IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 RSA.No. 347 of 2009() --------------------- AS.117/2006 of III ADDL.SUB COURT, KOZHIKODE OS.703/2003 of PRINCIPAL MUNSIFF COURT - I, KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS. --------------------------------------------------- 1. MALLIKA, AGED 50 YEARS, W/O. LATE PREMADATHAN, PUTHIYA VEEDU HOUSE, CHOMBALA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE. 2. POORNIMA, AGED 28 YEARS, D/O. LATE PREMADATHAN, PUTHIYA VEEDU HOUSE, CHOMBALA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE. 3. RAMKIRAN, AGED 26 YEARS, S/O. LATE PREMADATHAN, PUTHIYA VEEDU HOUSE, CHOMBALA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE. 4. KRISHNA SARAN, AGED 24 YEARS, S/O. LATE PREMADATHAN, PUTHIYA VEEDU HOUSE, CHOMBALA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE. BY ADV. SRI.VINOD SINGH CHERIYAN ADV.SHRI SUDHISH R. RESPONDENT(S): RESPONDENT/PLAINTIFF. ------------------------------------ ACE AUTOMOBILES PVT. LTD., REP. BY ITS MANAGING DIRECTOR, KRISHNANAND KAMATH, S/O. LEELADHAR KAMATH, KACHERY AMSOM AND DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.347 of 2009 -------------------------------------- Dated this the 14th day of September, 2009. JUDGMENT Defendants in O.S.No.703 of 2003 of the court of learned Principal Munsiff-I, Kozhikode are the appellants before me. They challenge the concurrent findings entered by the courts below that their predecessor-in- interest, late Shri V.V.Premadathan owed to the respondent Rs.17,993.30 and the decree for recovery of the amount. 2. Short facts are: Respondent is a private limited company. It filed the suit claiming that Premadathan, predecessor-in-interest of the appellants entrusted a vehicle with it for repair and for the purpose of repair, respondent incurred Rs.37,993.30. Premadathan issued cheque dated 10.11.2001 for the said amount but it was returned for insufficiency of funds. Later Premadathan paid Rs.20,000/- to respondent. For the balance amount, respondent issued notice dated 6.12.2001. Inspite of notice balance amount was not paid. In the meantime Premadathan died and hence the suit impleading legal representatives of the said Premadathan. Appellants contended that they are not legal representatives of Premadathan in the sense that they have not inherited any property from the said Premadathan. They claimed that Premadathan was running a gas agency by name 'United Gas Company' which had been closed. They denied that Premadathan had issued any cheque as RSA No.347/2009 2 claimed by the respondent. They also denied that there was notice to the said Premadathan as pleaded by the respondent. In the trial court, director of respondent gave evidence as PW1 and proved Exts.A1 to A6 series. First appellant gave evidence as DW1 and proved Exts.B1 and B2. Trial court found that the sum of Rs.17,933.30 is due from the estate of deceased Premadathan to the respondent and accordingly a decree was passed. Appellate court concurred with that finding. In this Second Appeal, the substantial questions of law attempted to be raised are: i. Whether one of the directors of the respondent company had authority to file suit on behalf of the company in the absence of a resolution? ii. Whether statement of accounts which is not properly verified in accordance with Section 65B of the Evidence Act can be accepted in evidence? iii. Whether the decree in favour of respondent when the appellants specifically claimed that they are not legal representatives is valid? 3. So far as question of authority to file suit is concerned, Ext.A5 which the memorandum of articles of association of respondent revealed that PW1 is one of the directors. Order 29 Rule 1 of the Code of Civil Procedure (for short' “the Code”) enables a director of the company to file the suit even without an authorisation. The director who has signed the plaint has given evidence as PW1 and spoke to the case which revealed that he is aware of the case and was RSA No.347/2009 3 capable of giving evidence. That satisfies the requirement of Order 29 Rule 1 of the Code. (Though trial court wrongly refers to Order 30 of the Code, it is Order 29 Rule 1 of the Code which apply to the facts of the case). 4. So far as acceptability of Ext.A6 series is concerned, under Section 65B of the Evidence Act a certification is required regarding accuracy of computerised statement. Going by the judgments under challenge it is not shown that Ext.A6 series are not in any way unacceptable or not accurate. Ext.A1 is the cheque dated 10.11.2001 for Rs.37,993/- which according to respondent, was issued by late Premadathan. Appellants were not able to show that cheque was not issued the said Premadathan. Signature in Ext.A1 is not disputed by the appellants. It is not disputed that Ext.A1 is drawn on the account maintained by late Premadathan. Ext.A2 shows that the cheque was dishonoured for insufficiency of funds. In other words drawee bank did not find any dissimilarity in the signature of the executant in Ext.A1 with the signature of the account holder. Ext.A4 series show that notice of dishonour was given to late Premadathan. PW1 also has given evidence regarding the transaction. Thus the plaint claim is proved by evidence on record. 5. Yet another question raised in this Second Appeal is that without deciding whether appellants have inherited any property from Premadathan a decree could not have been passed as if appellants are legal representatives. It is not disputed that appellants are legal heirs of Premadathan. It is seen from the judgment and decree of the trial court that the decree is only for realisation RSA No.347/2009 4 of the amount from the estate of deceased Premadathan if any inherited by the appellants. Question whether there is any property inherited by the appellants from the late Premadathan to be proceeded against for realisation of the amount is a matter to be decided in the execution. On going through the judgments under challenge and hearing learned counsel I am satisfied that no substantial question of law is involved. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks