IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 43 of 2001 Sri Swami Mahamandeleshwar Devanand Ji Maharaj Saraswati, President Sanyasi Sangh, Permanent R/o 10, Park Side Road, Calcutta, Presently residing at Sanyasi Sangh, Bholagiri Ashram Bholagiri Road, Haridwar. ………Defendant/appellant. Versus M/s Raj Kumar Chadda & Associations & others. ….Plaintiffs/Respondents. Shri Sudhir Kumar, Advocate present for the defendant No. 2/appellant. No one turned up on behalf of plaintiffs/respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 96 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17.02.2001, passed by Civil Judge (Sr. Div.), Haridwar, whereby said court has decreed the suit for recovery of Rs. 12,54,000/- along with interest at the rate of 12% per annum from the date decree of the suit and, 6% per annum for the period of pendency of suit. 2. Heard learned counsel for the appellant and perused the entire lower court record. No one turned up on behalf of the plaintiffs/respondents at the time of final hearing even though they were represented in the appeal by their counsel namely Shri Pankaj Miglani, Shri Dharmendra Barthwal, 2 Shri Rajeev Bhatt, Shri Narendra Bali and Shri I.P. Kohli. 3. Brief facts of the case are that plaintiffs (present respondents), instituted suit No. 75 of 1992, for recovery of Rs. 12,54,000/-, and interest thereon against the defendants. It is pleaded by the plaintiffs in the plaint that the plaintiffs are partners of a partnership firm earlier known as ‘M/s Raj Kumar Chadha and Company’ (which later on got registered their firm with the name of ‘M/s Raj Kumar Chadha and Associates’). Defendant No. 1 SANYASI SANGH West Bengal, was registered as a society in West Bengal under West Bengal Act 26 of 1961, and defendants No. 2 to 5, were the members of the Executive of said society. It is further pleaded by the plaintiffs (present respondents) in the plaint that the said SANYASI SANGH had a property in Haridwar known as – SHRI BHOLANAND GIRI ASHRAM. In said Ashram, pilgrims come and stay. Said SANYASI SANGH of West Bengal, felt that to renovate the building of Ashram, it required money as such, it wanted to let out 16 rooms on payment of premium. Swami Jyotirmayanand Giri (since deceased) was the Secretary of SANYASI SANGH in the year 1988- 89. When the plaintiffs expressed their interest to take on lease the 16 rooms of the Ashram, the officials of Ashram told that Swami 3 Jyotirmayanand Giri was to come from Calcutta. Initially in November/December, an amount of Rs. 1,00,000/- was paid as premium by the plaintiffs to Swami Jyotirmayanand Giri, Secretary of SANYASI SANGH, and he assured the plaintiffs that he would discuss the matter with the trustees and then to respond in the matter. However, later he gave back the amount to the plaintiffs saying that it was insufficient and the trustees of SANGH are not ready to let out the property on such a small premium. Thereafter, talks on fresh deal were discussed between Jyotirmayanand Giri and the plaintiffs. Shri Jyotirmayanand Giri wanted Rs. 15,00,000/- as premium, while plaintiffs were ready to part with only Rs. 10,00,000/-. In pursuance to the talks between the plaintiffs and Jyotirmayanand Giri, Secretary of SANYASI SANGH, Rs. 1,00,000/- was again paid on 15.05.1989 (through cheque), Rs. 2,00,000/- were paid on 29.05.1989 (through cheque) and Rs. 6,00,000/-(through cheque) were paid on 30.05.1989. Apart from the above sum, Rs. 30,000/- cash was paid on 30.05.1989. However, according to the plaintiffs, the defendants did not honour the agreement to execute lease of 16 rooms of the Ashram building and the plaintiffs demanded back the amount, paid as premium. Meanwhile, Shri Jyotirmayanand Giri, expired in August 1989. 4 Thereafter, the plaintiffs instituted suit in the year 1992 for recovery of Rs. 12,54,000 (Rs. 9,30,000/- and 12% per annum interest on said amount). 4. The suit was contested by the defendant No. 2 (present appellant). As against the other defendants, suit proceeded exparte. In the written statement of the defendant No. 2, it is pleaded by the contesting defendant / present appellant that Shri BHOLANAND GIRI ASHRAM, has nothing to do with the SANYASI SANGH. It is further pleaded that BHOLANAND GIRI ASHRAM, is property of SRI SRI BRAHMESHWAR SHIV THAKUR. It is denied by answering defendant that there was no agreement to part with 16 rooms of the ashram on lease to the plaintiffs. It is denied that Jyotirmayanand Giri ever wrote to the answering defendant in the matter. It is further stated in the written statement that Swami Jyotirmayanand Giri was not authorised to accept Rs. 9,30,000/- or any other amount on behalf of BHOLANAND GIRI ASHRAM. It is further pleaded that the suit is not maintainable as against the answering defendant. It is also pleaded that the suit is bad for misjoinder of necessary parties. It is also pleaded that the suit is barred by territorial jurisdiction. 5 5. On the basis of the pleadings of the parties, the trial court framed following ten issues:- 1. Whether the plaintiffs paid to the defendant No. 1 through Shri Swami Jyotirmayanand Giri, the then Secretary of Sanyasi Sangh, Rs. 1,00,000/- on 15.05.1989, Rs. 2,00,000/- on 29.05.1989 and Rs. 6,00,000/- on 30.05.1989, as part of consideration on account of agreement between the parties? 