Decided on June 22,1971

Lingam Venkanna Pantulu Appellant
Konaseema Co Respondents


RAMACHANDRA RAO, J. - (1.) The defendant in O.S. No. 176/1964 on the file of the Court of the District Munsif, Amalapuram, is the appellant herein. The suit was filed by the plaintiff the respondent herein, the Konaseema Co-operative Central Bank Limited, Amalapuram, represented by its president P. Satyanarayana Raju, against the defendant for recovery of a sum of Rs. 3806-49 P. comprising of Rs. 2,000/- towards damages and of Rs. 1806-49 towards the amount said to have been unlawfully drawn by the defendant from the plaintiff-bank.
(2.) The facts giving rise to this appeal are as follows: The defendant was an employee of the plaintiff-bank and he had to retire on completion of his 5th year. The plaintiff required the defendant to furnish authentic record about is correct date of birth and the said particulars were not available with the plaintiff-bank. The defendant submitted a memo stating that he had a already furnished his date of birth in 1934, that the then Honorary secretary made all the entries in the Service register, that the date of birth was entered as 11-2-1909 and he called upon the plaintiff to cause search for his service register. The plaintiff alleged that the defendant had clandestinely removed the service register from the bank premises and that the search made by the bank employees was of no avail. The plaintiff found on the material available that the correct date of birth of the defendant was 11-2-1907. The Board of Management passed a resolution on 19-12-1962 to the effect that the defendant should retire from service with effect from 31-12-1962, unless he was able to satisfy the plaintiff before that date by production of authentic record that he had not completed his 55th year by then. A copy of the said resolution was sought to be served on the defendant, but he evaded service, and filed a suit O.S. 201/62 on the file of the District Munsif's court. Amalapuram, against the plaintiff for a declaration that the said resolution dated 19-12-1962 retiring the defendant from service with effect from 31-12-1962 was illegal, null and void and that he was entitled to continue in service till 11-2-1964, and for a perpetual injunction restraining the plaintiff from interfering with his continuance in service till the said date. An ex-parte order of interim injunction was obtained by the defendant on 24-12-1962 and it was vacated on 27-4-1963. The plaintiff issued proceedings on 29-4-1963 informing the defendant that his term of office expired by 31-12-1962 and that he would be considered to have ceased to hold the office from that date. These proceedings were sought to be served on the defendant but he evaded service. After reopening of the Subordinate Judge's Court after summer recess, the defendant filed an appeal, C.M.A. No. 8/1963 against the order of the lower court vacating the interim injunction, and along with the said appeal, he filed a petition for the issue of an interim injunction restraining the plaintiff from enforcing the resolution dated 19-12-1962. An interim injunction was issued by the said Court and the defendant continued in office under the said order. The plaintiff filed an application for vacating the injunction but it was not disposed of. The defendant then moved the District Court for transfer of the suit but that petition for transfer was dismissed. Later, when the suit came up for trial the defendant withdrew the same on 10-2-1964. He did not press the appeal. M.A. 8/63 filed against the order vacating the interim injunction. The plaintiff contended that the suit as well as the order of injunction were all filed by the defendant maliciously and without reasonable and probable cause, that he knew that his correct date of birth was only 11-2-1907 and that he had to retire on completion of his 55th year, and that by reason of the Board's resolution dated 19-1-1972, he had to vacate the office by 31-12-1962. It was alleged that the defendant should be deemed to have drawn the amounts from the bank from 1-1-1963 to 10-2-1963 unlawfully, and that he was liable to repay the same. This amount is stated to be a sum of Rs. 1806.49 P. paid towards salary, dearness allowance, special, allowance, house rent allowance and Provident Fund contribution, by the task. In addition, the plaintiff claimed a sum of Rs. 2000/- towards damages for loss of reputation and credit.
(3.) The defendant filed a written statement traversing the several material allegations in the plaint. He contended that his correct date of birth is 11-2-1909, that it was so entered in the service register by the then Honorary Secretary, that the resolution dated 19-12-1962 passed by the Board of the plaintiff bank was not communicated to him, that the bank was not justified in retiring the defendant with effect from 31-12-1952 as he was entitled to continue in service till the completion of his 55th year on 11-2-1964 and that the entires in the service register must have been tampered with, As the bank was seeking to enforce the resolution dated 19-11-1962, he filed the suit O.S. 201/1962, and obtained injunction. When the injunction was vacated, he filed the appeal in the Sub Court and obtained an interim injunction restraining the bank from enforcing the resolution, that during the period the order of injunction was in force he continued to render service to the bank and that by reason of efflux of time, the date of his retirement 11-2-1964 had been reached, and the suit and the appeal bad become infructuous and therefore he withdrew the same, He contended that the proceedings taken by him were legal and valid and were not malicious or taken without reasonable and probable cause. He further stated that he was not paid salary for the period 27-4-1963 to 27-6-63. He also repudiated the claim of the plaintiff for recovery of damages.;

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