IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.727 of 2009 1.Beyatrees Antony 2.Sonia ... Appellants/Respondents 2 & 3 (Defendants 4 & 5) vs. 1.A.K.Mani 2.Prasad Colour Laboratory, 3.Mrs.T.C.Rosy 4.Santhosh 5.M/s.Ruby ... Respondents/Appellant & Respondents 1, 4 to 6 (Plaintiff and Defendants 3, 6 to 8) This second appeal is filed against the judgement and decree dated 18.2.2009 in AS.199/08, passed by the VI Additional Judge, City Civil Court, Chennai, reversing the judgement and decree dated 14.8.2007 passed by the XI Asst Judge, City Civil Court, Chennai (in-charge) of XVII Asst City Civil Court, Chennai in O.S.No.459 of 2002. For Appellants : M/s.Ashok Menon For Respondents : M/s.Auxillapeter for R1 R2 to R5 - given up JUDGMENT This second appeal is filed by the LRs of D2, inveighing the judgement and decree dated 18.2.2009 passed by the VI Additional Judge, City Civil Court, Chennai, reversing the judgement and decree dated 14.8.2007 passed by the XVII Asst.City Civil Court, Chennai (in-charge) in O.S.No.459 of 2002, which was filed for recovery of money and for permanent injunction. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 3. The factual matrix, as stood exposited from the records, would run thus: (a) The first respondent herein, as plaintiff, filed the suit seeking the following reliefs: "i) to pass a judgement and decree directing the defendants 1 and 2 to pay the plaintiff jointly and severally the sum of Rs.1,20,117/- together with subsequent interest @ 24% per annum on Rs.75,000/-. ii) permanent injunction, restraining the defendants, from distributing, exhibiting or anyone claiming under them from in any way releasing or causing the release of the Malayalam dubbed picture titled PAATHIKALAI THEDI (dubbed version from the original KANNADA picture PAVITHRAPAPI) either in Kerala State or anywhere else, without settling the plaintiff's claim as mentioned in clause (i) supra; (iii) directing the defendants 1 and 2 to pay the cost of this suit." (extracted as such) (b) The defendants resisted the suit by filing written statement. (c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 and marked Exs.A1 to A5. On the defendants' side, no one was examined and no document was filed. Exs.C1 to C3 were marked as Court documents. (d) Ultimately the trial Court decreed partly the suit as against the LRs of D1, as D1 died pendente lite, and the suit as against D2 was dismissed in toto. (d) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed by the plaintiff. Whereupon, after hearing both sides, the first appellate Court modified the judgement and decree of the trial Court and decreed the original suit in toto as prayed for, directing the LRs of D1 and D2 to pay jointly and severally, the sum of Rs.1,20,117/- together with interest @ 24% on Rs.75,000/- from the date of plaint i.e. 11.7.1986 till the date of realisation and further directing the property offered by the third party Ramesh to continue till the discharge of the decree debt. (e) Now the LRs of D2 filed this second appeal challenging and impugning the judgement and decree of the first appellate Court as against them only on the main ground that when there was no privity of contract between D2 and the plaintiff, the first appellate Court was not justified in reversing the reasoned finding of the trial Court in exonerating D2 from the suit liability. https://hcservices.ecourts.gov.in/hcservices/ 4. The following substantial questions of law are found suggested in the memorandum of grounds of second appeal: "i) Whether the learned lower appellate Court Judge did not err in overlooking that the burden of proving that Kaduvakkulam Antony had borrowed monies from the plaintiff along with Anthikad Mani was squarely that of the 1st respondent/plaintiff. ii)Whether the learned lower appellate Court Judge did not err in overlooking Sections 101, 102, 103 and 104 of the Indian Evidence Act? iii) Whether the learned lower appellate Court Judge erred in allowed the appeal merely because no oral evidence had been let in on the side of the appellant herein even though no evidence, either oral or documentary, had been let in by the 1st respondent/plaintiff to prove that late Kaduvakkulam Antony had jointly borrowed monies from him along with Anthikad Mani? iv) Whether the learned lower appellate Court Judge erred in overlooking that not a single document had been filed by the 1st respondent/plaintiff herein indicating that Kaduvakkulam Antony had borrowed monies from him and also that in all the documents filed by the 1st respondent/plaintiff before the lower Court only the name of late Anthikad Mani had figured and the name of late Kaduvakkulam Antony did not appear. v) Whether the learned lower appellate Court Judge erred in not holding that the appellants herein were liable to pay only to the extent of the portion of the estate of deceased Kaduvakkulam Antony that had come into their hands and nothing more than that." 5. On hearing both sides, I am of the view that the following substantial question of law would arise for consideration: "Whether the first appellate Court for the reasons set out in the judgement was justified in reversing the finding of the trial Court in exonerating the D2 from his liability to pay the suit amount in favour of the plaintiff and that too ignoring the finding of the trial Court that there was no privity of contract between the plaintiff and D2? 