The plaintiff in O.S.No.13 of 2006 is the appellant. The said suit was filed for recovery of a sum of Rs.11,69,217/- alleged to be the due on the borrowings made by the defendant from Paraspara Uthavi Nithi (Mutual Helping Fund) said to have been started and conducted by the Staff members of Don Bosco Higher Secondary School, Varatharajan Pettai, Perambalur District.
2. According to the plaintiff, he was the administrator of the said Paraspara Uthavi Nithi. The defendant who is a staff member of the said school had borrowed various amounts from the Nidhi between 1992 to 2003 agreeing to pay interest at 24% per annum on the said amount. Upon a calculation, the plaintiff had claimed that the amount borrowed by the defendant with interest worked out to Rs.11,14,752/- as on 1.6.2003. The defendant requested the plaintiff and the members of the Paraspara Uthavi Nithi for reduction of the rate of interest, the said request was acceded to by the plaintiff and other members of Nidhi and the amount payable by the defendant was reduced to Rs.8,66,087/-.
3. The defendant had executed a Muchalika on 02.08.2003 agreeing to repay the said amount of Rs.8,66,087/- within one year from the date of execution of the said Muchalika. Since the defendant did not come forward to repay the said money as agreed, the plaintiff has claimed interest on the principal amount of Rs.8,66,087/- and filed the above suit for recovery of Rs.11,69,217/-.
4. On 18.07.2006, the plaintiff had issued notice to the defendant and others calling upon the defendant to pay a sum of Rs.11,69,217/-. The copy of the said notice was also addressed to Correspondent of Don Basco Higher Secondary School, District Educational Officer, Varadarajan Pettai, Perambalur District and the Head Master of Don Bosco Higher Secondary School with a request to advise the defendant to settle the loan amount. On 24.07.2006, the defendant has sent a reply to the said notice, wherein he denied the execution of Muchalika dated 02.08.2003. He has also denied the quantum of money claimed. It is also claimed in the reply notice that certain amounts have been paid by him in discharge of debt due to the Paraspara Uthavi Nidhi. In view of the said reply, the plaintiff has come forward with above suit for recovery. The defendant resisted the suit contending that the execution of Muchalika dated 02.08.2003 is false.
5. According to him the said Muchalika has been created by the plaintiff with the help of others. He would claim that he had repaid a sum of Rs.7,33,087/-, which is over and above the money borrowed and the interest payable. He had also pleaded that the plaintiff has been using the said Paraspara Uthavi Nidhi to charge exorbitant interest by threatening the borrowers. In the written statement it is also stated that the suit has been lodged without the authority of the Paraspara Uthavi Nidhi, as the Paraspara Uthavi Nidhi was disbanded even in the year 2003.
6. On the above pleadings, the learned Principal District Judge, Perambalur framed the following issues.
1.Whether the suit has been filed on the basis of appropriate cause of action?
2.Whether the suit filed by the plaintiff as an individual is maintainable?
3.Whether the defendant is not liable to pay the suit claim to the plaintiff?
4.Whether the plaintiff is legally entitled to the suit claim?
5.Whether the suit filed without filing proper accounts is maintainable?
6.Whether the Muchalika provides cause of action to the plaintiffs?
7.Whether the plaintiff is entitled to decree as prayed for?
8.To what other reliefs, the plaintiff is entitled to?
7. The plaintiff examined himself as PW1 and also examined two other witnesses as PW2 and PW3. The defendant examined himself as DW1 and examined one another witness as DW2. Exs.A1 to A.6 were marked on the side of the plaintiff. Exs.B1 to B21 were marked on the side of the defendant.
8. The learned Principal District Judge of Perambalur, upon a consideration of facts and circumstances of the case as well as the evidence on record concluded that the suit filed by the plaintiff in his individual capacity is not maintainable. The learned Principal District Judge of Perambalur also found that the Muchalika dated 02.08.2003 cannot be said to have been executed in favour of the plaintiff in his individual capacity. Since it is the case of the plaintiff that borrowing is from the Paraspara Uthavi Nidhi, the plaintiff cannot seek recovery of money due to the Nidhi, in his individual capacity. It is an admitted fact that the Paraspara Uthavi Nidhi has been disbanded even in the year 2003.
9. On the above findings, the learned Principal District Judge, Perambalur dismissed the suit. Aggrieved by the said judgement and decree the plaintiff has preferred the above appeal.
10. I have heard Mr.S.V.Jayaraman, learned Senior Counsel appearing for Mr.P.Agilesh, learned counsel for the appellant and Mr.T.S.Sivasubramanian, the learned counsel appearing for the respondent. The following points arise for determination in the appeal:
1.Whether the said Muchalika dated 02.08.2003 is in favour of the plaintiff in his individual capacity?
2.Whether the decree could be granted in favour of the plaintiff on the basis of the alleged admission of borrowings as well as outstanding made by the defendant?
3.Whether the suit as framed is maintainable?
