IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RSA.No. 156 of 2008() -------------------------------- AS.226/2005 of DISTRICT COURT, KOZHIKODE OS.193/2002 of II ADDL. SUB COURT, KOZHIKODE .................... APPELLANTS/APPELLANTS/PLAINTIFFS ----------------------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,MINISTRY OF TELECOMMUNICATIONS. 2. ACCOUNTS OFFICER (TELECOM REVENUE)-1 O/O GENERAL MANAGER OF TELECOM, BHARAT SANCHAR NIGAM LIMITED, CLAICUT -673 001. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------------------------------- K.P. RAVEENDRAN, C/O.SMT.MADHAVI, VELAYATTERI HOUSE, KANNADIPOYIL, BALUSSERY, CALICUT. BY ADV. SRI.K.M.FIROZ. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON 21/07/2010 DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.156 of 2008-B ------------------------------------- Dated 21st July 2010 Judgment The plaintiffs, whose suit for arrears of telephone charges, was dismissed by the courts below, are the appellants. 2. The defendant was a subscriber to telephone No.62175 in his business premises at Kozhikode. It is alleged that he committed default in payment of a sum of Rs.1,78,245/- covered by bills for various periods. On 12.04.2002, the Union of India and the Accounts Officer (Telecom Revenue)-1, instituted OS No.193/02 before the Second Additional Sub Court, Kozhikode, for realisation of a sum of Rs.1,28,969.50 with interest thereon. 3. The defendant resisted the suit, pointing out that the Union of India was an unnecessary party and that the plaint has not been filed by a competent person. It was also contended that the second plaintiff had no locus RSA 156/08 2 standi to file the suit since the BSNL had taken up the affairs and that the BSNL was not shown as a party to the suit. It was also pointed out that the claim was barred by limitation. On the basis of these contentions, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of Exts.A1 to A7 produced by the plaintiff. No oral evidence was adduced by either side. The Trial Court found that (1) the suit was not instituted by a competent person (2) BSNL has not been made a party to the suit and (3) the suit is barred by limitation. 5. The plaintiffs carried the matter in appeal as AS No.226/05 before the District Court, Kozhikode. The lower Appellate Court reconsidered the various issues raised before the said Court and came to the conclusion that the suit is barred by limitation. The lower Appellate Court also observed that the notification showing that the assets and liabilities of the Telecom Department having been RSA 156/08 3 transferred to the BSNL, was not produced and this is fatal to the suit. The lower Appellate Court also concurred with the Trial Court in holding that the suit was not instituted by a competent person. Hence the Second Appeal. 6. The learned counsel for the appellants pointed out that the courts below were not justified in holding that the suit is barred by limitation. The BSNL came into existence only on 01.10.2000 and the cause of action as far as the BSNL is concerned, begins only from that date. Previous to that, the Union of India and the Telecom Department had 30 years' period to recover the amount from the defendant. As soon as BSNL came into existence, the suit has been laid and therefore, the finding that it is barred by limitation, is not justified. It is also pointed out that it was not proper on the part of the lower Appellate Court to have given much importance to the non-production of a notification showing that the assets and liabilities of the erstwhile Telecom Department have been transferred to the BSNL. The learned counsel pointed out that they RSA 156/08 4 sought to produce the same before the lower Appellate Court. Therefore, the Judgment and decree of the courts below are not sustainable. 7. The suit has to fail on a very short ground. It is stated in the written statement that the plaint is not signed by a competent person and unless the BSNL is shown as a party, the suit is bad for non-joinder of necessary parties. The Trial Court held in favour of the defendant. Even at the appellate stage, there was no move from the side of the plaintiff to cure the defect. However, at the appellate stage, it is conceded that the Union of India was an unnecessary party. However, the other defect that the plaint was not signed by a competent person remained and the BSNL was not on the party array also. Therefore, there was no proper representation on behalf of the BSNL. As the suit has been instituted after 01.10.2000, BSNL alone could have instituted the suit. Therefore, even assuming the assets and liabilities of the earlier Telecom Department were transferred and taken over by BSNL, that is of not RSA 156/08 5 much help to the plaintiff. In spite of pointing out the defect in the institution of the suit, nothing was done to cure the defect. On this short ground, the appeal has to fail. The Second Appeal is without merits and it is accordingly dismissed, confirming the Judgment and decree of the courts below. P.BHAVADASAN, JUDGE sta RSA 156/08 6