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2014 DIGILAW 643 (GAU)

K. Lalringa v. P. C. Rinzuala

2014-06-19

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment and decree dated 23.1.2013 passed by the learned Senior Civil Judge, Lunglei District, Lunglei in Money Suit No. 5/2011, by which, the suit that was filed by the respondent herein as the plaintiff has been decreed requiring the defendant No. 1/appellant to pay Rs. 22,30,159/- to the plaintiff/respondent without interest within a period of 4 (four) months. The suit was filed claiming the amount of Rs. 22,30,159/- from the defendant/appellant on the basis of the following facts pleaded in the plaint: "The plaintiff is a citizen of India belonging to Mizo community permanently residing at Lunglawn Thakthing Veng Lunglei Mizoram. He is a contactor by profession under the Mizoram State Sports Council for the construction of excavation of sports complex at Zobawk, Tlawng Hnar, Lunglei in the year 2005. The work order is attached with the plaint. The plaintiff faithfully executed the construction/excavation work under Mizoram State Sports Council and did all the necessary works. For execution of the said work, the plaintiff hired excavator machine from the defendant at the rate of Rs. 2,000/- (Rupees two thousand) only per hour. For engaging Rs.20 lakhs to the defendant for hiring the excavation machine belonging to the defendant. The plaintiff, after completion of the construction work was issued a Cheque amount of Rs. 42,30,159.00/- from the Mizoram State Sports Council, Aizawl, Mizoram bearing No. 031755. The said cheque was in the name of the plaintiff and was signed by cashier of Mizoram State Sports Council. The said cheque was issued in the name of the plaintiff because the plaintiff was the registered contractor for even the said works. The Photostat counterfoil of the cheque issued in the name of the plaintiff with the said amount dated 23.6.2010 of Mizoram Co-Operate Apex Bank Ltd. No. 031755"796806002 was attached in the plaint. That, the actual payee receipt (APR) was issued in the name of the plaintiff with the same amount of Rs. 42,30,159/-. The petitioner had given his signature in the said APR. While the plaintiff tried to withdraw the said Bill from the Mizoram Co-operative Bank, the defendant had submitted the said cheque to the bank and transferred the same in his accounts dishonestly without the consent and permission of the plaintiff. 42,30,159/-. The petitioner had given his signature in the said APR. While the plaintiff tried to withdraw the said Bill from the Mizoram Co-operative Bank, the defendant had submitted the said cheque to the bank and transferred the same in his accounts dishonestly without the consent and permission of the plaintiff. The plaintiff approached the defendant several times to withdraw the money from the defendant's accounts and thus give him but refused and paid no heed. Therefore, the said bill amount was credited into the Accounts of the defendant." 2. On the basis of the aforesaid facts pleaded in the plaint, the plaintiff/respondent made the following prayer: "The plaintiff claims the following reliefs:- (1). Payment of money amounting to Rs. 22,30,159/- (Rupees twenty two lakhs, thirty thousands and one hundred fifty nine) only to the plaintiff by the defendant. (2). Payment of interest at the rate of Rs. 15% from the date of the cause of action had arisen till full realization of the said amount. (3). Any other relief which the court deems fit and proper." 3. Resisting the case of the plaintiff, the defendant/appellant filed written statement, in which, a preliminary objection was raised regarding maintainability of the suit and also the locus standi of the plaintiff to file the same. Apart from the plea of the suit being barred by laches, estoppel, etc. it was also pleaded that the suit was barred for non-joinder of necessary parties. According to the written statement filed by the defendant/appellant, the particular work order was issued in favour of the plaintiff. However, the plaintiff executed the work in association with the defendant. According to the written statement, the particular contractual works in total amounted to Rs. 91,63,265.91 and the plaintiff with the defendant after due understanding and having common interest agreed to execute the work jointly with a condition that the particular Excavator machine belonging to the defendant/appellant would be made use of and the defendant/appellant would be entitled to utilization charge. 4. Referring to the particular cheque bearing No. 031755 dated 23.6.2010 amounting to Rs. 42,30,159/-, it was denied in the written statement that the amount was dishonestly transferred in the account of the defendant. According to the defendant, the amount was meant for the defendant as per his entitlement. Along with the said written statement, the defendant also made the counter claim for payment of Rs. 42,30,159/-, it was denied in the written statement that the amount was dishonestly transferred in the account of the defendant. According to the defendant, the amount was meant for the defendant as per his entitlement. Along with the said written statement, the defendant also made the counter claim for payment of Rs. 56,81,632.50 along with interest @15% per annum from 23.6.2010. 5. On the basis of the aforesaid pleadings, the learned trial Court framed the following issues: "1. Whether the plaint/suit is maintainable in its present form and style? 2. Whether the suit is bad for non-joinder of necessary party? 3. Whether the claim of the defendant No. 1 by way of counter claim is maintainable or not? 4. Whether the plaintiff is entitled to the relief claimed? If so, to what extent? 5. Whether the plaintiff had earned the said amount of money from his contract works from the Mizoram State Sports Council? 6. Who is the legal and rightful owner/possessor of the said Cheque bearing No. 031755? 7. Whether the plaintiff had authorized or permitted the defendant to credit his Cheque in the account of the defendant No. 1? 8. Who is the legal and rightful Contractor to execute the work Order? 9. Whether the defendant No. 1 is entitled to the relief claimed? If so, to what extent?" 6. During the trial, while the plaintiff/respondent examined 5 witnesses, the defendant/appellant examined 3 witnesses. Other defendants, namely, defendant No. 2-4 did not examine any witness. On the basis of the evidence on record, the learned trial Court having decreed the suit requiring the defendant/appellant to pay the plaintiff the aforesaid amount of Rs. 22,30,159/-, the defendant has filed this appeal challenging the said judgment and decree. 7. I have heard Mr. B. Lalramenga, learned counsel for the appellant. I have also heard Mr. L.H. Lianhrima, learned counsel representing the plaintiff/respondent. I have also perused the entire materials on record. 8. Learned counsel for the appellant has submitted in reference to the evidence on record that the issues having not been answered in its true perspective as required as per the provisions of the CPC, the impugned judgment and decree is not sustainable in law. I have also perused the entire materials on record. 8. Learned counsel for the appellant has submitted in reference to the evidence on record that the issues having not been answered in its true perspective as required as per the provisions of the CPC, the impugned judgment and decree is not sustainable in law. Countering the said argument learned counsel for the respondent, however, submits that the impugned judgment and decree being exhaustive dealing with all the contentions and pleadings including the evidence on record, the same is liable to be upheld by dismissing the appeal. 9. The learned trial Court while answering the issue Nos. 1, 2 and 3 has held thus: "Issue No. 1 & 2: Whether the suit is maintainable in its present form and style, and whether the suit is bad for non-joinder of necessary party? Issues No. 1 & 2 are taken up together for the sake of convenience. The present suit had been filed by the plaintiff Shri P.C. Rinzuala without impleading the Mizoram State Sports Council, Mizoram, Aizawl which issued the work order and the Cheque to the plaintiff. However, at the time of hearing of the suit for maintainability, the court had on 2.12.11 ordered the suit to be maintained after hearing the parties. Hence, I am not in a position to raise the question of the maintainability of the suit at this stage. Thus, the two issues are decided in favour of the plaintiff. Issue No. 3. Whether the counterclaim of the defendant No. 1 is maintainable or not? The present issue had also been discussed at the time of preliminary hearing for maintainability and had maintained. Therefore, it is not necessary to raise the question of maintainability of the counterclaim of the defendant No. 1 at this stage. Hence, the present issue is decided in favour of the defendant No. 1." 10. From the above findings recorded by the learned trial Court, it is found that while answering the issue relating to non-joinder of necessary parties, also took into account the issue No. 1 i.e. whether the plaint/suit is maintainable in its present form and style. Hence, the present issue is decided in favour of the defendant No. 1." 10. From the above findings recorded by the learned trial Court, it is found that while answering the issue relating to non-joinder of necessary parties, also took into account the issue No. 1 i.e. whether the plaint/suit is maintainable in its present form and style. Referring to the order dated 2.12.2011 although the issues have been answered by the learned trial Court in the affirmative, however, on perusal of the order dated 2.12.2011 passed in the suit, it is found that the only order passed was to the effect that the suit is maintained without assigning any reason whatsoever. There was no specific answer to the said issues. It is on this count, the learned counsel for the appellant has submitted in reference to the provisions of Order 20 Rule 4 and 5 that it was incumbent on the part of the learned trial Court to answer both the issues assigning reasons for the decisions. On perusal of the aforesaid answer to the issue Nos. 1 and 2, it is found that both the issues have been answered without assigning any reason solely on the basis of the order dated 2.12.2011, by which the suit was simply maintained. 11. While answering the issue No. 3 as to whether the counter claim is maintainable or not although the learned trial Court has held in the affirmative, but while delivering the impugned judgment and decree, did not deal with the counter claim of the defendant/appellant. As per the provisions of Order 8 Rule 6A, a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter claim against the claim of the plaintiff. On perusal of the written statement filed by the defendant No. 1/appellant it is found that he also raised the counter claim to the tune of Rs. 56,81,632.50. However, the learned trial Court although answered the issue in favour of the defendant, but the said claim has not been dealt with on the basis of any issue framed in this regard. 56,81,632.50. However, the learned trial Court although answered the issue in favour of the defendant, but the said claim has not been dealt with on the basis of any issue framed in this regard. While answering the issue No. 4 in favour of the plaintiff, the learned trial Court has recorded the following findings: "...............The plaintiff further stated that he did not make any objection in this regard and did not make complaints to the concerned authorities to stop payment of money to the defendant No. 1. The plaintiff added that he owed Rs. 20,00,000/- (Rupees twenty lakhs) to the defendant No. 1 for hiring charges of excavator machine belonging to the defendant No. 1. He denied that he deposed falsely. From the evidence on record it is clearly seen that the plaintiff and the defendant jointly executed the works on mutual understanding to share the profits from the works. For this the plaintiff spent some amount of money so do the defendant. However, after the said cheque was issued to the plaintiff to withdraw the bill amount, it was transferred/credited into the accounts of the defendant who, even after several requests did not share the money with the plaintiff. As the plaintiff is the registered contractor while the defendant was not, all the official transaction in respect of the bill amount was done in the name of the plaintiff. The plaintiff was the legal owner of the bill amount of the cheque. Hence, issue No. 4 is decided in favour of the plaintiff." 12. Although the learned trial Court has answered the issue in favour of the plaintiff recording the plea of the plaintiff/respondent that he owed Rs. 20 lakhs to the defendant No. 1/appellant as hire charge of Excavator machine but did not discuss anything about the aforesaid counter claim of the defendant/appellant. As regards the other issues No. 5-9, it is the plea of the appellant that without dealing with the counter claim of the defendant No. 1/appellant the said issues could not have been answered in favour of the plaintiff/respondent However, learned counsel for the respondent in reference to the findings recorded against issue No. 9 submits that the counter claim of the defendant/appellant has been dealt with by the learned trial Court. 13. As per the aforesaid provisions of the CPC, the defendant is entitled to file written statement along-with counter claim. 13. As per the aforesaid provisions of the CPC, the defendant is entitled to file written statement along-with counter claim. On the basis of such pleadings of the defendant/appellant it was incumbent on the part of the learned trial Court to answer the issue relating to counter claim. Although, the learned trial Court held that the counter claim of the defendant/appellant was maintainable but the same has not been dealt with on its merit as required as per provisions of the CPC. 14. For all the aforesaid reasons, I am inclined to set aside and quash the impugned judgment and decree dated 23.1.2013 passed by the learned trial Court in Money Suit No. 5 of 2011. The matter shall now go back to the learned trial Court for a fresh decision on the basis of the evidence already available on record. While doing so, the learned trial Court shall also deal with the following issue and such other issues as may be deemed fit and necessary to deal with the counter claim of the defendant No. 1/appellant. Whether the defendant No. 1 is entitled to any relief in respect of his counter claim made in the written statement. 15. If for answering the above, any further evidence is required, the parties shall be entitled to adduce the same. Thereafter, the learned trial Court shall decide the suit on the basis of the available materials and also the further evidence which might be adduced by the parties for the aforesaid additional issue(s). It is expected that the learned trial Court shall decide the matter as expeditiously as possible preferably within 6 (six) months. With the above directions and observations, the appeal stands disposed of. The Registry shall send down the case record to the Court below after observing due formalities to the learned Court below along with a copy of this judgment and order.