Dismissed

P M Muhammed Salim v. Fathima

Kerala HC15 Feb 2016RSA/93/2016

Case brief

AI extract

What is this about?

The High Court at Ernakulam dismissed this second appeal lodged by defendants challenging a decree for payment of a deposit and interest. The court upheld territorial jurisdiction, found the deposit recoverable, and allowed the grant of interest under Section 34 CPC despite the parties' الروابط.

What did the court decide?

The second appeal was dismissed; all interlocutory applications in the appeal were closed.

P M Muhammed Salim Vs Fathima — Contract and Commercial Disputes | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937

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RSA.No. 93 of 2016 (C)

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AGAINST THE JUDGMENT AS. NO.38/2011 OF ADDITIONAL SUB COURT, IRINJALAKUDA DATED 11-09-2015. AGAINST THE JUDGMENT IN OS. NO.729/2006 OF MUNSIFF COURT, KODUNGALLUR DATED 13-01-2010.

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APPELLANTS/DEFENDANTS 1, 6, AND 8:

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1. P.M. MUHAMMED SALIM, BUSINESS, AGED 67 YEARS, S/O.PUNNILATH MOIDEEN BAVA, MANAGING PARTNER, COCHIN BEARING CENTRE, ORIENTAL GARDENS, FLAT NO.30 D, PUNNILATH HOUSE, KARUKAPPILY JN., KOCHI-26.

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2. P.M. MUHAMMED SANIL, AGED 35, S/O. MUHAMMED SALIM, PUNNILATH HOUSE, KARUKAPPILLY JN., EDAPPALLY, ERNAKULAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, P.M. MUHAMMED SALIM, S/O.PUNNILATH MOIDEEN BAVA, AGED 63 YEARS, ORIENTAL GARDENS, FLAT NO.30 D, PUNNILATH HOUSE, KARUKAPPILY JN., KOCHI-26.

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3. COCHIN BEARING CENTER, REPRESENTED BY ITS MANAGING PARTNER, P.M. MUHAMMED SALIM, S/O.PUNNILATH MOIDEEN BAVA, AGED 67 YEARS, ORIENTAL GARDENS, FLAT NO.30 D, PUNNILATH HOUSE, KARUKAPPILLY JN., KOCHI-26.

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BY ADV. SRI.JOHN NUMPELI (JUNIOR).

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RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 TO 5 & 7:

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1. M.M.FATHIMA, W/O.KARUKAPPADUTHU VEDIYIL MOHAMMED IBRAHIM, PULLUT VILLAGE AND DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT- 680 664.

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2. A.A. RAHIM, AGED 41, S/O.ABDULKHADER, PARTNER, COCHIN BEARING CENTRE, ANDIYAKATTU HOUSE, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT-680 664.

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RSA.No. 93 of 2016

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3. N.A. ABDUL RAHIM, AGED 39, S/O.ABDUL KADAR, PARTNER, COCHIN BEARING CENTRE, NJARAKATTIL HOUSE, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT-680 664.

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4. K.K. ABOOBECKER, AGED 66, S/O.KOCHUNNI, PARTNER, COCHIN BEARING CENTRE, KARUKAPADATHUVEDIYIL, NEAR COCHIN PUBLIC SCHOOL, THRIKKAKARA, VAZHAKKAL, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 021.

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5. P.M. MUHAMMED, AGED 67, S/O.PUNNILATH MOIDEEN BAVA, PARTNER, COCHIN BEARING CENTRE, B.T.S. AVENUE ROAD, NEAR KEERTHI NAGAR, ELAMAKKARA P.O., EDAPALLY NORTH, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 026.

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6. P.M. HARRIS, AGED 33, S/O.PUNNILATH MUHAMMED, PARTNER, COCHIN BEARING CENTRE, B.T.S. AVENUE ROAD, NEAR KEERTHI NAGAR, ELAMAKKARA P.O., EDAPALLY NORTH, KANAYANNUR TALUK, PIN-682 026.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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P.B.SURESH KUMAR, J.