POINT No.1
11. Mr.S.V.Jayaraman, learned Senior Counsel appearing for the appellant inviting my attention to the recital in Ex.A1 Muchalika would contend that Ex.A1 has been executed in favour of plaintiff in his individual capacity. Mr.T.S.Sivasubramanian, learned counsel appearing for the respondent would submit that Ex.A1 has been executed only for borrowing money from the Paraspara Uthavi Nidhi and it cannot be said that it would give the right to the plaintiff to seek recovery of money in his individual capacity.
12. I have gone through the contents of Ex.A1. Ex.A1 reads as follows:
2003Mk; Mz;L Mf!;l; khjk; 2Mk; njjp md;W bjhd;ngh!;nfh nkdpiyg; gs;spapy; eilg;bgw;w fpuhk g;;rhaj;;J ehl;;lhh;fs; bra;j g;rhaj;jpd; Kotpy; vLf;fg;gl;l Kot[ vd;dbtd;why;. bjhd;ngh!;nfh nkdpiyg; gs;spapy; ,a';fp te;j Mrphpah; eyepjpapypUe;J mg;gs;spapy; gzpg;g[hpa[k; Mrphpauhd ehd; (A?mgpnc&fuhah; ,ilepiy Mrphpah;) 1992k; Mz;L Kjy; 2003k; Mz;L Koa fld; bgw;w bjhif mry; tl;o Tljy; bjhif 8.66.087/00 (vl;L MW MW irgh; vl;L VG) ,j;bjhifia 2004Mk; Mz;L Mf!;l; khj ,Wjpf;Fs; jtid Kiwapy; brYj;jp tpLfpnwd; vd;W fPH;fz;l g;rhaj;jhh; Kd;dpiyapYk;. eyepjp g';;Fjhuh; Kd;dpiyapYk; Vw;Wf; bfhz;L ey epjpia elj;jp te;j Mrphpah; I.bghpaehafrhkp mth;fSf;F vGjpf; bfhLj;j mf;hpbkz;l;/@
13. From the above recitals, it is very clear that what has been admitted the borrowing from the Nithi and it contains a promise to repay the nidhi. Though, Mr.S.V.Jayaraman, learned Senior Counsel appearing for the appellant would contend that last two lines of the documents particularly, the following words:
ey epjpia elj;jp te;j Mrphpah; I.bghpaehafrhkp mth;fSf;F vGjpf; bfhLj;j mf;hpbkz;l shows that it is an acknowledgment of liability in favour of the plaintiff in his individual capacity, I am unable to agree. The reading of the entire document would show that the borrowing from the Nidhi is admitted that there is an undertaking to repay the money. It cannot be said that the undertaking is to pay back to the individual. Therefore, Point No.1 is answered against the appellant/plaintiff.
Point No.2
14. It is contended by Mr.S.V.Jayaraman, learned Senior Counsel appearing for the appellant that the defendant in his reply notice dated 24.07.2005 has admitted the borrowings and has claimed that he has repaid certain amounts and that a balance Rs.1,33,000/- is due and payable to the Nidhi. According to the learned Senior Counsel, admission is the best evidence and therefore, the decree could be passed atleast to the extent of admission made i.e. Rs.1,33,000/-.
15. On the other hand, the learned counsel appearing for the respondent would contend that admission of liability at best could be recorded as liability to pay the Nidhi and in the absence of Nidhi as a party to the proceedings, the plaintiff cannot be granted decree for any amount much less for Rs.1,33,000/-. As already stated it is the case of the plaintiff also, that it was the funds of the Nidhi that were advanced to the defendant. It is also the admitted case of the parties that the Nidhi has been disbanded in the year 2003. The plaintiff has not shown that he has been allowed to collect the amount due to the Nidhi. Therefore, the suit at the instance of the plaintiff in the individual capacity in not maintainable. Therefore, in the suit filed by the plaintiff in his individual capacity, there cannot be a decree in favour of Nidhi. Hence, I do not find any reason to accept the the plea of the learned Senior Counsel on the second point also.
Point No.3
16. From the reading of the plaint, it could be seen that it is the case of the plaintiff that money advanced to the defendant belonged to Paraspara Uthavi Nidhi. The suit has been filed by the plaintiff in his individual capacity. The plaintiff does not aver that he has been authorized by the Nidhi to file suit on its behalf. In the absence of any such plea and proof, I am constrained to hold that the suit as framed by the plaintiff in his individual capacity is not maintainable and the Trial Court is justified in rejecting the claim of the plaintiff dismissing the suit.
17. I do not find any material that compels me to interfere with the findings of the Trial Court. Therefore, the appeal is dismissed confirming the judgement and decree dated 30.09.2009 made in O.S.No.13 of 2006 on the file of the Principal District Judge of Perambalur. However, in the circumstances of the case, there shall be no order as to costs.
10.01.2017 Index : Yes/No Internet: Yes/No vk To The Principal District Judge of Perambalur.
R.SUBRAMANIAN,J vk A.S.No.133 of 2010 10.01.2017 http://www.judis.nic.in