VASUDEVAN Vs. C.K. NARAYANAN NAMBOODIRI, ASSISTANT, LIFE INSURANCE CORPORATION OF INDIA,
LAWS(KER)-2003-2-101
HIGH COURT OF KERALA
Decided on February 11,2003

VASUDEVAN Appellant
VERSUS
C.K. Narayanan Namboodiri, Assistant, Life Insurance Corporation Of India, Respondents

JUDGEMENT

Padmanabhan Nair, J. - (1.) THE first defendant in O.S.No. 342 of 1983 on the file of the Principal Sub Court, Alleppey is the appellant in this appeal. The appeal is filed against the judgment and decree passed by a Learned Single Judge of this Court by which the decree of the trial court allowing the second respondent to recover money from the second defendant is altered as a decree allowing recovery of money from the first defendant. Second respondent Society is a voluntary organisation governed by Ext.A1 bye -laws. The share capital of the Society is 10 coconuts or value of the same as one share and that is to be contributed once in two months. The coconuts contributed by the members will be sold in public auction and the Secretary is authorised to collect the amounts and issue receipts. He is also authorised to keep upto an amount of Rs. 2,000/ -. Any amount in excess of that amount has to be deposited in the State Bank of Travancore in the joint account maintained by the President and Secretary of the Society. The persons who intend to take part in the auction of the coconuts shall deposit the earnest money and also the amount which the Committee fixes as security. The Committee has the right to modify and alter the conditions of auction.
(2.) THE second respondent -plaintiff filed the suit for realisation of an amount of Rs. 50,580/ - with interest from the first defendant and his assets. It was alleged that the first defendant was the successful bidder of the auction of the coconuts held on 9 -2 -1981 and the plaint amount was due towards the balance of the bid amount. It was further alleged that the Secretary released the coconuts without receiving the full auction amount and crediting the same in the account of the Society and hence in case it was found that the 1st defendant is not liable the plaintiff may be allowed to recover the plaint amount from the assets left by the Secretary who died and is now in the possession of the 2nd defendant. The trial court found that the first defendant paid the amount to the Secretary and he is not liable for the amount claimed. It was further found that the then Secretary misappropriated that amount and so the plaintiff is entitled to get a decree from the assets left by the Secretary who is no more. The second defendant on whom the assets devolved filed an appeal, A.S.No. 166 of 1988, before this Court challenging the decree passed by the trial court. The Learned Single Judge found that there is no evidence to hold that the first defendant paid the amount and the first defendant failed to prove the discharge pleaded and hence he is liable to pay the amount. Since the relief of recovery from the assets of the deceased Secretary was sought for only as an alternate relief, that was not granted. The first defendant has filed this A.F.A. challenging the judgment and decree passed by the Learned Single Judge of this Court. The learned counsel appearing for the appellant has argued that the trial court after a proper appreciation of the evidence found that the first defendant paid the amount to the Secretary who is authorised to receive the same and hence exonerated the first defendant from any further liability. It is contended that though the relief sought for against the first defendant was refused and the decree was passed only against the second defendant, the plaintiff did not file any appeal. It is argued that the plaintiff could not have maintained any memorandum of cross objection in the earlier appeal as that was a matter between the two respondents only. The learned counsel appearing for the second respondent has argued that the plaintiff is unconcerned whether the decree is passed against the appellant or the first respondent. It is argued that in the original plaint also the main relief is sought against the appellant and the relief as against the second defendant was sought for only as an alternate remedy. It is further argued that in view of the provisions contained in Order XLI, Rule 33 of the Code of Civil Procedure, the decree passed by the Learned Single Judge is perfectly correct and does not call for an interference. The second defendant in the suit has contended that the decree passed by the learned Single Judge is perfectly correct and does not call for interference.
(3.) THE suit was one for money. Plaintiff is a voluntary Organisation represented by its Secretary. Ext.A1 is the bye -law of the Society. As we have already stated, ten coconuts or its value is treated as one share. Every member has to contribute that share once in two months. The coconuts so collected are sold in public auction. The claim in this case relates to the price of coconuts sold on 9 -2 -1981 in public auction. The appellant was the successful bidder in the auction. He quoted the price at Rs. 1735/ - per thousand coconuts. That was accepted and the sale was confirmed in his name. there were 48,189 coconuts, the value of which was fixed as Rs. 83,607.92. According to the second respondent the auction purchaser paid an amount of 40,376.85 and the balance of Rs. 43231.07 is due to the Society. The allegation is that without depositing the entire amount in the Society, the then Secretary allowed the appellant auction purchaser to remove the coconuts sold in public auction and thereby an amount of Rs. 43231.07 is due to the Society. The then Secretary Sri. C.N. Sankaranarayanan Namboodiri died on 19 -1 -1982. In the plaint the main relief is sought against the first defendant and alternate relief is sought against the assets of the deceased Secretary which devolved upon the second defendant.;


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