IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 AS.No. 918 of 1996() & CROSS OBJECTION -------------------- OS.1580/1992 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S)/DEFENDANT : -------------- SAUHARDHA KURIES & LOANS(P) LTD., ELUVATHINGAL BUILDINGS, ERINJERY ANGADI, THRISSUR. REPRESENTED BY ITS CHAIRMAN. BY ADV. SRI.K.PADMANABHAN RESPONDENT(S)/PLAINTIFF: --------------- VARGHESE, S/O.NAYANKARA LONAPPAN NETTISSERY VILLAGE THRISSUR TALUK. ADV. SRI.C.P.DAMODARAN NAYAR,D.KRISHNA PRASAD SRI.JOJI VARGHESE FOR SRI.HARISHARMA.M FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12 / 12 / 2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE J. ------------------------ A.S.No.918 of 1996 ------------------------ Dated this the 12th day of December, 2008 JUDGMENT The defendant is the appellant and the appeal is directed against the judgment and decree of the trial court in a suit filed by the subscriber for a ticket in a kuri conducted by the defendant Kuri company. The parties will be referred to for the sake of convenience as they were before the trial court. The case of the plaintiff was that he is a subscriber for a ticket in a kuri conducted by the defendant company. The value of the ticket was Rs.60,000/- payable in 24 instalments of Rs.2,500/- each. Though the plaintiff became prize winner of the ticket in the draw conducted on 6/9/1990, the defendant refused to pay the prize money to the plaintiff alleging that in violation of the terms and conditions of the kuri, the plaintiff defaulted payment of three consecutive installments hence the forfeiture clause in the kuri conditions became operative and that the right of the plaintiff to claim the amount automatically became forfeited on the day on which the three defaulted subscriptions to be made by the A.S.No.918/1996 2 plaintiff fell due. According to the plaintiff on the day i.e. 6/9/1990 the plaintiff had gone to the defendant's office to effect payment of the instalments. But, the office of the defendant remained closed in connection with pulikkali. The plaintiff, hoping that the office of the defendant will open and function, waited till the evening on 6/9/1990. But the office was not opened on that day. Hence the plaintiff deposited the instalment amounts only on the following day i.e. 7/9/1990. The failure of the plaintiff to remit the instalment on 6/9/1990 was due to the failure of the defendant to open its office. Hence the payment made by the plaintiff on 7/9/1990 is to be treated as payment made on 6/9/1990. According to the plaintiff, the forfeiture clause had not come into operation and the plaintiff had made repeated unsuccessful requests to the defendant to pay the prize money to him. Even the demand made through a registered notice failed to evoke response and hence the suit. 2. The defendant contested the suit by filing written statement. The contentions of the defendant inter alia was that since the plaintiff defaulted payment of three consecutive A.S.No.918/1996 3 instalments his claim for prize amount stands forfeited. The allegation that the defendant's office remained closed on 6/9/1990 in connection with pulikkali in Thrissur was denied. On that day the office remained open and functioned from 10 a.m. To 5 p.m. The auction of the kuri was conducted at 4 p.m. on 6/9/1990 and the plaintiff should have remitted the instalments before 4 p.m. on 6/9/1990. Since that was not done, the right of the plaintiff to claim the prize amount as subscriber stands forfeited. The plaintiff some how came to know that he became the prize winner in the draw conducted in Bangalore on 6/9/1990. It is only on coming to know this that , he came to the office of the defendant, threatened the staff and managed to obtain the receipt from the staff against the payment of one instalment on 7/9/1990. Since the right of the plaintiff to get prize money stands forfeited, he is entitled for only the paid up subscriptions less foreman's commission. On the above pleadings, the learned Subordinate Judge formulated the following issues for trial. 1). Whether the suit is maintainable? 2). Whether the plaintiff is entitled to a decree for the A.S.No.918/1996 4 plaint sum? 3). What is the amount due to the plaintiff? 4). Reliefs and costs? 3. The evidence in the case on the side of the plaintiff consisted of oral evidence of the plaintiff PW1 and Exts.A1 to A6. On the side of the defendant the solitary evidence was the oral evidence of the defendant as DW-1. 