2. Whether on 30.05.1989, plaintiff paid Rs. 30,000/- cash to defendant No. 1 through Swami Jyotirmayanand Giri, the then Secretary of Sanyasi Sangh? 3. Whether the plaintiffs are entitled to 12% interest, claimed by them on the amount of Rs. 9,30,000/- , allegedly paid by them ? 4. Whether the amount in suit was accepted by Swami Jyotirmayanand Giri in his personal capacity and are the defendants not bound by it? If so, its affect? 5. Whether the defendant No. 1 has no concern whatsoever with the property in suit and is the property in question belongs to Sri Sri Brahmeshwar Shiv Thakur? If so, its affect? 6. Whether Swami Jyotirmayanand Giri had no authority to receive any payment or to make any agreement on behalf of the defendants? If so, its affect? 6 7. Whether the suit is not maintainable for want of registration of the alleged agreement between the parties.? 8. Whether the court has no territorial jurisdiction to try the suit? 9. Whether the suit is bad for misjoinder of parties? 10. To what relief, if any, the plaintiffs are entitled? 6. After recording the evidence and hearing the parties, the trial court found that the payment of Rs. 9,30,000/- was accepted by Swami Jyotirmayanand Giri, the then Secretary of SANYASI SANGH. It also held that the defendants are bound to pay back the payment, accepted by Swami Jyotrimayanand Giri. As such, issues No. 1 to 3, were decided in affirmative and issues No 4 to 9, were decided in negative. With these findings, issue No. 10, was decided in affirmative and suit was decreed for recovery of Rs. 12,54,000/- along with interest at the rate of 6% per annum for the period of pendency of the suit and at the rate of 12% after the decree is passed till the payment is made. Aggrieved by said judgment and decree, this appeal is preferred by defendant No. 2, before this Court. 7. Learned counsel for the appellant/defendant No. 2 submitted that 7 whatever evidence has been adduced by P.W. 1 Raj Kumar Chadha, P.W.2 Surendra Kumar Vohra, P.W. 3 Ram Murti and P.W. 4 Jogendra Singh, read with the documentary evidence, filed with list 19C, 55C and 67C, only proved the fact that Jyotirmayanand Giri, accepted Rs. 9,30,000/- from the plaintiffs. Learned counsel for the appellant further argued that it is not proved on record that Swami Jyotirmayanand Giri (who died before the institution of suit) was ever authorised by Bholanand Giri Ashram to accept said amount or to execute lease of rooms of Ashram in favour of the plaintiffs. It is further contended on behalf of the appellant that it is not proved that property of BHOLANAND GIRI AHSRAM, was owned by SANYAS SANGH of which Jyotirmayanand Giri was the Secretary. In this connection, attention of this Court is drawn on behalf of the appellant to the judgment and decree dated 01.08.2007, passed by this Court in Second Appeal No. 09 of 2007, in which this Court has concurred with the view that the trial court and that of the first appellate court in suit No. 210 of 1992, wherein it is held that SANYAS SANGH, registered in West Bengal is a separate body from BHOLANAND GIRI ASHRAM. However, this Court is of the view that document cannot be read as against the present respondents (plaintiffs), who were not party in said suit. But this much is clear that 8 the plaintiffs have not adduced before the trial court any evidence to show that Jyotirmayanand Giri was the person authorised to transfer rooms of BHOLANAND GIRI ASHRAM on lease to the plaintiffs. 8. The trial court has observed that defendants other than defendant No. 1 are officials of SANYASI SANGH. But merely for that reason the officials of SANYASI SANGH cannot be said to be personally liable to pay amount to the plaintiffs unless it is shown that the assets of SANYASI SANGH were at their disposal after death of Swami Jyotirmayanand Giri. Unless said fact is proved by the plaintiffs, as against the defendant No. 2, he cannot be directed to pay the amount, received by Swami Jyotirmayanand, the then Secretary of SANYASI SANGH, registered in West Bengal. It is pertinent to mention here that defendant No. 2 (present appellant) has not been pleaded to be the Secretary of SANYASI SANGH West Bengal, after death of Swami Jyotirmayanand Giri. 9. Apart from the above facts, it is also not proved on the record that the amount was received was given to Jyotirmayanand Giri or SANYASI SANGH, as part of consideration of an agreement. There is no written agreement on the record. From the correspondence letter, 9 brought on record by the plaintiffs only this much is proved that it was Swami Jyotirmayanand Giri, who assured to execute lease to the southern part of the Ashram, but it is not clear under what authority he made such a commitment. 10. For the reasons, as discussed above, this Court finds that the trial court has committed error of in holding that the defendant No. 2 is also liable to pay the decretal amount to the plaintiffs. As such, the findings recorded by the trial court, on issues No. 4,5, 6 and 10, as against the defendant No. 2, are liable to be reversed to the extent it relates to the appellant (defendant No. 2). 11. Accordingly, appeal of defendant No. 2 is allowed. The impugned judgment and decree, passed by the trial court, is set aside so far it relates to defendant No. 2 (present appellant). As against other defendants decree passed by the trial court is upheld. Costs easy. (Prafulla C. Pant, J.) Dt:11.09.2009 Sweta 10