IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 AS.No. 699 of 1994() -------------------- OS.7/1991 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S)PLAINTIFF: -------------- V.K.VIJAYAN, S/O. K.A.APPU MENON, PREVIOUSLY RESIDING IN SIVA VILAS, KOTTUVALLY, N. PARUR, NOW RESIDING IN KARUVATHU HOUSE, MANAKKULANGARA P.O. KODAKARA (VIA) TRICHUR DISTRICT. BY ADV. SRI.E.SUBRAMANI, N.R.CHANDRASEKHARAN RESPONDENT(S)/DEFENDANTS 1 TO 4: --------------- 1. S.K.SUNDARAN PILLAI, S/O. VELAYUDHAN PILLAI, SUB INSPECTOR OF POLICE, 'SU' BHAVAN, THOTTAKKATTUKARA, ALWAYE – 8. 2. V.K.AMMINI, W/O. S.K. SUNDARAN PILLAI, TEACHER, 'SU' BHAVAN, THOTTAKKATTUKARA, ALWAYE – 8. 3. N.K. KRISHNA PILLAI, S/O. NEELAKANDA PILLAI, KOTTARAPPATTU HOUSE, NEAR KATHAYEE COTTON MILLS ALWAYE. 4. V.K.CHANDRAKANTHI, W/O. N.K. KRISHNA PILLAI, KOTTARAPPATTU HOUSE, NEAR KATHAYEE COTTON MILLS ALWAYE. ADV. SRI.JAIJI ITTEN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. ------------------------ A.S.No.699 OF 1994 ------------------------ Dated this the 27th day of May , 2008 JUDGMENT The plaintiff in a suit for declaration and for settlement of accounts, which was dismissed by the Sub Court, North Paravur, is the appellant. The four defendants in the suit are the respondents. The parties will be referred to as they were before the trial court. The case of the plaintiff was that in 1975 he bought new stage carriage bus bearing registration No. KRF 939 and obtained registration certificate in his name. The second and fourth defendants are his sisters and the first and third defendants are their husbands respectively. On 17/10/1975 the respondents 1 to 4 jointly and severally promised to the appellant that they will act as agents of the appellant and operated the bus and collected the collections daily as agents of the plaintiff. Further, the case was that a contract of agency was entered between the plaintiff and the defendants on 17/10/1975. and the defendants had been operating the bus from 1975 to 1987 as agents of the appellant in the route Alwaye – Mattanchery. The A.S..No.699/1994 2 further case was that the defendants 1 to 4 accepted the employment of the above agency till 1/1/1998 and during this period they have collected all the income from the bus as agents of the appellant and that it is known that the daily income collected from the bus was deposited by the defendants in the name of the second defendant in her S.B.Account No.4011/9 with Canara Bank, Aluva. Thereafter, the defendants 1 to 4 handed over the bus to the plaintiff on 1/1/1998 terminating the contract of agency and that the defendants have not accounted for the income or paid the amounts due from them to the plaintiff on the contract of agency. The further case was that the plaintiff has been insisting upon them to account for the income and to pay the amounts. It was also averred that on 28/3/1989 the third defendant had executed a written agreement with the plaintiff so as to limit the liability under the contract of agency up to 1/1/1988 only. On that day 3rd defendant had handed over to the plaintiff an abstract of some portions of the account which is only a purported note of the accounts as to give rough idea of the amounts received by the defendants . According to the plaintiff, the amounts actually due from the defendants to A.S..No.699/1994 3 the plaintiff can be ascertained only after accounting by the defendants and hence the suit. 2. The defendants filed written statement contending inter alia that there was no such contract of agency between the plaintiff and the defendants. It was also contended that the defendants did not operate the bus from 1975 to 1987 as agents and that there is no contract of agency; that there was no agreement between the parties and that the defendants are not liable to account with the plaintiff. There was no transaction between the parties regarding the plying of the bus except that 1st defendant had given some financial assistance to the plaintiff to ply the vehicle. It was contended that the amount obtained by the first defendant was not fully repaid ; the third defendant, being a bus operator, was only helping the plaintiff to ply the vehicle, that the alleged agreement dated 28/3/1989 given by the 3rd defendant is only a letter and under that letter there is no liability upon the 3rd defendant and that the defendants are not liable for any amount to the plaintiff. It was also contended that the suit was barred by limitation and was bad for misjoinder of cause of action. A.S..No.699/1994 4 3. On the above pleadings, the learned Subordinate Judge formulated the following seven issues for trial; 1. Is the suit not maintainable ? 2. Is the suit barred by limitation ? 3. Whether the defendants have acted as agents of the plaintiff as alleged. If so, whether it was terminated ? 4. Whether the defendants have ever been operating the bus of the plaintiff and collected the income ? 5. Whether the declaration prayed for is allowable ? 6. Is the plaintiff entitled to recover the amount ? 