6. Heard both sides further on the above substantial question of law. 7. The learned counsel for the appellants/LRs of D2 would submit that in the absence of an express contract between the plaintiff and D2 relating to payment of amount, the appellate Court was not justified in mulcting the LRs of D2 with the liability to https://hcservices.ecourts.gov.in/hcservices/ pay the suit amount and also damages. 8. Whereas, the learned counsel for the first respondent/plaintiff would submit that the over all circumstances were taken into consideration by the first appellate Court and thereupon disagreed with the trial Court's judgement in exonerating D2 from the liability, warranting no interference in second appeal by this Court. 9. At this juncture, I recollect and call up the following maxim: 'Ubi jus, ibi remedium' – Where there is a right, there is a remedy. 10. The above maxim clearly exemplifies and demonstrates that if at all there is any right on the part of the plaintiff as against a particular defendant to enforce a right, then the Court has to enforce it. 11. Here, axiomatically and obviously, a mere perusal of Ex.A1-the agreement dated 26.5.1985 would project and portray that absolutely there was no undertaking on the part of D2 to pay the suit amount or pay any money in favour of the plaintiff. Ex.A1 emerged only between the plaintiff and D1. In such a case, the trial Court in its judgement adverted to the above said fact and exonerated the D2 from the liability of paying the suit amount. 12. On the other hand, the appellate Court, after narrating in extenso the case of both sides and also the grounds of appeal, simply, without any plausible reason disagreed with the findings of the trial Court in exonerating D2. The first appellate Court spent several pages narrating as to what transpired during the pendency of the suit, but those discussions are relevant for holding that the surety furnished by Ramesh shall subsist till the discharge of D1 and his L.Rs liability to pay the decreetal dues. 13. I am at a loss to understand as to how the first appellate Court mulcted D2's LRs to pay the suit amount when there was no privity of contract between the plaintiff and D2 relating to payment of money. Hence, the judgement of the first appellate Court in fastening D2's LRs with liability to pay the suit amount with damages, is fraught with perversity and illegality, warranting interference in second appeal and accordingly, that much portion of the judgement and decree of the first appellate Court is set aside. Accordingly, the aforesaid substantial question of law is answered. 14. I make it clear that the rest of the judgement and decree of the first appellate Court shall hold good, as no one advanced any arguement as against the other findings of the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/ 15. During the pendency of this second appeal, my learned predecessor passed the order in M.P.Nos.1 and 2 of 2009 dated 21.8.2009, the operative portion of which would run thus: '12. Admittedly, the said Ramesh was not a defendant or a judgment-debtor. On account of safeguarding the interest of the firm, in which he was a partner, the third party furnished the security of his immovable properties and therefore, his liability would not be more than the decree amount with subsequent interest and costs. It is not in dispute that the first respondent/decree-holder is taking steps to bring the property belongs to the third party for sale, in order to realise the decree amount. Hence, in the interest of justice, I am of view to accept the plea in favour of the said third party, since he is ready and willing to deposit the entire decree amount with interest and costs in trial court, for which, there could be no legal grievance for the first respondent/decree- holder in accepting the same. The amount so deposited be invested in a Nationalised Bank, so as to fetch interest and the same may be withdrawn by the party, as per the judgement in the second appeal. 13. In the result, M.P.No.2 of 2009 is ordered for return of documents that were entrusted by Sri.V.K.Ramesh, third party to the suit as security for the decree amount on his depositing the entire decree amount with interest and costs on or before 4.9.2009. The first respondent/decree holder is entitled to withdraw only the amount relating to the costs. The balance amount shall be invested in the Indian Bank, High Court Branch, Chennai for one year. The deposited amount along with the accrued interest shall be disbursed on the disposal of the second appeal. 