Allowed

Sajimon v. C.K.Parameswara Panicker (Died)

Kerala HC4 Jul 2022RFA/489/2006

Case brief

AI extract

What is this about?

The High Court allowed the appeal, dismissing the recovery suit. It held that since the company was not joined as a party and the audit report was not produced, the suit could not proceed. The trial court's decree of recovery was set aside.

What did the court decide?

The decree and judgment of the trial court were set aside and the suit was dismissed. Appellants to be induced to pay court fee.

Sajimon Vs C.K.Parameswara Panicker (Died) — Contract and Commercial Disputes | Kerala HC (2022)

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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.SOMARAJAN

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MONDAY, THE 4^th DAY OF JULY 2022 / 13TH ASHADHA, 1944

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RFA NO. 489 OF 2006 (A)

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AGAINST THE JUDGMENT & DECREE DATED 30.08.2003 IN OS No.38/2002 OF

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ADDITIONAL SUB COURT, ALAPPUZHA

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APPELLANTS/DEFENDANTS:

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1 SAJIMON, S/o P.K.GOPINATHAN, NILAMNIKARTHIL HOUSE, SOUTH ARYAD VILLAGE, ALAPPUZHA DISTRICT.

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2 P.K.GOPINATHAN, S/o PACHEN, NILAMNIKARTHIL HOUSE, SOUTH ARYAD VILLAGE, ALAPPUZHA DISTRICT. (DIED)

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3 VINOMMA, W/o P.K.GOPINATHAN, NILAMNIKARTHIL HOUSE, SOUTH ARYAD VILLAGE, ALAPPUZHA DISTRICT.

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ADDL.A4 LEJIMOL, W/o SUDARSANAN, 'SRUTHIYIL', SOUTH ARYAD, AVALOOKKUNNU, P.O. ALAPPUZHA 688 006

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ADDL.A5 GIJIMOL, W/o RADHAKRISHNAN, 'GOKULM', KUTHIRAPPANTHY P.O., THAZHAVA, KOLLAM -690 523.

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(ADDITIONAL APPELLANTS 4 AND 5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED SECOND APPELLANT VIDE ORDER DATED 16/02/2022 IN IA 3/2021)

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BY ADV A.FRANCIS

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RESPONDENTS/PLAINTIFFS:

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1 C.K.PARAMESWARA PANICKER (DIED) PRESIDENT, S.D.V. MANAGING COMMITTEE, ALAPPUZHA

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RFA No.489 of 2006

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J. KRISHNAN, PRESIDENT, SDV MANAGING COMMITTEE, ALAPPUZHA IS SUBSTITUTED IN THE PLACE OF R1, WHO IS EXPIRED AS PER ORDER DATED 02.02.12 IN I.A. No.30/12 2 N.RAMADAS PRABHU (DIED) SECRETARY, S.D.V.MANAGING COMMITTEE, ALAPPUZHA * R.KRISHNAN, SECRETARY, SDV MANAGING COMMITTEE, ALAPPUZHA IS SUBSTITUTED IN THE PLACE OF R2 WHO IS NO MORE AS PER ORDER DATED 12.01.12 IN I.A. 19/12

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R1 & R2 BY ADVS. K.ANAND (SR.) LATHA KRISHNAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.489 of 2006

JUDGMENT

The defendants came up in appeal aggrieved by the decree and judgment of the trial court granting a decree of recovery of money from the defendants 1 to 3 jointly and severally, based on Ext.A2 promissory note and an equitable mortgage over the property covered by Ext.A5 purchase certificate and Ext.A6 sale deed. Ext.A4 is the memorandum of deposit of title deed for creating mortgage. The first defendant is the son and second and third defendants are the parents. The allegation of the plaintiffs is that earlier the first defendant was the employee of S.D.Vidhya Sala company, registered under the Companies Act and during the course of employment, he had misappropriated an amount of Rs.1,97,800/-. In discharge of the said liability a promissory note was executed besides the deposit of title deed. The suit was filed for recovery of the said amount. The defendants, in turn, contested the suit stating that the misappropriation alleged is not correct. Ext.A2

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RFA No.489 of 2006

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promissory note was brought into existence under duress and coercion. Likewise Ext.A4 memorandum of deposit of title deed was also executed under duress and coercion. No amount

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is due to the S.D.Vidhya Sala company. In fact, the suit was instituted by two persons in their individual capacity claiming to be the President and Secretary of the company. But, the company is not a party to the suit either as the plaintiff or as the defendant. It is not a suit filed by the company represented by its President or Secretary. It is the claim of the plaintiff who gave oral evidence as PW1 that as per the audit conducted in the company, the said amount is due from the defendant as he has misappropriated the abovesaid amount during the course of his employment. Strange enough, the audit report in which the claim raised was not produced or let in evidence by the plaintiffs. Even the company is not joined as a plaintiff, co-plaintiff or a co-defendant in the suit. When Ext.A2 and A4 documents are brought under doubt on the ground that those were executed under coercion and threat and when it is for payment of money alleged to have been misappropriated, no claim can be raised on the said document, unless the amount

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RFA No.489 of 2006 5

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entered therein reflects the proper amount due from the defendants, for which necessarily the audit report should be produced. A document which was obtained under duress or threat cannot be relied upon when the best evidence is withheld by the plaintiffs for the reason best known to them. In fact, the plaintiffs are one P. Venugopal and N. Ramdas Prabhu and not the S.D.Vidhya Sala company. Their address is stated in the plaint as Secretary and the President of SDV Managing Committee. But it is not clear what is the status of S.D.V. Managing Committee. Unless the company with whom the liability arises is made as a party to the suit, no decree can be granted. The mere fact that

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the address of first and second plaintiff shown as the President and Secretary of a committee may not by itself constitute the institution of a suit by a company, a private limited company registered under the Companies Act. Hence, on both grounds, the suit will not lie. Appeal will stand allowed. The decree and judgment of the trial court are set aside and the suit is dismissed. Since the appeal was instituted as an indigent person, recover the entire court fee payable from the appellants under Order 33 Rule

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RFA No.489 of 2006

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14 CPC, in the event of non payment of the said amount

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within three weeks from today.

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Appeal is allowed accordingly. No cost.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Sajimon v. C.K.Parameswara Panicker (Died)

Case brief

What is this about?

What did the court decide?

Sajimon v. C.K.Parameswara Panicker (Died)

Case brief

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What did the court decide?

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