7. Reliefs and Costs. 4. Evidence on trial consisted of oral testimony of Pws 1 and 2 and Exts.A1 to A10 on the side of the plaintiff. No counter evidence was adduced on the side of the defendants. Ext.A1 was the Photostat copy of the S.B. Passbook in the name of Smt.V.K.Ammini, the 2nd defendant. Exts.A2 to A5 were also photostat copies of S.B.Account passbook in the name of Smt.V.K.Ammini. Ext.A6 is carbon copy of an agreement dated 28/3/1989. Ext.A7 is a copy of abstracts of account. Exts.A7 (a) to © are also copies of abstract of accounts. Exts.A8 and A9 A.S..No.699/1994 5 are copies of letter sent by Sri.Vijayan and Ext.A10 is copy of the lawyer notice dated 22/12/1990. 5. The learned Subordinate Judge considered issue Nos 1 and 2 together and held that the suit has been instituted within the period of limitation. Issue Nos. 3 to 5 were also considered by the learned Subordinate Judge together. On an evaluation of the evidence, the learned Subordinate Judge would hold that the evidence including the document of evidence adduced on the side of the plaintiff will not help the plaintiff in establishing that there was an arrangement of agency between the plaintiff and the defendants and that the defendants were plying the plaintiff's vehicle on behalf of the plaintiff. It was also found on the evidence that PW1 the plaintiff, was accounting income to the Incometax Authorities on being convinced about the correctness of the accounts and that he himself was managing the affairs of the vehicle. Accordingly, all these issues were answered against the plaintiff and the suit was dismissed. 6. Very extensive submissions were addressed before me by Sri.N.R.Chandrasekharan learned counsel for the appellant and Sri.Jaiji Itten, learned counsel for the respondents. My A.S..No.699/1994 6 attention was drawn by Sri.Chandrasekharan to the pleadings in the case. I was taken through the testimony of PWs1 and 2 and to the documentary evidence especially Exts.A6, A7, A7(a) to (c) and A8 and A10. Sri.Chandrasekharan would argue that the conclusion of the the learned Subordinate Judge that the evidence tendered by PW1 would establish that PW1 was accounting income to the Income tax Authorities after being convinced about the accounts and that PW1 was managing the affairs of the vehicle is the result of misreading of the evidence. According to him, Exts.A6 and A7 series will prove the plaint claim. He submitted that A6 and A7 series are admitted documents and their genuineness is not disputed by any of the defendants either in the written statement or through I.A.No. 1988/1999 which was filed by the plaintiff. Ext.A7 series are not subjected to cross examination. In Ext.A6 it is admitted by the 3rd defendant that the bus was running under the management of the 3rd defendant and thus it was evident that the appellant was not managing the bus. It is for the period of management covered by Ext.A6 that the 3rd defendant prepared Ext.A7 series of accounts including Ext.A7, A7(a), Ext.A(b) are A.S..No.699/1994 7 prepared under his own handwriting. These documents will show that all the respondents are regularly receiving and misappropriating the income from the bus during the period from 1975 – 1987 as claimed in the suit. The learned counsel submitted that the learned Subordinate Judge went wrong in drawing adverse inferences against the defendants for their non production of the documents made mention of in I.A.1998/91. The appreciation of the evidence by the learned Subordinate Judge was totally irregular and this has resulted in serious prejudice to the appellant, so submitted by Sri.Chandrasekharan. 7. All the submissions of Sri.Chandrasekharan were refuted by Sri.Jaijji Itten. I have considered the submissions and I have gone through the evidence available in th case. I have also gone through the judgment of the learned Subordinate Judge. I do not find any warrant for interfering with the impugned judgment and decree. The findings entered by the learned subordinate Judge on the various issues formulated for trial are founded on the evidence which is actually available in the case. The burden of proof being what it is, I am in agreement with the learned Subordinate Judge that the evidence A.S..No.699/1994 8 adduced by the plaintiff is quite inadequate for proving the facts in issue. There is no warrant at all for interfering with the impugned judgment. At the same time, I am of th view that the learned Sub Judge did not exercise discretion properly while deciding to dismiss the suit with costs. According to me, the circumstances in this case and the close relationship between the parties would afford enough justification for a direction that the parties suffer their costs in the suit as well as in the appeal. Accordingly, the above discussion will lead the appeal to the following respect; The appeal is dismissed confirming the negative decree passed by the court below. However, parties are directed to suffer their costs throughout. PIUS.C.KURIAKOSE,JUDGE dpk