IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 RSA.No. 1304 of 2008() ---------------------- AS.89/2005 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.479/2003 of PRL.M.C., KOTTAYAM .................... : APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. T.L.SEBASTIAN, S/O.T.C.LUKOSE, AGED 60 YEARS, RESIDING AT THYKKATTU HOUSE, NATTASSERRY KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK AND DISTRICT. 2. MARY SEBASTIAN, W/O.T.L.SEBASTIAN, AGED 52 YEARS, RESIDING AT THYKKATTU HOUSE, NATTASSERRY KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK AND DISTRICT. BY ADV. SRI.KOSHY GEORGE SRI.P.I.DAVIS SRI.P.C.HARIDAS RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- P.V.C.CHIT FUND, A FIRM REG.UNDER THE INDIAN PARTNERSHIP ACT, HAVING ITS REG.HEAD OFFICE AT KOTTAYAM AND BRANCH OFFICE AT JAMMU TAWI REP. BY ITS MANAGING PARTNER, ITTY IPE CHERIAN, AGED 52 YEARS, S/O.CHERIAN ITTY IPE R/AT KOSAMATTOM PUTHEN PURA, NATTASSERRY KARA, VIJAYAPURAM VILLAGE, KTM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. 2831 OF 2008 IN R.S.A. NO. 1304 OF 2008 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 28.5.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1304 of 2008 ---------------------------------------- Dated this the 28th day of May, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 89/2005 on the file of the Additional District Court (Special) Kottayam arises from the judgment and decree in O.S. No. 479/2003 of the Principal Munsiff's Court, Kottayam. The respondent herein, a Chitty Company filed the suit for realisation of money. The suit was decreed by the trial court and confirmed in appeal by the lower appellate court with a slight modification regarding the percentage of interest Hence this Second Appeal is filed by the defendants in the suit. The parties hereinafter referred to as plaintiff and defendants. 2. The 1st defendant subscribed for 'A' class ticket in the chitty conducted by the Jammu Tawi branch of the plaintiff firm. The sala of the Chitty was Rs. 1 lakh having 100 instalments of Rs. 1,000/- per month. The chitty was started on 17.2.1997. In the auction held on 18.10.1999 for the 34th instalment the 1st defendant bid in auction through proxy and the prized amount was Rs. 60,000/- . After complying with all other formalities the parties entered into an agreement whereby the defendants acknowledged receipt of Rs. 60,000/- and undertook to pay the future intalments of Rs. 1,000/- each per instalment without default till the termination of the chitty. As collateral security the defendants R.S.A 1304 of 2008 -2- deposited original pattayam No. 377 of 1986 of the Kottayam Land Tribunal in respect of 14 Cents of land which belong to one Sri.Sebastian. According to the plaintiff, the defendants paid subsequent instalments upto instalment No.64 and defaulted later instalments. Hence the plaintiff filed the suit for realisation of money. 3. The suit was resisted by the defendants contending interalia that the amount claimed by the plaintiff is on the basis of illegal transaction. The defendants denied the fact that the 1st defendant was a subscriber in the plaintiff's chitty started through it's Jammu Tawi Branch . They admitted that the 1st defendant was a subscriber in a chitty with a sala of Rs. 1 lakh having 100 instalments of Rs. 1000/- per month. According to the defendants the documents produced by the plaintiff in the suit are not genuine and fabricated and therefore not binding on them. 4. From the side of the plaintiff PW1 was examined and Exts. A1 to A10 were marked. DWs 1 and 2 were examined on the defendants' side 5. According to the defendants the suit was hit by 69(2) of the Indian Partnership Act and the same is not maintainable. The trial court held that the plaintiff is a firm registered under the Indian Partnership Act having its its registered Head Office at Kottayam and Branch Office at Jammu Tawi The trial court also held that there is no merit in the R.S.A 1304 of 2008 -3- contentions raised by the defendants. Even before this Court the appellants/ defendants have no case that the plaintiff firm is an unregistered one. 6. It is not disputed that the 1st defendant subscribed a chitty the sala of which is Rs.1 lakh having 100 instalments of Rs. 1,000/- per month. But it is contended that the plaintiff made the defendants to believe that the chitty is started from the plaintiff's Head Office at Kottayam. The trial court also noted the admission of DW1 that his signature in Ext.A1 Thalavariola and also the fact that he executed the same at the time of subscribing the ticket for the chitty. He also admitted his signature in Exts. A2 to A5 documents. In Ext.A1 Thalavariyola it is specifically stated that the foreman of the chitty is the PVC chit Funds( Branch) 29/B Patel Nagar 1 Morh, Gandhi Nagar, Jammu Tawi having its registered Head Office at Vicotory Buildings Kottayam-2 Kerala State. Relying on Ext.A1 Thalavariyola the trial court found no merit in the contentions advanced by the defendants. The contentions of the defendants that the Chitty is not registered as per the provisions of the Kerala Chitties Act 1975, that the alleged transaction is void and opposed to public policy and the same is hit by Section 23 of the Indian Contract Act were also considered in detail by the trial court. After a careful consideration of the entire evidence, facts and materials the trial court held that the plaintiff is entitled to realise the suit amount from the defendants . R.S.A 1304 of 2008 -4- In appeal the lower appellate court re-appreciated the evidence and re-analysed the facts and materials in detail and held that the contentions raised by the defendants in the suit cannot stand. The lower appellate court found no reasons to take a different view in the matter, but reduced the rate of interest from18% to 12% till the date of filing of the appeal ,and the future interest at 6%. The learned counsel for the appellants/defendants has taken this Court's attention to all the relevant provisions of the Indian Partnership Act, Indian Contract Act, Evidence Act and the Code of Civil Procedure. I find no reason to interfere with the concurrent findings entered by the courts below The courts below rightly answered all the technical contentions raised by the defendants. I find no merit and no grounds in this appeal to invoke section 100 of the C.P.C . Accordingly this appeal is dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1304 of 2008 ---------------------------- JUDGMENT 28th May, 2009