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R.S.A.No.93 of 2016

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-----------------------------------------------Dated this the 15^th day of February, 2016

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JUDGMENT

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Defendants 1, 6 and 8 in a suit for realization of

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money are the appellants in this second appeal.

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The case of the plaintiff is that the first defendant had requested the plaintiff to give a deposit to him for the business carried on by him and others in the name of the eight defendant concern and that she gave a deposit of Rs.50,000/- to the first defendant for the said purpose as requested by the first defendant. It is also the case of the plaintiff that since she belongs to Muslim community and since the members of the said community do not lend money on interest going by their religious faith, the understanding between the plaintiff and the first defendant

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R.S.A.No.93 of 2016 2

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was that the defendant shall pay to the plaintiff a share of the profits of the eight defendant concern. It is pleaded by the plaintiff in the plaint that the first defendant has approached the plaintiff at her residence at Kodungallur and the deposit was made in pursuance of the understanding arrived at between them at the residence of the plaintiff at Kodungallur. According to the plaintiff, the defendants have not repaid the amount deposited with the share of profits agreed upon by them and hence the suit.

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The defendants admitted the transaction by

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which the plaintiff gave the deposit of Rs.50,000/- to them. However, it was contended by them that they were paying promptly the share of profits due to the plaintiff for some time and they could not pay the share of profits later as the eighth defendant concern was not earning any profits. They also contended that the Munsiff Court, Kodungallur, before which the suit was filed, has no territorial jurisdiction to entertain the suit.

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R.S.A.No.93 of 2016

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The trial court rejected the contentions raised

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by the defendants and decreed the suit with interest at the rate of 6% per annum from December 2005. Though the defendants challenged the decision of the trial court in appeal, the appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by defendants 1, 6 and 8.

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Heard the learned counsel for the appellants.

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The first contention raised by the learned counsel for the appellants was that the Munsiff Court, Kodungallur had no territorial jurisdiction to entertain the suit. He also contended that in the light of the arrangement entered into by the plaintiff with the defendants, the plaintiff is not entitled to claim back the amount. The learned counsel for the appellant further contented that at any rate, in the light of the arrangement entered into between the parties, the courts below were not justified in granting interest to the plaintiff for the amount decreed.

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R.S.A.No.93 of 2016

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There is no substance in the contentions raised

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by the learned counsel for the appellants. The courts below found on facts that the deposit was made by the plaintiff in furtherance to the arrangement entered into by her with the first defendant at her residence at Kodungallur. In the light of the said finding, I am in agreement with the view taken by the courts below that the Munsiff Court, Kodungallur had jurisdiction to entertain the suit. The case pleaded by the plaintiff in the plaint is that since she belongs to Muslim Community and since the members of the said community do not lend money on interest going by their religious faith, the deposit was made on an arrangement that the defendants shall pay to the plaintiff a share of the profits of the eighth defendant concern. There is nothing on record to indicate that the plaintiff has agreed that if the eighth defendant does not make any profit, the defendants are not liable to return the amount covered by the deposit. In the said view of the matter, there is no

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R.S.A.No.93 of 2016

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merit in the contention that the defendants are not liable to return the amount borrowed by way of deposit from the plaintiff.

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Interest is not seen granted from the date of deposit of money. Instead, interest is granted by the court only from the date of the plaint. Section 34 of the Code of Civil Procedure provides that where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit. Section 34 of the Code of Civil Procedure confers power on the court to grant interest to the plaintiff when a decree is passed for payment of money, from the date of decree. The grant of interest under Section 34 of the Code has nothing to do with the contract, if any, between the parties. In the said view of the matter, there is

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R.S.A.No.93 of 2016 6

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no illegality in the decree for payment of interest granted in favour of the plaintiff. True, the trial court could have, in its discretion, declined interest to the plaintiff for the amount covered by the deposit. However, since the trial court had exercised its discretion under Section 34 of the Code in favour of the plaintiff, this Court cannot interfere in the said discretion, in exercise of the power under Section 100 of the Code of Civil Procedure.

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The appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

P M Muhammed Salim v. Fathima

Case brief

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P M Muhammed Salim v. Fathima

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