IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.177 OF 2009 C/W CIVIL REVISION PETITION NO.223 OF 2010 IN CIVIL REVISION PETITION NO.177 OF 2009 BETWEEN:
ANIL K SHETH, AGED 44 YEARS, S/O K.H.SHETH, C2, 2ND FLOOR, RAMA BHAVAN COMPLEX, KODIALABAIL, MANAGALORE TALUK. …PETITIONER (BY SRI U.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE EDEN AQUATIC AND SPORTS FOUNDATION, KADRI HILLS, MANGALORE – 575004, REPRESENTED BY ITS MANAGING COMMITTEE.
2. MR.EUGINE RENT, ADULT, 3. MR.BENNET RENT, ADULT, NOS.2 AND 3 ARE RESIDING ROAD, PADAVU, MANGALORE.
4. CAPTAIN N.P.HEGDE, ADULT, NO.8, ‘EDEN’ KADRI, KADRI HILLS, MANGALORE-5.
5. CAPT. B. P.S PAIS, ADULT, ‘GENNUINE COTTAGE’ ASHOKNAGAR, MANGALORE.
6. DR.R.N.SUJIR, ADULT, COELHO LANE, FALNIR, MANGALORE.
7. MRS.MANJUSHREE BHARGAVA, ADULT, ‘KHUSHUBU’, EDEN II, PADAVU, MANGALORE – 5, R-1 IS THE FOUNDATION AND NO.2 ARE THE MEMBERS OF MANAGING COMMITTEE OF NO.1 FOUNDATION. ...RESPONDENTS (BY SRI O.SHIVARAMA BHAT, ADVOCATE) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, REVISION PETITION LIES AGAINST THE JUDGMENT OF THE LOWER COURT SINCE SECOND APPEAL DOES NOT LIE. HENCE THE ABOVE CASE MAY KINDLY BE POSTED BEFORE THE HON’BLE COURT TO HEAR ON MAINTAINABILITY OF REVISION PETITION FOR JUDICIAL FINDING ON THE OBJECTION RAISED BY THE OFFICE.
IN CIVIL REVISION PETITION NO.223 OF 2010 BETWEEN:
ANIL K SHETH, AGED 49 YEARS, S/O K.H.SHETH, C2, 2ND FLOOR, RAMA BHAVAN COMPLEX, KODIALABAIL, MANAGALORE TALUK. …PETITIONER (BY SRI U.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE EDEN AQUATIC AND SPORTS FOUNDATION, KADRI HILLS, MANGALORE – 575004, REPRESENTED BY ITS MANAGING COMMITTEE.
2. MR.EUGINE RENT, ADULT, RESIDING AT LOURDS”, VIVEKANDA ROAD, PADAVU, MANGALORE – 575005.
3. MR.BENNET RENT, ADULT, NOS.2 AND 3 ARE RESIDING ROAD, PADAVU, MANGALORE – 575005.
4. CAPTAIN N.P.HEGDE, NO.8, “EDEN”, KADRI HILLS, MANGALORE - 575004.
5. CAPT. B. P.S PAIS, ADULT, ‘GENNUINE COTTAGE’ ASHOKNAGAR, MANGALORE – 575003.
6. DR.R.N.SUJIR, ADULT, COELHO LANE, FALNIR, MANGALORE – 575001.
7. MRS.MANJUSHREE BHARGAVA, ADULT, ‘KHUSHUBU’, EDEN II, PADAVU, MANGALORE - 575005.
R-1 IS THE FOUNDATION AND R2 TO R7 ARE THE MEMBERS OF THE MANAGING COMMITTEE OF R-1. ...RESPONDENTS (BY SRI O.SHIVARAMA BHAT, ADVOCATE) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.12.2007 PASSED IN R.A.NO.227/2003 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN) MANGALORE, D.K, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 28.08.2003 PASSED IN O.S.NO.200/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) MANGALORE, D.K., PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.
THESE PETITIONS COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Civil Revision Petition No.177/2009 is filed for setting aside the impugned common judgment dated 13.12.2007 passed in R.A. No.229/2003 by the II Addl. Civil Judge (Sr.Dn.), Mangalore, allowing the appeal and setting aside the impugned judgment and decree passed in O.S. No.200/2003.
2. Civil Revision Petition No.223/2010 is filed for setting aside the impugned common judgment dated 13.12.2007 passed in R.A. No.227/2003 by the II Addl. Civil Judge (Sr.Dn.), Mangalore, dismissing the appeal.
3. The facts leading to these two revision petitions are that, on 09.03.1994 Revision petition Anil K. Sheth was enrolled as a member of the respondent No.1 / defendant No.1 foundation. On 28.01.2002, the plaintiff / petitioner submitted his resignation to the life membership of the foundation. On 11.03.2002, the respondent No.1 / defendant No.1 foundation accepted the resignation and issued a letter informing the plaintiff / petitioner to pay a sum of Rs.3,438.61, the outstanding dues. In response to the same, the plaintiff / petitioner gave a reply to deduct the said amount from the security deposit. Thereafter, on 28.06.2002, the respondent No.1 / defendant No.1 foundation refunded an amount of Rs.10,811.39 through cheque dated 28.06.2002 informing that Rs.3,000/- per year has been deducted as usage of the facilities of foundation.
4. Being aggrieved by the part refund of the amount, the plaintiff / petitioner filed original suit No.200/2003 for recovery of a sum of Rs.20,750/- along with interest at 24% per annum from 22.04.2002.
5. On the basis of the pleadings, the following issues were framed:
i. Whether the defendants prove that out of Rs.35,000.00, a sum of Rs.10,811.39 refunded to the plaintiff as per the cheque dated 28.06.2002 towards cancellation of his membership is correct and proper as contended in the written statement?
ii. Whether the plaintiff is entitled to recover a sum of Rs.25,835.00 from the defendants with future interest at 25% p.a. from the date of suit till payment of entire amount as prayed for?
iii. What Decree or Order?
6. The plaintiff / petitioner was examined as PW1 and one Sri. G.P.Mascararnehas was examined as DW1.
7. On behalf of the plaintiff / petitioner, the following documents were got marked:
Ex.P1 : Letter dated 28.01.2002 Ex.P2 : Reply notice dated 11.03.2002 Ex.P2(a) : Statement Ex.P3 : Copy of letter dated 03.04.2002 Ex.P5 : Letter dated 29.04.2002 Ex.P6 : Letter dated 24.05.2002 Ex.P7 : Letter dated 24.06.2002 Ex.P8 : Letter dated 18.07.2002 8. On appreciating the oral and documentary evidence, the Prl. Civil Judge (Jr.Dn.), Mangalore, by a judgment dated 28.08.2003, partly decreed the suit holding that the plaintiff is entitled to recover a sum of Rs.6,750/- along with interest at 6% per annum from 22.04.2000 till realization.
9. Being aggrieved by the judgment and decree passed in O.S. No.200/2003, the plaintiff / petitioner filed a regular appeal which was numbered as R.A. No.227/2003. The regular appeal was also filed by the respondent No.1 / defendant No.1 foundation which was numbered as R.A. No.229/2003.
10. On hearing the parties, in these two appeals, the first appellate court framed the following points that arose for consideration:
i. Whether the plaintiff proves that the deductions made by the defendants out of the security deposit amount is illegal, unreasonable, unauthorized and opposed to law and as such, the defendants are liable to refund the balance of Rs.20,750/- as alleged in the plaint?
ii. Whether the judgment and decree passed by the court below is contrary to law and evidence as contended?
iii. Whether the defendants/appellants prove that the findings given by the court below on Issue Nos.1 and 2 is not correct as urged in Cross-Appeal No.229/2003?
iv. Whether the judgment and decree under appeal requires any modification?
v. What order?
11. On hearing both counsels, regular appeal filed by the plaintiff / petitioner was dismissed and the regular appeal filed by the respondent No.1 / defendant No.1 foundation was allowed and the judgment passed by the trial court in O.S. No.200/2003 was set aside.
12. The plaintiff / petitioner enrolled on 09.03.1994 to the respondent No.1 / defendant No.1 foundation as a life member. At that time, the respondent No.1 / defendant No.1 foundation had collected the deposit of Rs.35,000/- which was refundable on surrender of the membership, according to the plaintiff / petitioner. The membership was surrendered through letter dated 28.01.2002, for which, the respondent No.1 / defendant No.1 foundation informed the plaintiff vide its letter dated 11.03.2002 stating that there is an outstanding due of Rs.3,438.61. The plaintiff / petitioner gave a reply to deduct the said amount from the security deposit. Thereafter, on 28.06.2002, the respondent No.1 / defendant No.1 foundation refunded an amount of Rs.10,811.39 through cheque dated 28.06.2002 informing that Rs.3,000/- per year has been deducted as usage of the foundation.
