IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 AS.No. 459 of 1998() -------------------- OS.704/1993 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANTS -------------- 1. THE SUB POSTMASTER (LSG) KOZHINJAMPARA POST PALAKKAD 678 555 2. THE SR.SUPERINTENDENT OF POST OFFICES, PALAKKAD DISTRICT 3. THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, TRIVANDRUM 4. THE DIRECTOR GENERAL (P.C) DEPARTMENT OF POSTS NEW DELHI - 110 001 BY ADV. SRI.BENNY GERVACIS SRI.P.J.PHILIP, C.G.C RESPONDENT(S): PLAINTIFF --------------- RAJAPPAN, S/O CHELLAN, AGED 51 YEARS RESIDING AT RABBIC QUARTERS KARAMPOTTA, KOZHINJAMPARA VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT ADV. SRI.JOHN BRITTO SRI.T.G.VARGHESE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.459 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2009 JUDGMENT The appellants are the defendants in O.S.No.704/1993 on the file of Subordinate Judge's Court, Palakkad who challenge the judgment and decree of the lower court dated 30th September 1997 declaring that the respondent/plaintiff is the title holder of eight Indira Vikas Pathras amounting to face value of Rs. 20,000/- mentioned in the plaint. 2. The case of the respondent/plaintiff as stated in the plaint and as testified by him as PW1 before the lower court in brief is this : The plaintiff is a school teacher employed at Kozhinjampara Government Upper Primary School. He purchased eight Indira Vikas Pathras ( number of which were mentioned in the plaint) amounting to face value of Rs.20,000/- and maturity value of Rs. 40,000/- from the first appellant/first defendant who is the Sub Post Master (L.S.G.), Kozhinjampara Post, Palakkad. In April 1990, those Indira Vikas Pathras were stolen from his house which was reported to the AS.No.459/1998 2 Kozhinjampara police station. Crime No.92/1990 was registered by the said police station. Ext.A1 is the copy of the said FIR. On 9/5/1990 itself, the matter was informed to first appellant - the first defendant and the second appellant - the second defendant ( The Superintendent of Post Offices, Palakkad District). They replied that they do not maintain the record of the names of purchasers nor the numbers of Vikas Pathras. The respondent/plaintiff prayed for a decree declaring that the said Indira Vikas Pathras belong to respondent/plaintiff and for a prohibitory injunction restraining appellants/defendants from disbursing the amounts due under the same to any other person. 3. Appellants 1 to 4 are the defendants before the lower court. They are Sub Post Master (L.S.G), Kozhinjampara Post, Palakkad, The Superintendent of Post Offices, Palakkad district, the Chief Post Master General, Kerala Circle, Thiruvananthapuram and the Director General (P.C.), Department of Posts, New Delhi. The appellants/defendants mainly contended before the lower court that there are no records to show that the Indira Vikas Pathras in question belong to the plaintiff, that as per Rule 7(2) of Indira Vikas Patra Rules 1986, a certificate lost, AS.No.459/1998 3 stolen, mutilated, defaced or destroyed beyond recognition will not be replaced by any Post Office. 4. The plaintiff was examined as PW1 and Exts.A1 to A9 were marked on the side of the plaintiff. No oral evidence was adduced by the appellants/ defendants. On their side, Ext.B1 was marked. The lower court on an appreciation of evidence found that the respondent/plaintiff has proved that the eight Indira Vikas Pathras mentioned in the plaint belong to him and that the same was stolen from his house and has decreed the suit without costs. The defendants have now come up in appeal. 5. Sri.P.J.Philip, learned counsel appearing for the appellants mainly argued that without producing the original certificate, the said Vikas Pathras cannot be encashed and that the respondent/plaintiff should have proceeded under Rule 11 of Indira Vikas Patras Rules 1986 which says that the holder of the Indira Vikas Patra should approach the Central Government for relaxing the Rules. But no such contention was seen raised by the appellants before the trial court. Further, after a lapse of more than 10 years, I feel that it is not proper to AS.No.459/1998 4 direct the respondent/plaintiff to approach the government. Therefore the above argument advanced by the counsel for appellants has only to be rejected. 6. The finding of the lower court that the said Vikas Pathras belong to the plaintiff is not seriously challenged by the appellants which is also proved by the evidence of PW1 and Exts.A1 to A9. Ext.A1 is the copy of FIR which shows that PW1 has complained on May 3, 1990 itself. In that F.I.Statement itself, he has given the details of those Indira Vikas Pathras. Ext.A2 is the copy of refer notice issued by the police. Ext.B1 is the true extract of the register showing the issuance of IVPs wherein also the IVPs mentioned in the plaint are recorded as sold. Maturity dates of those Indira Vikas Patras varies from December 11, 1992 to September 5, 1993. So far nobody has made any claim regarding those IVPs except the plaintiff. All these facts and circumstances lead to the irresistible conclusion that the said IVPs belong to the plaintiff. Therefore, I confirm the finding of the lower court on this point. 7. The next question for consideration is whether the AS.No.459/1998 5 appellants/defendants can be directed to encash those IVPs and to pay the amount to the respondent/plaintiff. As it is found that those IVPs belong to the plaintiff, the defendants are bound to encash the same and pay the amount to the plaintiff. As regards Rule 11 of Indira Vikas Patra Rules 1986, I have already found that no such contention was raised by the appellants before lower court and that it is not proper to direct the plaintiff to approach the Government after a lapse of more than ten years. 8. The lower court has quoted Rule 42 of POSB Vol.2 which enables the appellants to issue duplicate certificates. But a copy of the said Rule has been submitted before me by the counsel for the appellant. It relates to loss of articles from the custody of the Post Master. Therefore, it is not relevant in this case. The lower court has mentioned about execution of indemnity bond in the form NC, 54(a) which is also not applicable to this case. Since there is already a decree of the court declaring that the Indira Vikas Pathras in question belong to the plaintiff, the appellants are bound to encash the same and pay the amount to the respondent/plaintiff. Therefore, I find no merit in the AS.No.459/1998 6 appeal and the same is dismissed with costs throughout. The appellants shall encash the Indira Vikas Pathras mentioned in the plaint and disburse the amount to the respondent/plaintiff within two months from this date , failing which, the plaintiff can take necessary steps to recover the amounts from the appellants by executing the decree. P.Q.BARKATH ALI JUDGE sv. AS.No.459/1998 7