IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 AS.No. 246 of 1997(C) --------------------- OS.622/1991 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): PETITIONERS -------------- 1. E.A.JOHNY, AGED 46 YEARS BUSINESS, S/O IMMATTY ANTONY KUTTUR VILLAGE & DESOM THRISSUR TALUK 2. ELSY JOHNY, AGED 36 YEARS W/O IMMATTY JOHNY KUTTUR VILLAGE & DESOM THRISSUR TALUK BY ADV. SRI.P.N.MAHESH RESPONDENT(S): RESPONDENT --------------- KERALA VIJAYA LOANS & CHITTIES PVT. LTD., THRISSUR TOWN THRISSUR VILLAGE & TALUK ADV. SRI.N.J.JOHNSON SRI.SAM ZACHARIAS D.THARAYIL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON 6/11/2009 DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.246 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2009 JUDGMENT Challenge in this appeal by defendants 2 and 3 is to the judgment and decree of Munsiff, Thrissur in O.S.No.622/1991 dated 28/08/11995 decreeing the suit for recovery of the amount due to the plaintiff from defendants. 2. The case of the respondent/plaintiff as detailed in the plaint and as testified by PW1, one of the Board of Directors of plaintiff company in brief was this : The plaintiff is a Private Limited Company engaged in Kuri business. The late first defendant is the mother and third defendant is the wife of second defendant. The first defendant subscribed for a kuri under statement 47 and 48 started on 4/3/1983 from the Bangalore Branch of the company. The first defendant prized the ticket on 4/3/1988. Defendants 1 to 3 jointly executed Ext.A9 Kuri Security Bond agreeing to repay the prize amount in instalments. At the time of executing Ext.A9, the defendants agreed to offer as security an amount AS.No.246/1997 Page numbers of Rs. 15,000/- in deposit with the Chalakudy Branch of Union Bank of India, but defendant never offered that amount. At that time, second defendant was the Manager of plaintiff company. Defendants paid instalments upto 4/9/1988 and defaulted payment from 12th instalment. Amount due from 13th instalment upto termination of Kuri comes to Rs. 36,000/-. In spite of repeated demands and notice issued, the defendants did not repay the amount. Hence the suit. 3. Defendants resisted the suit raising following contentions : The plaintiff company is not an incorporated one. The lower court has no jurisdiction to try the suit. The kuri in question is against the Indian Chitty Fund Act. Mr.Antony Maliyekkal who initiated the case is incompetent to represent the plaintiff company. Rs. 15,000/- was withdrawn by the plaintiff company. The defendants subscribed for six monthly kuries and paid Rs. 90,000/-. That amount has to be given credit to by the company. The prize amount was not paid to the defendants. Therefore, the suit has to be dismissed. 4. PWs 1 and 2 were examined and Ext.A1 to A20 were marked on the side of plaintiff. DW1 was examined and Exts.B1 to B7 were marked by defendants. On an appreciation of evidence, the AS.No.246/1997 Page numbers learned Munsiff decreed the suit as prayed for. Defendants 2 and 3 have challenged the said decree and judgment. 5. The following points arise for consideration : 1) Whether the decree and judgment of lower court can be sustained ? 2) Whether any amount is due to the plaintiff company from defendants. Points 1 and 2 6. Defendants raised several contentions in the suit. In this appeal also, defendants 2 and 3 as appellants raised the same contentions. The first contention of the appellants is that the plaintiff company is not an incorporated one. But Ext.A1, the copy of Registration certificate and Ext.A6 the Memorandum of Association and Articles of Association show that plaintiff company was incorporated as Company No. 2523/73. Therefore, the learned Munsiff has rightly rejected the above contention of the defendants. 7. It was next submitted by the counsel for appellants that as the Kuri was started from the Bangalore Branch of the company , the lower court has no jurisdiction to try the suit. But the entire transaction AS.No.246/1997 Page numbers took place at Thrissur. Ext.A9 Kuri Security Bond was executed at Thrissur. Further defendants are residing at Thrissur. Therefore, I reject the above contention of defendants and confirm the findings of lower court that lower court has jurisdiction to try the suit. 8. A ground is raised in this appeal memorandum and also before the lower court that Dr.Antony J.Maliyekkal who has initiated action against the defendants and signed in the plaint for the company had no sufficient shares in the company to become a Board of Director and that therefore he is not competent to represent the company. The above contention is not pressed in this appeal. 9. The next question for consideration is what is the correct amount due to the plaintiff. Ext.A9 is the Kuri Security Bond executed by defendants . Ext.A8 is the cash receipt memo executed by first defendant for Rs. 60,000/- on 14/03/1988. The genuineness of Exts.A8 and A9 are not challenged by the cross examination of PW1. The evidence of PW1 is supported by Ext.A14 Kuri Pass book. That apart, to the notice Ext.A10, the plaintiffs did not send any reply. None of the witnesses were examined to show that any portion of plaint claim was discharged. AS.No.246/1997 Page numbers 10. Appellants/defendants 2 and 3 contended that Rs. 15,000/- offered as security by them as F.D. in the Chalakudy Branch of Union Bank of India was withdrawn by the plaintiff company which has to be adjusted towards plaint claim. But admittedly first defendant filed O.S.No.1006/1991 before Sub Court, Thrissur restraining the plaintiff company by a permanent injunction from adjusting the said amount towards the plaint claim in this suit. Ext.B3 is the copy of plaint in the suit. It is admitted by PW1 that said amount in F.D. was withdrawn by the company. But in view of Ext.B3 suit the said amount cannot be adjusted towards the plaint claim. Therefore the above contention of defendants has to be rejected. The finding of lower court in this point is confirmed. In view of my above findings, confirming the decree and judgment of the lower court, this appeal has to be dismissed with costs. In the result, the appeal is dismissed with costs. P.Q.BARKATH ALI JUDGE sv. AS.No.246/1997 Page numbers