4. Ext.A1 was Bill dated 6/9/1990 issued by Tony Agencies; a business establishment functioning in the ground floor of the same building in which the office of the defendant kuri company is also functioning. Ext.A2 is the letter dated 8/9/1990 issued by the defendant company to the plaintiff. Ext.A3 is copy of the notice dated 1/10/1991 issued to the defendant company by the plaintiff. Ext.A4 is the postal acknowledgment card in respect of Ext.A3. Ext.A5 is the duplicate pass book of the 6th day kuri issued to the plaintiff. Ext.A6 is the receipt dated 7/9/1990 issued by the defendant company to the plaintiff. Issue No. 1 was answered by the learned subordinate Judge in favour of the plaintiff since no arguments were addressed by the defendant in support of the A.S.No.918/1996 5 company that the suit is not maintainable. Issue Nos. 2 and 3 were considered together and on evaluating the evidence on the record including the circumstance of the case, the learned subordinate Judge concluded that it was established that the failure of the plaintiff to remit the defaulted instalment on 6/9/1990 was only because the defendant's office remained closed on 6/9/1990. Accordingly, it was held that the forfeiture clause relied on by the defendant has not become operative and hence the plaintiff was entitled for the prize amount. However, considering the question as to what was the actual amount due to the plaintiff, the learned subordinate Judge found that the defendant was entitled to deduct a sum of Rs.10,000/- from the value of the ticket towards foreman's commission. Accordingly, it was found that the balance amount is Rs.50,000/-. Disallowing the plaintiff's claim for interest at the rate of 18 ½%, the learned subordinate Judge held that the plaintiff is entitled for interest only at the normal rate of 12% p.a. and accordingly calculated interest at that rate from 6/10/1990; the date for payment of the prize amount, till the date of institution of the suit and the aggregate amount was arrived at Rs.62,706/-. A.S.No.918/1996 6 Adjusting the amount payable by the defendant for the 11 future instalment the learned subordinate Judge would deduct total amount of Rs.24,750/- from the amount of Rs.62,706/- arrived at and accordingly it was found that the amount due to the plaintiff is only Rs.37,956/-. The suit was accordingly decreed only for that amount. 5. The plaintiff has filed memorandum of cross objection under Rule 22 of Order 41 of the Code of Civil Procedure, objecting to the decree to the extent the same allowed interest only at the rate of 12% p.a. and also to the extent the same deducted a sum of Rs.10,000/- from the prize money towards foreman's commission. 6. I have heard the submissions of the learned counsel for the appellant Mr.K.Padmanabhan and also those of Sri.D.Krishna Prasad, learned counsel for the respondent cross objector. Sri.Padmanabhan argued that the plaintiff's claim for prize money stood forfeited since he had defaulted payment of three executive instalments. He would highlight forfeiture clause 12 in the terms and conditions of the kuri and submitted that on the terms of that clause three consecutive defaults deprive the right of the A.S.No.918/1996 7 auction or draw to subscribers in the kuri. Forfeiture takes place automatically when three successive defaults occur. The learned counsel for the appellant argued that the court below went wrong in relying on the oral evidence of the plaintiff that he had gone to the defendant's office on 6/9/1990 and at that time it remained closed and that he had purchased pencil from the Tony Agencies housed in the same very same building on the same day. Ext.A1 ought not have been relied on by the court below in the absence of any corroborative evidence The owner of Tony Agencies or the salesmen of that establishment was not examined, the learned counsel submitted. The learned counsel submitted that Tony Agencies is a stationary shop which functions even after 5 p.m. to 8 p.m. Purchase of pencil from Tony Agencies will not prove that the plaintiff had visited the office of the defendant during the office hours on 6/9/1990. It was a convincing explanation which was offered by the defendant for its failure to send a reply notice to Ext.A3 and the court below should have accepted that explanation. Sri.Padmanabhan argued that Ext.A6 was obtained by the plaintiff on 7/9/1990 putting the staff of the defendant under duress. A.S.No.918/1996 8 7. Resisting the submissions made by Sri.Padmanabhan, Sri.D.Krishnaprasad argued that there is no infirmity about the findings of the court below that the forfeiture clause had not become operative. The oral evidence of PW1 stood corroborated by Ext.A1 bill issued by the Tony Agencies. The failure of the defendant to send reply to the notice which was issued by the plaintiff was of immense consequence according to Sri.Krishnaprasad. The learned counsel very seriously argued on the basis of the grounds raised in the memorandum of cross objection that the court below was in error in deducting a sum of Rs.10,000/- towards foreman's commission. Noticing prima facie merit in the submissions of Sri.Krishnaprasad regarding the legality of deduction of Rs.10,000/- by the court below towards foreman's commission, I directed the learned counsel for the appellant to show how the defendant company is entitled to deduct so much of amounts towards foreman's commission. Pursuant to that direction Sri.Padmanabhan, learned counsel for the appellant filed a statement on 9/12/2008, which is extracted below. A.S.No.918/1996 9 “1). In the judgment now appealed against the court below has found that an amount of Rs.10,000/- is to be deducted from the value of the ticket as Foreman's commission. As discernible from the schedule to Ext.A5 kuri pass book under item 2 of the terms of the Kuries the total Chit amount is Rs.60,000/- and after deducting the fixed discount of Rs.10,000/- the prized amount at drawing comes to Rs.50,000/- per each chit. This amount includes the Foreman's Commission also. 2. The company is allowing bonus at the rate of Rs.100/- for every ticket for remittance on due dates. For one division i.e. 24 tickets the amount works out to Rs.2,400/-. In addition to the above the subscriber is entitled for permanent discount of Rs.3099.84 for non prized tickets. After deducting the above, the A.S.No.918/1996 10 balance amount is the foreman's commission which comes to less than Rs.5000/-. “ 8. I have very anxiously considered the rival submissions addressed before me and I have made a reappraisal of the evidence available in the case. According to me, the oral evidence tendered by the plaintiff in support of his case that the defendant's office remained closed on 6/9/1990 and hence he was unable to remit the installments on that day is quite convincing and was not shaken in cross examination. The defendant has no case that Tony Agencies is not situated in the same building in which the defendant's office is housed. The defendant also has no case that Ext.A1 is an artificial document concocted by the plaintiff for the purpose of this case. The plaintiff's case that he had gone over to the building which housed the defendants' office and also to Tony Agencies on 6/9/1990 and that at that time the defendant's office remained closed and Tony Agencies was open has been accepted by the court below as a probable and true one. In Ext.A3 notice sent by the plaintiff to the defendant claiming the prize amount, it had been categorically stated by the plaintiff that he was unable to A.S.No.918/1996 11 remit the amount in the office of the defendant on 6/9/1990 since it remained closed. No reply was sent by the defendant to Ext.A3. The explanation of the defendant was that in Ext.A3 the branch in which the said kuri had been started by the defendant was wrongly stated. This explanation was rightly rejected by the court below. The testimony of DW1, the manager of the defendant is to the effect that there is attendance register and other documents which would show that the office of the defendant did not function on 6/9/1990. The best evidence to show that the office of the defendant was functional on 6/9/1990 will be such evidence. The Rule is always that the facts in issue should be proved by the best evidence. The learned subordinate Judge, in my opinion, was justified in following the principle that if the working day happens to be a holiday the transaction on the day following is to be taken as continuation of the transaction of the previous day. Though it was contended by the defendant that Ext.A6 was obtained by the plaintiff by force and duress upon the staff of the defendant, the said contention is given a go by at the time of evidence. I do not find any warrant for interfering with the findings of the learned subordinate Judge on A.S.No.918/1996 12 the question whether the forfeiture clause became operative. As for the memorandum of cross objection, I am of the view that the statement filed by Sri.Padmanabhan in this court conjunction with Ext.A5 bill will show that the court below was justified in deducting Rs.10,000/- towards foreman's commission. The result of the above discussion is that both the appeal and memorandum of cross objection will stand dismissed. The parties are directed to suffer their costs in the appeal as well as in the memorandum of cross objections. PIUS.C.KURIAKOSE,JUDGE dpk A.S.No.918/1996 13 PIUS.C.KURIAKOSE J. ------------------------ A.S.No.918 of 1996 ------------------------ JUDGMENT 12TH DECEMBER 2008