgment sought to be reviewed quoted salient passages from the judgment of the Bombay High Court. The enquiry which is envisaged in an administration suit coming within the purview of Rule 13 or Order 20 is essentially an enquiry as to the extent of the assets left behind by a deceased debtor and the sufficiency of those assets for discharging the debts owed by the debtors to his various creditors. The enquiry need not necessarily be into the exactness of the debt owed by the deceased debtor to a given creditor. In my judgment I have also observed that the view of the learned Subordinate Judge had considerable support of the judgment of this court in Vijayarajan v. Kalavathy, 2006 (3) KLT 470 also. While reading the editors head note to the said judgment published in the KLT it would appear as if the said judgment is an authority for the proposition that an administration suit cannot be maintained by a creditor who claims that a definite amount is due to him from the deceased debtor. But, on a more careful reading of the entire test of the judgment it will be seen that the ratio decidendi of that decision is only that an administration suit under Order 20 rule 13 is not maintainable for the administration of the assets belonging to a living debtor and for distribution of the sale proceeds amongst his creditors. The question whether an administration suit under Rule 13 of Order 20 is maintainable at the instance of a creditor who claims a precise amount from the estate of the deceased debtor was not considered at all by the Division Bench in Vijarajan’s case. The enquiry in an administration suit as already stated will be essentially regarding the sufficiency of the properties of the deceased debtor for payment of his debts and liabilities, the valuation of the annuities, the future and contingent liabilities of the debtor, the respective rights of secured and unsecured creditors of the debtor etc. 5. The enquiry in an administration suit as already stated will be essentially regarding the sufficiency of the properties of the deceased debtor for payment of his debts and liabilities, the valuation of the annuities, the future and contingent liabilities of the debtor, the respective rights of secured and unsecured creditors of the debtor etc. 5. In my judgment dated 20-8-2007 I had held that the view of the learned Subordinate Judge that suits under order 20 rule 13 are not maintainable at all is wrong and I had indicated that it may be possible for the petitioners to get the suit amended so as to make the same in conformity with rule 13 of Order 20. I had permitted the petitioners to file application for amendment of the suit and I had directed the court below to decide the question of propriety of the valuation and sufficiency of the court fees after the amendment is made. 6. Having considered the submissions addressed before me today and having gone through the plaints filed by the petitioners in the light of Order 20 rule 13 and the observations of the Bombay High Court in N. Abdul Rahim v. Lingappan Vaijappa Angol and another, AIR (30) 1943 Bombay 273 and of this court in Vijayarajan v. Kalavathy, 2006 (3) KLT 470 I am of the view that the suits filed by the petitioners can be maintained as they obtained now as administration suits under Order 20 Rule 13. Rule 13 in my opinion has been enacted on the consideration that a creditor who stands only a remote chance of realizing the amounts due to him from the creditor in full in view of the extent of the assets of the debtor actually available to be proceeded against with need not be mulcted with the obligation of paying full court fee for the amount due to him and payment of full court fee can be deferred till such time as the result of the enquiry to be conducted by the court regarding the extent of the assets of the debtor available for the benefit of the creditors is known. In the above view of the matter I hold that the suits filed by the petitioners are maintainable and the court below should go ahead with the enquiry envisaged under rule 13 of Order 20 and dispose of the suits in accordance with law. In the above view of the matter I hold that the suits filed by the petitioners are maintainable and the court below should go ahead with the enquiry envisaged under rule 13 of Order 20 and dispose of the suits in accordance with law. At the same time I find that the learned counsel for the respondent has raised a grievance which is genuine. Even though the suits stood for trial for years, nobody other than the plaintiffs have come forward staking claims against the estate of deceased Aniruddhan. Due to interim orders passed in the suit respondents are prohibited from dealing with the assets of Aniruddhan in any manner whatsoever. It was submitted by the counsel that if the amounts claimed by the petitioners are found to be legally and correctly due from the estate of Sri. Aniruddhan the respondents will be prepared to pay the amounts by disposing of a portion of the assets left behind by Sri. Aniruddhan. Noticing the above grievance of the review petitioners even as I allow the review petitions recalling the judgment dated 20-8-2007 and set aside the orders which were impugned in the writ petitions and direct the court below to go ahead with the trial of the suits. There will be a further direction to the court below to pass separate orders lifting the orders of attachment or injunction which are presently subsisting in respect of the immovable properties of deceased Aniruddhan on condition that respondents offer security to the satisfaction of the court below for the amounts claimed by the petitioners to be due to them from the decease Aniruddhan. I set a time frame of four months of receiving copy of this judgment for the respondents to furnish security. Writ petitions and review petitions are allowed as above.