14. On compliance of the conditional order, both the miscellaneous petitions will be allowed and the interim stay already granted will be made absolute. In case, if the conditional order is not complied with, the petitions shall stand dismissed with costs and the first respondent/decree-holder will be at liberty to proceed with the E.P. The petitions are ordered accordingly." 16. Accordingly, the said Ramesh, after depositing the decree amount with interest and costs, by way of securing the recovery of the decreetal amount, took back the documents. 17. The learned counsel for the appellants/LRs of D2 would raise a doubt as to whether Ramesh could take away the amount, deposited by way of security as per the order of this Court dated 21.8.2009. Whereas, the learned counsel for the first respondent/plaintiff would appropriately point out that the very https://hcservices.ecourts.gov.in/hcservices/ purpose of having ordered the said Ramesh to deposit the said amount as security is to see that the plaintiff could recover that amount towards satisfaction of the decree passed. 18. The learned counsel for the appellants also on behalf of V.K.Ramesh argued the matter and obtained earlier interim order from this Court, on 21.8.2009. According to the learned counsel for the appellants, the D1 and his legal heirs had no right over the said film 'PAATHIKALAI THEDI' and in such a case for the liability of D1 and his legal heirs, the said film could not have been attached and simply because 3rd party-Ramesh furnished security for getting the film released, he cannot be mulcted with the liability to discharge the decree debt. 19. Undoubtedly, the trial Court fell into error in holding as though there was no evidence to show that D1 had any right over the said film and hence, the said Ramesh cannot be held liable is totally against law. 20. In the facts and circumstances of this case, the Court is not expected to find out as to whether D1 had any right over the film or not. Voluntarily the said Ramesh furnished security for the purpose of getting the film released, which was earlier attached by this Court. In such a case, the duty of that surety is to honour his responsibility and liability. Had the said Ramesh filed any application at the earliest point of time for vacating the attachment or raising the attachment or varying the order of attachment on the ground that D1 who entered into such agreement with the plaintiff had no right at all over the movie, then the matter would have been decided in one way or other, as against which, the right of appeal also would have been available for the aggrieved party and in the meantime, the plaintiff also would have planned for attaching some other property. 21. The plaintiff admittedly got attachment order and only on the furnishing of the security by the said Ramesh, the film also was released. At that point of time there was no bifurcation of the liability of D1, D2 etc. Hence, it is too late in the day on the part of Ramesh or D2 to argue that since D2 was exonerated from the suit, security furnished by Ramesh also should be released once and for all. 22. There is nothing to indicate that such security was furnished only on behalf of D2, so as to exonerate D2 from the liability to furnish security and if that be so, an arguement would be maintainable to the effect that since D2 was exonerated from his liability, Ramesh also should be exonerated from his liability. But the security was furnished by Ramesh for the suit claim and based on that alone, the attachment concerning that film was released. As such, in this view of the matter, it is clear that at https://hcservices.ecourts.gov.in/hcservices/ this distant point of time neither D2 nor Ramesh could be heard to contend that the security furnished by Ramesh for the suit amount cannot be made use of by the plaintiff in the process of recovering the decreetal dues of D1 and his legal heirs. 23. The first appellate Court was right in its finding to the extent that the liability of V.K.Ramesh as a person who furnished the security for the suit claim shall remain in force. 24. I would like to uphold the submission of the learned counsel for the first respondent/plaintiff and order that for the purpose of recovering the decree debt, as confirmed by the first appellate Court as against D1, the amount deposited in the Court by Ramesh, as per the order of this Court dated 21.8.2009 in C.M.P.Nos.1 and 2 of 2009, could be proceeded against, by the plaintiff. 25. In the result, the second appeal is allowed to the aforesaid extent. However, there is no order as to costs. Msk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The VI Additional Judge, City Civil Court, Chennai 2. The XI Asst Judge, City Civil Court, Chennai i/c of the XVII Asst.City Civil Court, Chennai + 2 ccs to M/s. Ashok Menon, Advocate SR No.7294 + 1 cc to M/s. Auxilia Peter, Advocate SR No.8274 PKB(CO) SR/24.2.2011 S.A.No.727 of 2009 https://hcservices.ecourts.gov.in/hcservices/