IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 AS.No. 58 of 1997(E) ------------------------------ OS.1209/1992 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): PLAINTIFFS ------------------------- 1. GEORGE, RESIDING AT SUMA BHAVAN, N.P.3/206, KARAKKADU LANE, PONNUMANGALAM, NEMOM P.O., THIRUVANANTHAPURAM 20. (POWER OF ATTORNEY HOLDER OF APPELLANTS 2 TO 5.) 2. KANAKA ABAI, DO. DO. 3. SELVARAJ, DO. DO. 4. ROOSEVELT SINGH, RESIDING AT THEKKEKULANGARA VILAKATHU VEEDU, KEEZHKOLLA, AMARAVILA P.O., (VIA) NEYYATTINKARA. 5. NOBLE, RESIDING AT PUTHUVEL PUTHEN VEEDU, POOVATHOOR, MANCHUVILAKOM P.O., (VIA) DHANUVACHAPURAM. (APPELLANTS 2 TO 5 ARE REP.BY THEIR POWER OF ATTORNEY HOLDER, THE IST APPELLANT). BY ADVS.MR.N.SUKUMARAN MR.PHILIP M.VARUGHESE MR.S.SHYAM RESPONDENT(S): DEFENDANTS ------------------------ 1. KILLIYOOR P.GOPALAKRISHNAN NAIR, ADVOCATE, AMERICAN INSTITUTE BUILDING, VANCHIYOOR, THIRUVANANTHAPURAM RESIDING AT 'RETREAT', POTTUVILAKOM, KILLIYOOR DESOM, VELLARADA VILLAGE, NEYYATTINKARA. AS. NO.58/1997 *2. JAYAKUMAR, FORMERLY CLERK OF ADVOCATE KILLIYOOR, P.GOPALAKRISHNAN NAIR, AMERICAN INSTITUTE BUILDING, VANCHIYOOR AND NOW CLERK OF ADVOCATE AND ADDL. PUBLIC THIRUVANANTHAPURAM. (REMOVED) R2 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 4.2.08 ON IA. 420/08. BY ADV. MR.B.S.SWATHIKUMAR FOR R1 (RELINQUISHED) MEMO NOT RECEIVED THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON 14/07/2009 DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NO: 58 OF 1997 ----------------------------------------------------------- Dated this the 14th July, 2009. JUDGMENT The appellants are the appellants in O.S.1209/1992 of the Sub Court, Thiruvananthapuram. They had filed the suit for the realisation of an amount of Rs.38,475/- as damages from the respondents/defendants with interest thereon at the rate of 12% per annum. After trial, the court below has dismissed the suit. The appellants challenge the said judgment and decree of the court below. 2. The first appellant/first plaintiff is the power of attorney holder of the other appellants who are appellants 2 to 5 in the suit. He had filed the suit for and on behalf of the other appellants also acting as their power of attorney holder. Appellants 2 to 5 had deposited amounts with a business concern by name, Messrs. TVR Fund, Karamana. They had pass books and other records evidencing such deposit. Since they were not able to recover the amounts so deposited, they approached the first respondent/first defendant who is a practising lawyer at Thiruvananthapuram for professsional assistance in filing a case against the said firm. Appellants 2 to 5 had initially approached one Mr. Salimkumar A.S.58/1997 2 another advocate practising at Thiruvananthapuram, who is a friend of the first plaintiff. Salim Kumar introduced the appellants to the first defendant. The first defendant agreed to file a suit for recovery of the amounts due. Thereupon, the appellants 2 to 5 handed over the records of their transaction and also an amount of Rs.1700/- to the first defendant towards Court fees, Advocate fees and other connected expenses. The first defendant advised them to file a suit before 14.12.1990 because on the said date, the claim would become time barred. The pass book and other records evidencing the deposits made by them were handed over to the first defendant as stated above on 26.11.1990. The appellants also raised the necessary funds for filing the suit which was also given to the first defendant. Appellants 2 to 5 executed a vakalath in his favour and handed over the same to the first defendant. In the month of December 1990 the first defendant informed the first plaintiff that the suit had been filed in the month of November 1990 and notice had been issued to the defendant in the said suits. The numbers of the suits were informed to be O.S.2682/90, 2675/90, 2677/90, 2673/90. Thereafter, though the first plaintiff kept on enquiring about the progress of the suits, the first defendant used to give only evasive answers. 2. During the month of November 1991, the first plaintiff A.S.58/1997 3 made enquires with the first defendant whereupon he informed the first plaintiff that written statements had been filed in the suits by the defendants therein and that the same was favourable to them. An amount of Rs.150/- was paid, by the first plaintiff for filing a replication. Later on, the first defendant told the plaintiff that replication need not be filed and that issues had been settled by the court. In spite of repeated requests, the first defendant did not give copies of the written statements to the appellants. In January 1992 the first defendant told the first plaintiff that the files of the suits were lost and that copies of the required documents would have to be taken from the court. However, copies of documents were not taken by the first defendant from the Court as promised. The first plaintiff came to know that the first defendant did not have any idea even about the posting of the cases. The appellants understood that there was some malpractice. The first plaintiff came to know that there was no posting in the diary of the first defendant for the cases of the appellants. The above circumstances together with the inconsistent explanations of the first defendant convinced the first plaintiff that there was some malpractice. 3. The second defendant is the clerk of the first defendant. The enquiries of the appellants revealed that the second defendant A.S.58/1997 4 had left the office of the first defendant and one Sasi had been appointed in his place as the clerk. In the above circumstances the first plaintiff conducted enquiries and came to know in February 1992 that no suits had been filed by the first defendant as made out by him. The numbers of the original suits given by the first defendant were false and the information regarding filing of written statement, posting dates etc. were all found to be false. It was found that the numbers furnished by the first defendant related to other suits filed by various other Advocates on behalf of other clients. Thus, the appellants came to know that the first defendant/advocate who was entrusted with the file of the suits had cheated and defrauded them. He had also cheated the appellants by furnishing them with false information for 15 months. 4. On 22.2.1992, the first plaintiff accompanied by R.M.Salim Kumar, Advocate and others met the first defendant in his office and demanded return of the amounts paid by him together with the records entrusted for filing the suits. By this time the assets of Messrs. TVR Fund had been taken over by the Official Receiver and he was in the process of disbursing debts due to the various creditors. Therefore, the first plaintiff told the first defendant that it was not necessary to file the suits. The appellants wanted to take up the matter with the Official Receiver and required their records A.S.58/1997 5 for the purpose. 5. However, the first defendant did not return the records to the appellants. Consequently, it became impossible for the appellants to recover the amounts due to them from Messrs. TVR Fund since they were prevented from even filing claim petitions before the Receiver for want of records. The first defendant also refused to return the money paid by them. Consequently, the appellants suffered loss which they were entitled to recover from the defendants. The amounts due from Messrs. TVR Fund was Rs.31,858/-, inclusive of interest calculated up to the end of December 1990. Apart from that, the amount of Rs.1850/- paid to the first defendant, interest due from January 1992 at the rate of 12% together came to an amount of Rs.38,475/- up to September 1992. The appellants sought to recover the said amount from the defendants by filing the suit. 6. Though the appellants had filed petitions before the Thiruvananthapuram Bar Association, they could not get any relief. Therefore a registered notice was issued to the first defendant demanding the amount that was due. According to the appellants, though they had complained the Bar Council of Kerala they could not get any redressal from the said authority also. 7. The suit was contested only by the first defendant. The A.S.58/1997 6 second defendant remained ex parte. The first defendant filed written statement contending that the suit was not maintainable, having been filed without any bonafides whatsoever. Advocate Salim Kumar was not a friend of his. The appellants were not introduced by the said person as alleged. The appellants did not raise the amount necessary for meeting the expenses for filing the suit. He admitted that they had signed papers sufficient to file the suit. The first defendant filed the suit on the basis of their respective claims. Notices and summons were ordered to the defendants in the said cases. They did not appear and therefore, after setting them ex parte the suits were posted for evidence. But the appellants did not turn up in spite of information given to them and hence, the suits were dismissed for default. According to the first defendant, he had never furnished the numbers of the cases mentioned in the plaint to the appellants. He has never informed that any files from his office were missing. According to him, no records were entrusted by the appellants to the first defendant and no money was paid to him. The first defendant does not have any duty to give anything to the appellants which he was not entrusted with. He claimed that he had been practising at Thiruvananthapuram as a lawyer for the past 12 years and that there was no stain on his career. He has never defrauded any client A.S.58/1997 7 nor has he been negligent at any time. He does not even know the appellants personally. According to him, if the appellants had entrusted any document or money with someone who was not his agent, he cannot be made liable. According to him the suit is filed with malicious intention to lower his reputation in the eye of the public and friends. The appellants are only name lenders who have no cause of action against the first defendant. Therefore, he prayed for dismissal of the suit. 8. The court below framed five issues on the above pleadings and tried the suit. The evidence in the case consists of the oral testimonies of P.W.1 and D.W.1 and Exts.A1 to A4 documents. No documents were produced or marked for the defence. 9. After considering the case of the rival parties and the evidence on record, both oral and documentary, the court below found that the first defendant was not guilty of any professional misconduct since he had filed the suit on 4.3.1992. It is found that since the amount handed over to him had been utilised for filing the suit, he had no liability to pay back any amount to the appellants. Therefore, the appellants have been held not entitled to recover any amount from the first defendant and in the above view of the matter, the suit has been dismissed. 10. The appellants challenge the findings of the court below A.S.58/1997 8 on a number of grounds. Counsel for the appellants submits that the contentions of the first defendant have no bonafides whatsoever. Having made the appellants believe that he had filed the suits in November 1990, after having supplied them with numbers of some other suits, having made them believe that written statements had been filed in the suits, issues had been raised, having informed them that their files were lost and having extracted money from them, there is no justification in the contention that suits had been filed on 4.3.1992. Though the written statement contains a plea of total denial of the transaction with the appellants, he has subsequently admitted the transaction but has then tried to blame the appellants for not having attended the Court on the date of the trial, resulting in dismissal of the suits. Soon after copy of the written statement filed by the respondent was received, the appellants have filed a replication setting out details of the records handed over by them to the first defendant and alleging professional misconduct. According to the counsel for the appellant, the conduct of the first defendant clearly shows that he had been deliberately trying to cheat the appellants. 11. According to the counsel for the appellants, the court below has proceeded in the matter on the basis of a number of wrong impressions regarding the pleadings and the evidence in the A.S.58/1997 9 case. The court below has committed many mistakes even in narrating the pleadings of the parties in paragraph 7 of the judgment. The Court can be seen to have strained itself to find fault with the appellants, for reasons not known to them. Though it is stated in the judgment that there is an averment in paragraph 15 of the plaint to the effect that even before filing of the present suit Messrs. TVR Fund was declared as an insolvent, a receiver was appointed by the court and that he took charge of the assets of the fund, it is pointed out that there is no such averment in paragraph 15 of the plaint. It is therefore contended that the court below has approached the entire issue on the basis of a wrong understanding of the facts and evidence in the case. On the above grounds, the counsel has prayed for setting aside the judgment and decree of the court below and for decreeing the suit. 12. I have heard the matter in detail and have perused the pleadings as well as the evidence in the case both oral and documentary. 13. During the pendency of the appeal the first appellant passed away. Since his legal heirs are already on the party array as appellants 2 to 5 a memo has been filed to the effect that that it is not necessary to implead anyone else to represent him. The appellants have also filed I.A.1605/2009 under Order 41 Rule 27 of A.S.58/1997 10 the CPC seeking permission to produce two additional documents at the appellate stage, which are Annexures A1 and A2 produced along with the said petition. The said documents are two judgments of the disciplinary committee of the Bar Council of India dated 24.12.2001 and 18.7.2003 disposing of the complaint filed by the appellants against the respondent and the review petition filed by the 1st respondent against the judgment dated 24.12.2001. It is prayed that they may be received in evidence, since they were not in existence at the time of trial of the suit and are documents that could not have been produced earlier. No counter affidavit has been filed objecting to the said petition, The documents that are sought to be produced were not in existence at the time of trial. Therefore, they could not have been produced earlier. The documents are relevant documents. Further, Annexures A1 and A2 relate to proceedings in which the appellants and the respondent in the above appeal were parties. Therefore, the petition is allowed. 14. According to the appellants, they had approached the first respondent through one R.L. Salim Kumar, Advocate who was a friend of the first plaintiff for filing suits against Messrs. TVR Fund, Karamana for the recovery of the amounts due to them from the said fund. 15. After going through the documents the first respondent A.S.58/1997 11 is alleged to have told them that the period of limitation for filing the suits would expire on 14.12.1990. Therefore, they raised the required amounts and paid the same to the respondent for filing the suit. However, he did not file them. Instead, when the first plaintiff enquired about the progress of the case, he informed the first plaintiff that the suits had been filed in November 1990 itself and that notices to the defendants had been ordered by the Court. He also gave the numbers of four suits which were all false. Though the first plaintiff was continuously enquiring about the cases, the first respondent continued to supply him with one false information after another. 15. During March 1991 the first respondent informed that notices were accepted by Messrs. TVR Fund and that the suits were posted for filing written statements. During July 1991 he informed the appellants that written statements had been filed and copies thereof would be received from the the Court during the next posting. He also gave certain posting dates to the appellants. The numbers of the suits so supplied as well as the posting dates are set out in the plaint itself. 16. In November 1991, the first respondent informed the first plaintiff that he had gone through the written statements and that the same was favourable to the appellants. An amount of A.S.58/1997 12 Rs.150/- was then paid to the first respondent as demanded, to file replication and issues. Later on he told the first plaintiff that replication statements were not necessary and that issues would be framed by the Court. Though the first plaintiff wanted to see the written statements, the first respondent evaded the request on some pretext or the other. Later on in January 1992, the first respondent informed the appellants that the files of the four suits were missing and that time was required to trace out the missing files. They were asked to meet him after two weeks. In the third week of January, 1992 he informed the first plaintiff that the files of the four suits had been irrecoverably lost and, therefore copies of the required documents would be taken from the Court. But copies were not taken and it was clear that the first respondent was not even aware of the posting dates of the suits. There was no information regarding the four suits in the diary of the respondents. Thus, the appellants came to know that there was some sort of malpractice in relation to their suits. 