IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 RSA.No. 906 of 2009() --------------------- AS.233/2006 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.384/1999 of ADDL.SUB COURT,NORTH PARAVUR .................... APPELLANTS/APPELLANTS/DEFENDANTS 2 & 3 ---------------------------------------------------------- 1. KENADY, S/O.POULOSE, AGED 42, MULLAKKATTUPARAMBIL, KUZHOOR DESOM, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. 2. MARY, AGED 68, W/O.POULOSE, DO. DO. DO. BY ADV. SRI.V.G.SANKARAN RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDATNS 4 TO 6 --------------------------------------------------------- 1. POULOSE, AGED 45, S/O.KURIAKOSE, MALIYEKKAL, MOONAMPARAMB DESOM, MOOKKANNOOR VILLAGE, ALUK TALUK. 2. PAULSON, AGED 41, S/O.POULOSE, MULLAKKATTUPARAMBIL, KUZHOOR DESOM, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. 3. BABU, AGED 39, S/O.POULOSE, MULLAKKATTUPARAMBIL, KUZHOOR DESOM, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. 4. MINI, AGED 37, D/O.POULOSE, DO. DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.906 of 2009 -------------------------------------- Dated this the 29th day of October, 2009. JUDGMENT Second Appeal arises from judgment and decree of learned Additional District Judge, North Paravur in A.S. No.233 of 2006 confirming judgment and decree of learned Additional Sub Judge, North Paravur in O.S.No.384 of 1999 granting decree in favour of the plaintiff. Appeal is at the instance of defendant Nos.2 and 3. Following question is urged as substantial question of law: Whether on the frame of the suit plaintiff could have sustained the suit and obtained a decree for realization of money in his favour? Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Defendant No.1 died pending the appeal and his legal representatives are impleaded as supplemental defendants. Defendant No.2 is a vendor in marble. According to the plaintiff, on 14.1.1999 defendant No.2 entered into a contract with one Jose agreeing to supply 4050 sq. ft. of marble at the rate of Rs.50/- per feet. The agreement was to supply marble at the work site of the said Jose. Plaintiff was the mediator and signatory in the agreement executed between Jose and defendant No.2. Plaintiff had a contract with the said Jose for the purpose of laying marble. Jose gave Rs.1,30,000/- to defendant No.2 on the date of agreement and the latter issued a cheque as RSA No.906 of 2009 2 security to the said Jose. Though Jose gave Rs.1,30,000/- to defendant No.2, in the agreement that was executed the amount covered by the cheque was wrongly stated as Rs.1,50,000/-. Marble supplied by defendant No.2 was of low quality. Defendant Nos.1 and 2 approached the said Jose to settle the issue. In the mediation plaintiff also took part. Defendant Nos.1 and 2 agreed to take back the marble already unloaded at the work site and return the advance amount within fortyfive days. An agreement was executed to that effect. The agreement stipulated that defendant Nos.1 and 2 will be liable to pay the amount with interest. The agreement further stipulated that since Jose was going abroad, plaintiff could initiate action on behalf of the said Jose. On 3.6.1999 defendant Nos.1 and 2 paid Rs.30,000/- to the plaintiff. For the balance amount notice was issued to defendant No.2. Since the balance amount was not paid, plaintiff filed the suit. Defendants admitted the agreement and stated that defendant No.2 had taken advance of Rs.1,30,000/- from Jose but denied that he had supplied low quality marble. There was no breach of contract on his part. Defendant No.2 had to spent Rs.50,000/- towards transportation charges. Agreement relied on by the plaintiff is obtained by coercion. Defendant Nos.1 and 2 admitted receipt of Rs.1,30,000/- as advance at the time of execution of agreement and claimed that defendant No.2 paid Rs.30,000/- to the plaintiff on 3.6.1999. Plaintiff produced Exts.A1 to A4 and gave evidence as PW1. Defendant No.2 gave evidence as DW1 and proved Ext.B1, cash receipt dated 3.6.1999. Learned Munsiff found that plaintiff is entitled to realize the balance sum of Rupees one lakh with interest and granted decree accordingly allowing RSA No.906 of 2009 3 plaintiff to realize the said amount from the defendants. First appellate court confirmed the judgment and decree. It is contended by learned counsel that there is no privity of contract between defendant No.2 and the plaintiff and hence plaintiff could not have on his own laid the suit seeking decree for realization of the amount. It is also contended by learned counsel that in view of Section 230 of the Indian Contract Act (for short, “the Act”) plaintiff as the agent of the said Jose could not personally enforce the contract entered into by him on behalf of the principal. 3. No doubt, suit is filed by one Poulose while the transaction and the agreement were between defendant Nos.1 and 2 and Jose. The relief claimed in the plaint is in favour of the plaintiff, Poulose. What the learned counsel argued is that Poulose has no right to file a suit as his own, he could have filed a suit on behalf of and representing the said Jose who had contract with defendant Nos.1 and 2. It is in the above circumstance that learned counsel placed reliance on Section 230 of the Act. I stated that in the plaint the person who figures as plaintiff is Poulose. But I find from the averments in paragraph No.9 that the said Jose who is a party to the agreement is abroad and that in the agreement dated 2.2.1999 (Ext.A2) plaintiff has been authorized to do whatever required on behalf of the said Jose (in connection with the transaction and agreement). A reading of the plaint as a whole would show that though Poulose figures as the plaintiff, he i s not claiming any right for himself but is only enforcing the claim of Jose though, it is not stated in so many words. I do not forget that the more proper way of drafting the plaint would have been to RSA No.906 of 2009 4 describe Jose as the plaintiff represented by Poulose as his agent. It is not disputed that plaintiff is also a signatory in Ext.A2 and it is stated therein that plaintiff is authorized to do whatever is required to be done on behalf of Jose. Defendant Nos.1 and 2 are also parties in Ext.A2. Reading of Ext.A2 and the plaint as a whole, it leads me to the conclusion that this is not a case where plaintiff is enforcing any personal claim but, suing on behalf of Jose though, cause title does not properly describe the plaintiff. That need only be understood as an inartistic drafting of the plaint which cannot affect the substratum of the case pleaded by the plaintiff. So much so the question of invoking Section 230 of the Act does not arise. In holding so I also bear in mind that it is not disputed that the sum of Rs.30,000/- was paid by defendant No.2 to the plaintiff as per Ext.B1, receipt dated 3.6.1999, necessarily a payment made on behalf of Jose. A further fact to be borne in mind is that the sum of Rs.48,500/- realized by the sale of marble was deposited by the advocate commissioner in court and, with the consent of the defendants that amount was allowed to be withdrawn by the plaintiff, certainly on behalf of Jose. In the circumstances, I am satisfied that the claim laid is on behalf of Jose. 4. Apprehension raised by learned counsel for defendants is that in the manner the suit is framed and decree is passed payment of the decree amount may not discharge liability of the defendants to the said Jose. That apprehension in my view has no basis since I have stated from the pleadings and the relevant documents that the suit has been brought on behalf of said Jose and hence payment of the decree amount should be treated as a payment RSA No.906 of 2009 5 on behalf of Jose. At any rate, it is open to the executing court to consider whether before plaintiff is permitted to withdraw the amount if any deposited by the defendants he should be directed to produce a power of attorney or such other relevant document authorizing him to withdraw the amount on behalf of the said Jose. 5. On hearing learned counsel and going through the judgments and decrees under challenge I do not find any substantial question of law requiring admission and issue of notice to the respondents. The Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks