IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 AS.No. 627 of 1996(C) --------------------- OS.130/1993 of SUB COURT, VADAKARA .................... APPELLANTS/DEFENDANTS: ---------------------- 1. THE COMMISSIONER AND SECRETARY, GOVT. OF GOA, DEPARTMENT OF FINANCE, PANAJI, GOA. 2. EX OFFICIO DIRECTOR OF LOTTERIES, EX OFFICIO DEPUTY SECRETARY, FINANCE DEPARTMENT, GOVT. OF GOA, PANAJI, GOA. 3. GOVERNMENT OF GOA, PANAJI, GOA REPRESENTED BY COMMISSIONER AND SECRETARY, GOVT OF GOA. BY ADV. SRI.M.R.RAJENDRAN NAIR SRI.K.K.R.KUMAR RESPONDENT/PLAINTIFF: -------------------- A.P.BABU, S/O.KELAPPAN, AMBALAPARAMBATH HOUSE, NADUKKUTHAZHA, VADAKARA TALUK. ADV. SRI.V.K.RAVINDRAN SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 627 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2010 Judgment Basheer, J: Defendants in a suit for realisation of money are the appellants in this appeal. The above suit was instituted by the respondent herein for recovery of Rs.6,50,000/- with interest at the rate of 12% per annum. The case of the respondent/plaintiff in brief was that the lottery ticket purchased by him for the 93rd draw of Jai Mathrubhumi Lotteries being conducted by the Government of Goa had won the first prize of Rs.5 lakhs and a Maruti car. The said ticket was purchased by him from an authorised agent at Vadakara. But when the prized ticket bearing No. JM 263595 was surrendered to the Ex Officio Director of Lottery Government of Goa through Vadakara Co- operative Rural Bank Limited plaintiff was informed through the Bank that the prize money and car could not be paid to him since the ticket was torn in two parts through the middle. It was in the above circumstances that the plaintiff instituted the suit before the Subordinate Judge's Court, Vadakara. AS.627/1996. : 2 : 2. Appellants/defendants contended that the Court at Vadakara had no jurisdiction to try the suit since the office of the defendants is in Goa and the draw of the lottery was held at Panaji in Goa. The contention of the plaintiff that the ticket was purchased at Vadakara was denied. It was further contended that appellant's agent was Commercial Corporation of India Pvt. Ltd., Manipal and not S.S.Maniyan as alleged by the plaintiff. It was further contended that a clause incorporated on the reverse of the ticket specifically ousted the jurisdiction of all courts except the Court at Panaji. According to the defendants, the Court at Panaji alone had jurisdiction to settle any dispute in connection with the conduct of Jai Mathrubhumi Lottery being conducted by the Govt. of Goa. It was further contended that going by clause 7 incorporated on the reverse side of the ticket, any claim on a ticket which is forged, torn, mutilated or tampered with would not be entertained. 3. The court below framed the following issues: (1) Whether the court has jurisdiction to try the suit? (2) Whether the terms and conditions contained on ticket No.JM 26 AS.627/1996. : 3 : 3595 are illegal and unenforceable? (3) Whether the claim made in the plaint is excessive and if so what is the quantum? (4) What is the proper order as to costs? Plaintiff got himself examined as Pw.1 and his witness was examined as Pw.2 . Exts.A1 to A14 were marked on his side. Defendants did not adduce any oral evidence, though Ext.P1 was marked on their side. 4. The court below found that it had jurisdiction to entertain the suit. While holding so the court below took note of the specific contention raised by Pw.1 that he had purchased the ticket from an authorised agent who had been selling tickets of all State Governments in India. He purchased the ticket without looking at the small print on the reverse side of the ticket which allegedly conferred exclusive jurisdiction to the Court at Panaji in Goa. Pw.2 who sold the ticket to Pw.1 deposed that he had been selling tickets of all State Governments including that of the defendants for the last 7 years. 5. It is pertinent to note that clause 11 on which heavy reliance has been placed by learned counsel for the appellants reads thus: “The legal jurisdiction of the lottery AS.627/1996. : 4 : scheme shall be at Panaji.” The Court below while dealing with the above issue considered the case law on the point as laid down by various High Courts and more importantly the decision of their Lordships of the Supreme Court reported in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies ((1989) 2 SCC 163). After considering the decisions in Economic T. Organization v. United India Insurance Co. (1986 KLT 220), National Starch & Chemicals v. Weikfield Products Co.(India) (1990 (1) KLT 217), Spl Secretary, Govt. of Rajasthan v. Venkataramana Seshaiyer (AIR 1984 AP 5) and Naziruddeen v. P.A. Annamalai (AIR 1978 Madras 410), the learned Judge held that clause 11 printed on the reverse side of Ext.B1 ticket cannot have the effect of ouster of jurisdiction of the Court at Vadakara. 6. While considering the question whether the prized ticket which was admittedly torn into two pieces through the midline would disentitle the plaintiff from getting the prize money, it was noticed by the court below that the defendants had not raised any dispute about the “identity” or genuineness of the prize winning ticket. It had also come out in evidence that the plaintiff had staked claim for the prize money as early as on December 30, 1991. It AS.627/1996. : 5 : may be remembered that the draw of the lottery was held on December 28, 1991. Ext.A2 letter was sent by the plaintiff to the Manager, Vadakara Co-operative Bank on December 30, 1991 authorising the Bank to collect the prize money on his behalf. Ext.A13 and A14 registered lawyer notices were issued by the plaintiff demanding payment which did not yield any result. 7. Significantly it had also come out in evidence from the testimony of Pw.2, the authorised dealer of Jai Mathrubhumi lottery, that the dealer had collected the agent's commission of Rs.25,000/-. Thus the court below came to the conclusion that the above action of the defendants in disbursing the agent's commission would clinchingly show that the defendants had accepted that Ext.B1 ticket had won the first prize. Therefore the court below held that the plaintiff was entitled to get the prize money in respect of Ext.B1 ticket and that the so called terms and conditions contained on the reverse side of the ticket would not disentitle him from claiming the prize money. Resultantly the court below decreed the suit as prayed for. 8. It is brought to our notice that in AS.No.645/97 a similar issue had arisen for consideration. A learned single AS.627/1996. : 6 : Judge of this Court dismissed the appeal preferred by the Director, Institute of Public Assistant, Panaji, Goa against a decree and judgment passed by the Subordinate Judge's Court, Palakkad and held that the holder of a prize winning ticket cannot be denied the prize money on the ground that the ticket was torn or mutilated. The learned Judge while confirming the decree and judgment held that so long as no other rival claim was raised by anybody in respect of the prize winning ticket, the authority which conducted the lottery was bound to satisfy the claim. 9. We have carefully perused the entire materials available on record. In our view the court below has considered the entire aspects of the matter in their proper perspective. As has been rightly noticed by the court below, the appellants did not have a case that the prize winning ticket was not genuine or that there was some doubt about its number since the ticket was torned through the middle. More importantly, there was no rival claimant for the prize money. The prize winning ticket was purchased from an authorised dealer. The appellants had paid the commission for the prize winning ticket to the dealer as admitted by Pw.2. Therefore the court below, in our view, was justified in holding that the plaintiff was entitled to get the prize AS.627/1996. : 7 : money. We do not find any reason to interfere with the findings entered by the courts below while decreeing the suit. There is no merit in any of the contentions raised by the appellant. The decree and judgment passed by the court below are confirmed and the appeal is dismissed. However in the peculiar facts and circumstances of the case there shall be no order as to costs. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.