13. The only controversy is regarding the quantum of amount repayable by the respondent No.1 / defendant No.1 foundation. The evidence placed on record confirms that a sum of Rs.10,811.39 was refunded by the respondent No.1 / defendant No.1 foundation through cheque dated 28.06.2002, by deducting a sum of Rs.3,000/- per year towards usage of foundation and Rs.1,000/- towards imprest cash deposit. Thus, it is necessary to ascertain whether the deduction of the said amount is justified.
14. In the cross-examination, the plaintiff / petitioner has admitted that the respondent No.1 / defendant No.1 foundation is a famous Sports and Recreation Club in Mangalore. Further, he has stated that while getting enrolled as a life member, he has gone through the Rules and Regulations and has given declaration that he is bound by the said Rules and Regulations. Further, he has admitted the statement of accounts which is marked as Exhibit-D3 and has stated that the respondent No.1 / defendant No.1 foundation was collecting Rs.250/- as subscription. He has also admitted that he do not know whether the deposit amount given was without interest. It is also admitted that the cheque for Rs. 10,811.39 was sent by respondent No.1 / defendant No.1 foundation and he has encashed the said cheque. The statement of accounts is marked as Exhibit-D3. Exhibit-P7 is the letter dated 24.06.2002 which was issued by the plaintiff / petitioner to the Managing Trustee of respondent No.1 / defendant No.1 foundation, wherein he has stated that he is going to present the cheque issued for Rs.10,811.39 for encashment, reserving his right to recover the balance amount. Exhibit-P8 is the letter dated 18.07.2002 sent by the plaintiff / petitioner requesting the respondent No.1 / defendant No.1 foundation to furnish the copies of the Rules and Regulations.
15. The Manager of respondent No.1 / defendant No.1 foundation is examined as DW1 and the following documents were marked:
Ex.D1 : Identity card Ex.D1(a) : Signature Ex.D2 : Membership application Ex.D2(a) : Signature Ex.D3 : Statement of accounts Ex.D4 : Notice dated 06.05.2002 Ex.D5 : Notice dated 24.06.2002 Ex.D6 : Letter dated 22.04.2002 Ex.D7 : Resolution book Ex.D8 : Copy of Minutes book Ex.D9 : Copy of Minutes book Ex.D10 : Copy of Minutes book Ex.D11 : Copy of News letter Ex.D12 : Copy of News letter Ex.D13 : Copy of proceedings of the meeting 16. In the cross-examination, it is stated that as per Exhibit-D10, the only subscription of Rs.3,000/- per year is deducted from the deposit amount. Exhibit-D13 is the proceedings of the meeting of the Board of Trustees, wherein, a resolution was passed to deduct Rs.3,000/- per year only from life membership deposit, as listed in Eden Club Rules and Regulations, 1991 – para VIII(d).
17. The original resolution book of Exhibit-D13 is also produced before this Court. Thus, it is evident that as per the said resolution, the respondent No.1 / defendant No.1 foundation is entitled to deduct the annual subscription of Rs.3,000/- per year out of the deposit amount paid by the life members of the club.
18. The plaintiff / petitioner was a life member for the period from 09.03.1994 to 28.01.2002 namely for 8 years. The amount of deposit given by the plaintiff / petitioner was Rs.35,000/-.
19. On re-appreciation of the entire oral and documentary evidence placed on record, this Court is of the opinion that there is cogent evidence to show that the plaintiff / petitioner has enrolled as a life member by depositing a sum of Rs.35,000/-. Thereafter, he has tendered resignation after eight years, i.e., on 28.01.2002. Thus, the respondent No.1 / defendant No.1 foundation has deducted the annual subscription of Rs.3,000/- per year, for a period of eight years and Rs.1,000/- towards imprest cash deposit, as per the Rules and Regulations of the club and has refunded a sum of Rs.10,811.39 through cheque, which has been encashed by the petitioner. Thus, nothing remains to be paid by Respondent - Eden Aquatic and Sport Foundation.
20. On re-appreciating the oral and documentary evidence placed on record, this Court is of the view that there are no valid grounds to interfere with the findings given by the first appellate Court.
For the foregoing reasons, both Civil Revision Petitions are dismissed.
Sd/- JUDGE SJ