17. In the above circumstances, detailed enquiries conducted by the first plaintiff during the second week of Febuary 1992 revealed that no suits had been filed by the first respondent as claimed by him. The numbers given by the first respondent were also found to be false. On verification from the court records it was A.S.58/1997 13 found that the said suits were filed by different lawyers in respect of various other persons. Thus, the appellants came to know that they had been cheated by the first respondent and that they were being mislead for about 15 months by the first respondent by furnishing false information. The appellants then met the respondent along with R.L. Salim Kumar, Advocate and demanded return of the amounts paid by them as well as records given for filing the suits. By this time the assets of Messrs. TVR Fund had been handed over to the Official Receiver for disbursing the debts due to different creditors. So, the first plaintiff requested the first defendant that, the suits need not be filed thereafter. However, the records were not returned to the appellants and thus they were prevented from pursuing their claim even before the Official Receiver. It is in the above circumstances that they have prayed for a decree for recovering the loss caused to them from the first respondent. 18. The case of the first respondent is vague and unclear. In his written statement, the first defendant has even denied that he was introduced to the appellants by Advocate Salim Kumar and that the said person is not even a friend of his. He does not say whether he was engaged by the appellants as stated in the plaint for the purpose of filing four cases. However, he says that they had A.S.58/1997 14 signed papers sufficient to file the suits, and though he had filed the suits on the basis of their claim, they did not appear in spite of information given by him and therefore, the suits were dismissed for default. However, it is worth noticing that the written statement does not specifically deny the statements in paragraph 7 of the plaint that the first respondent had advised the appellants to file the suits before 14.12.1990 since the suits would become barred by limitation on the said date. The written statement also does not contain a specific denial of the averment in the plaint that the entrustment of the documents for filing the suits were in 1990. Though the averments in the plaint are made with specific reference to the respective dates, as noted above, the written statement does not contain any denial with reference to the dates. It is well settled that an evasive denial is no denial at all. It is to be noted that a replication has also been filed by the appellants giving the details of the documents that were entrusted with the first respondent viz., pass books, credit slip, registered letter with postal acknowledgement due etc. It is also alleged in the replication in paragraph 5 thereof that the loss was caused to the appellants by the first respondent in collusion with M/s. TVR fund. 19. In his deposition as D.W.1, the first respondent admits that he had accepted the vakalath of appellants 2 to 5. He also A.S.58/1997 15 admits that he was introduced to them by Advocate Salim Kumar. According to him on the very same day, he was told that appellants 3, 4 and 5 were residing far away and that the suits had to be prepared and filed immediately. Therefore, they were prepared on the same day and were got signed by them. They promised to make available the funds for filing the suits through Advocate Salim Kumar. Though Salim Kumar did not say anything about the case for a long period of time, in 1992 he came and handed over Rs,1,000/- for filing the suits. According to him the amount was meant for meeting the expenses alone. He immediately filed the case. However, the cases were dismissed later on, for non- appearance of the appellants. In his cross-examination, he admits that the second defendant was his clerk, that too only for a period of six months in the year 1990. When the appellants came to his office for the first time and signed the papers for filing four suits, the second defendant was his clerk. He admits the receipt of three pass books and copy of a notice. He also admits that he had not produced the said documents along with the suits filed by him. He has not returned them to the appellants. His case is that nobody had demanded return of the said documents. It is further admitted by him that though the case was filed only on 4.3.1992, the same was prepared in the year 1990. He also admits that the A.S.58/1997 16 appellants have not received any records from him for submitting claims before the Receiver who was in possession of the assets of Messrs TVR Fund. He also admits that he had advised the appellants that the suits would be barred by time if they were not filed in the year 1990 itself. 20. The evidence of the first respondent as D.W.1 referred to above clearly shows that the case pleaded by the appellants is true. Exts. A7, A9, A11 and A13 are the plaints in O.S.Nos: 591/92, O.S.592/92, 593/92 and 594/92 alleged to have been filed by the first respondent on behalf of the appellants. A perusal of the said documents show that they are filed on 4.3.1992 and that the cause of action in the said cases were time barred. In view of the above the allegation of the counsel for the appellant that the suits were subsequently got dismissed for non-prosecution deliberately to conceal the fact that they were actually time barred cannot be said to be unfounded. The court below observes that it cannot be imagined for a moment that an Advocate who is entrusted with the case will keep the same without any reason whatsoever. The above observation amounts to shutting its eyes to the stark reality of the vital admissions of the first respondent referred to above.