IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 AS.No. 350 of 1999() -------------------- OS.159/1993 of SUB COURT, CHERTHALA .................... APPELLANT(S)/1ST DEFENDANT: -------------- JOSEPH SYRIAC, S/O. KURIAKOSE, CHENNOTH KARIYIL, CHERTHALA KIZHAKKUM MURI, KOKKOTHAMANGALAM VILLAGE. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.SABU GEORGE RESPONDENT(S)/PLAINTIFF: --------------- SYRUS CHRISTUDAS V.V., S/O. VARKEY, VANYAMPARAMBIL HOUSE, ROSE GARMENTS, CHERTHALA. ADDL.R2 & R3 IMPLEADED: ADDL.R2. THOMAS SYRIAC, S/O. C.J. KURIAKOSE, CHENNOTHKARIYIL HOUSE, KOKKOTHAMANGALAM VILLAGE, CHERTHALA ADDL.R3 ANTONY SYRIAC, S/O. C.K. KURIAKOSE, CHENNOTHKARIYIL HOUSE, KOKKOTHAMANGALAM VILLAGE, CHERTHALA. ADDLR3 & R4 IMPLEADED AS PER ORDER IN IA.NO.128/05 DTD1.2.05 ADV. SRI.MATHEWS J.NEDUMPARA SRI.SREELAL N.WARRIER SRI.PAULY MATHEW MURICKEN FOR ADDL.RESPONDENTS THIS APPEAL SUIT HAVING COME UP FOR ADMISSION ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.276/2003 & I.A.NO.1604/2005 IN A.S.350 OF 1999 DISMISSED SD/=M.N. KRISHNAN, JUDGE. 10.1.2011. SD/= P.S.GOPINATHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. cl M.N. KRISHNAN & P.S. GOPINATHAN, JJ. ........................................... A.S.NO.350 OF 1999 ............................................. Dated this the 10th day of January, 2011. J U D G M E N T Krishnan, J: This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Cherthala in O.S.No.159/1993. The suit is one for realisation of the amount under a chitty transaction. It is contended that the defendants were conducting a chitty business under the name and style as Chennoth Chitty Pvt. Ltd. First defendant was the Chairman and second defendant was the Managing Partner. Defendants 3 and 4 are Directors. 2. It is the case of the plaintiff that he had joined in a kuri and a sum of ` 83,925/= was due under the Passbook No.67. It is also submitted that a criminal complaint was also filed. After the 32nd instalment, none from the defendants' side came to receive the amount and on enquiry, the plaintiff found that the establishment has been closed. Therefore he had moved a suit for realisation of the amount. The first defendant has filed a written statement contending that the : 2 : A.S.NO.350 OF 1999 suit is bad for non joinder of parties. It is his contention that the defendants were conducting a chitty in the name of Chennoth Chitty Pvt. Ltd., which was a private company registered under the Indian Companies Act. Defendants 1 and 2 were conducting the chitty for and on behalf of the company as the foremen. It is also their contention that the defendants have not stopped receiving payments, but it was the plaintiff who did not do it properly and hence, requested the court to non suit the plaintiff. 3. PW1 and DW1 were examined, Exts.A1 to A3 and B1 and B2 were marked. On an analysis of the materials, the trial court found that the suit is not bad for non joinder of necessary parties and also held that the plaintiff is entitled to the amount claimed and hence granted a decree in favour of the plaintiff. It is against that decision, the first defendant has come up in appeal. 4. During the pendency of the appeal, documents are produced as per I.A.Nos.938 & 4464/2010. One such document is the original receipt for the chitty and another document is the cash voucher. The main contention raised : 3 : A.S.NO.350 OF 1999 by the learned counsel for the appellant is regarding non impleadment of the company as a party to the proceedings. It is true that defendants 1 and 2 were the Chairman and Managing Director, but they have not been impleaded in the capacity as the representatives of the company. A perusal of the passbook would show that it is Chennoth Chitty Pvt. Ltd., and it is made clear that Joseph Syriac and Mathew Syriac are shown as the Chairman and Managing Director. So, the chitty is conducted for and on behalf of Chennoth Chitty Pvt. Ltd. is evident from the passbook issued in favour of the plaintiff. It is true that the word company is not seen used in the passbook. But the Memorandum and Articles of Association of the Company and Exts.B2 would reveal that it is a company incorporated under the provisions of the Companies Act. 5. The contention of the appellant really requires consideration. I feel that the matter requires a little more detailed investigation to find out whether the plaintiff has joined in the kury conducted by Chennoth Chitty Pvt. Ltd. as chitty No.1/1989. We are not making any specific remarks : 4 : A.S.NO.350 OF 1999 on this question, but we are making the matter wide open with liberty to both the parties to adduce evidence to the effect that whether the company has to be impleaded as a necessary party to the proceedings or not. So the question whether the company should be impleaded as a party can be decided as a preliminary issue by the trial court after permitting both the parties to adduce evidence for the reason otherwise the matter has to again be decided and appealed against. 6. The point that is raised by the appellant is that Chennoth Chitty Pvt. Ltd. being a registered company, it has to be impleaded as a necessary party and in the absence of its impleament, the suit is bad for non joinder of necessary parties. 7. The learned counsel for the plaintiff would contend that at the time of joining of the kury, there was no company registered under the provisions of the Companies Act and therefore, he had joined in the kury conducted by the firm Chennoth Chitty Pvt. Ltd. represented by its Managing Director or partners as the case may be. But, in this case, : 5 : A.S.NO.350 OF 1999 unfortunately Chennoth Chitty Pvt. Ltd. is not impleaded either as a firm or as a company and junction of the said concern in one of the capacities is a matter that is essential in order to cast the liability. The question whether it has to be impleaded as a company or as a firm is a matter that can be considered by the court below on the materials available and that will be permitted to be produced by this court. 8. The finding of the trial court that Chennoth Chitty Pvt. Ltd. is not a necessary party is incorrect and therefore it has to be set aside. It has to be impleaded either in the capacity of a firm or a company which is the subject matter of decision. It is also contended that there are payments made. Since the matter is going back, that also can be considered by the trial court. 9. In the result, the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court with a direction to consider the question of non joinder of necessary parties as a first issue i.e., whether Chennoth Chitty Pvt. Ltd. has to be impleaded as a firm or a company, give a direction to that effect after hearing the parties and : 6 : A.S.NO.350 OF 1999 then proceed with the matter in accordance with law. The court can permit the parties to produce both documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law. Documents produced by the appellant before this Court be transmitted along with the lower court records and acceptability and admissibility of the same be considered by the trial court after hearing all concerned. parties are directed to appear before the trial court on 11.02.2011. Refund of the full court fee is allowed. Disposed of accordingly. M.N. KRISHNAN, JUDGE. P.S. GOPINATHAN, JUDGE. cl : 7 : A.S.NO.350 OF 1999 M.N. KRISHNAN, & P.S. GOPINATHAN, JJ. ........................................... A.S.NO.350 OF 1999 ............................................. 10th January, 2011. J U D G M E N T