Andhra Pradesh High Court - Amravati
Dr.M. Babu Rao vs P.V.S.V. Prasada Rao on 29 August, 2024
APHC010248172000
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
THURSDAY ,THE TWENTY NINETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 2499/2000
Between:
1. DR.M. BABU RAO, S/O LATE SATYANARAYANA EX. PRINCIPAL OF
FISHERIES SCIENCE COLLEGE, MUTTUKURU R/O FLAT NO.204,
SURABHI ENCLAVE ARLT. ROAD NO.14, BANJARA HILLS,
2. DR. PEETHAMBARA PANDA, W/O LATE GONESWARA PANDA
EMPLOYEE R/O BIG BRAHMANA STREET, KASIBUGGA, PALASA
(M), SRIKAKULAM DIST.
3. M. LAVANYA LATHA, W/O. LATE DR. M. BABU RAO
4. M. KRISHNA RAO, S/O. LATE DR. M. BABU RAO
5. M. ASHA RAMANI, D/O. LATE DR. M. BABU RAO ABOVE ARE
R/O.204, SURABHI ENCLAVE, ROAD NO.-14, BANJARA HILLS,
HYDERABAD. A-3TO5 ARE BROUGHT ON RECORD AS LRS OF
DECEASED A-1 AS PER
...APPELLANT(S)
AND
1. P V S V PRASADA RAO, S/o Krishna Rao Dept. of Envoronment,
Science Andhra University, Vizag R/o Sivajipalem, D.No.9-7-21/9,
Visakhapatnam
...RESPONDENT
Appeal against the Decree and Judgment dated 24-7-2000 passed in
O.S.No.1 of 1998 on the file of the District Judge, Srikakulam
IA NO: 1 OF 2000(CMP 18090 OF 2000
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings including execution in pursuance of the Judgment
and decree dt; 24-7-2000 passed in O.S.No.1 of 1998 on the file of the District
Judge, Srikakulam, pending disposal of the appeal
IA NO: 1 OF 2006(ASMP 1232 OF 2006
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
vacate the interim stay granted in CMP No. 18090/00 in AS No. 2499/00 dt.
27-09-00
IA NO: 1 OF 2012(ASMP 83 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
condone the delay of 118 days caused in resubmitting the ASMPSR No.
11946 of 2011 and pass
IA NO: 2 OF 2012(ASMP 84 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
condone the delay of 64 days caused in filing the petition to set aside
abatement caused due to non filing of petition to bring the L.Rs on record in
the interest of justice.
IA NO: 3 OF 2012(ASMP 476 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
set aside abatement of the above regular appeal as the against the 1st
appellant in the interest of justice
IA NO: 4 OF 2012(ASMP 477 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
bring the petitioners 1 to 3 herein on record as the LRs of the deceased 1st
appellant Dr.M.Babu Rao and implead them as appellants 3 to 5 in the aabove
regular appeal in the interest of justice
Counsel for the Appellant(S):
1. HARI SREEDHAR
Counsel for the Respondent:
1. .
2. P RADHAKRISHNA
The Court made the following:
Judgment:
The appeal is filed against the judgment and decree dated 24-7-2000 in
O.S.No.1 of 1998 passed by the learned District Judge, Srikakulam,
Srikakulam District. The suit is filed for recovery of Rs.6,07,297/- from the
defendants, consisting of Rs.3,07,297/- said to have been invested by the
plaintiff and Rs.3,00,000/- towards the services rendered by him to bring the
aqua culture project into existence in the plaint schedule property.
2. The case of the plaintiff as narrated in the plaint, in brief, is as
follows:
It is pleaded that the plaintiff, who is a post-graduate in Marine Biology
and who took a Doctorate degree in Environmental Science from Andhra
University, is working as Research Associate in the Department of
Environmental Science, Andhra University besides as a consultant in aqua
farm as he is an expert in that field. The 1st defendant, a former Principal of
Fisheries Science College, Agricultural University, Muthukuru in Nellore
District, is a friend of the plaintiff due to academic connections.
The 2nd defendant is a friend of the 1st defendant and he was introduced to the
plaintiff by the 1st defendant. In pursuance of the proposal from the
1st defendant, the plaintiff and the defendants 1 and 2 agreed to take up
a project of aqua culture in the plaint schedule land belonging to the
2nd defendant situate at Nagarampalli - Sivarampuram Villages of
Vajrapukotturu Mandal in Srikakulam District. They agreed to take the land on
lease for 15 years. The plaintiff completed the earth work by 11-6-1996 in
spite of several hurdles. In July 1996, the plaintiff and the defendants entered
into a Memorandum of Understanding. By February 1997, the work was
completed. The defendants never visited the project site or a partnership
agreement or a lease deed was executed. The whole work proceeded on the
basis of Memorandum of Understanding. The total project costed
Rs.8,75,764/-. Out of it, Rs.3,07,297/- was paid by the 2nd defendant i.e.
Rs.1,89,000/- by way of direct payment to the plaintiff and Rs.1,18,267/- spent
through Mr. Madan, brother of the 2nd defendant. The 1st defendant paid
Rs.2,60,700/- from April, 1996 to April, 1997. The plaintiff incurred an
expenditure of Rs.3,07,297/-. But, the attitude of 2nd defendant was hostile
and he started creating problems. Then, on 14-11-1997, the plaintiff offered to
withdraw from the project, provided he was paid Rs.3,07,000/- and another
amount of Rs.3,00,000/- towards his fee for investing his expertise. But, they
have not done so. In these circumstances, the plaintiff was forced to file the
suit for recovery of Rs.6,07,297/-.
3. Brief averments in the written statement filed by the 2nd defendant,
which was adopted by the 1st defendant, are as follows:
It is admitted that the plaintiff is a technical person and consultant in
aqua farm. The plaintiff and defendants mutually executed a Memorandum of
Understanding on 12-7-1996. As per the terms and conditions therein, the
land of the 2nd defendant in an extent of Ac.22.82 cents in Survey Nos.740/1
to 7 at Sivarampuram Village was given on lease for carrying on activities of
aqua culture initially for a period of 15 years at the rate of Rs.500/- per acre
per annum. The plaintiff and defendants agreed to invest equally for the said
project which was estimated at Rs.13,00,000/-. The 1st defendant paid in all
Rs.2,60,700/- to the plaintiff, whereas the 2nd defendant paid Rs.2,15,000/- to
the plaintiff directly and Rs.1,40,000/- through his brother Madan Mohan
Panda. In total, the 2nd defendant paid Rs.3,55,000/- to the plaintiff. So, the
total amount paid by the defendants 1 and 2 to the plaintiff is Rs.6,15,700/-.
The plaintiff, with a view to have a wrongful gain, manipulated the accounts.
But, as far as the 2nd defendant is concerned, he has wrongly shown
Rs.3,07,267/- instead of Rs.3,55,000/-. Besides that, the 2nd defendant spent
Rs.4,98,934=50 ps. for the project work on the site when the plaintiff
abandoned the same. The earth work of the project started on 08-4-1996 and
was completed on 12-7-1997. In these circumstances, the plaintiff is not
entitled for any refund of the money and the claim of the plaintiff is unjust.
4. Based upon the pleadings of both the parties, the trial Court framed
the following issues for trial:
(1) Whether the plaintiff has incurred expenditure of Rs.3,07,297/- in
the project work as alleged in the plaint is true ?
(2) Whether there was an understanding between the plaintiff and the
defendants to pay Rs.3,00,000/- towards fees to the plaintiff for designing;,
execution and technical skill and formulating and preparing the project is
true?
(3) Whether the plaintiff has got cause of action to file this suit ?
(4) Whether the expenditure shown by the plaintiff in the statement to
a tune of Rs.8,75,764/- is false as contended by the defendants is true and
correct ?
(5) Whether the plaintiff has shown his investment only on paper
without actually paying any amount to the project towards his share and
investment, as contended by the defendants, is true ?
(6) Whether the plaintiff is entitled to a decree for Rs.6,07,297/-
against the defendants with interest at 12% per annum with a charge on the
project and site and costs of the suit as prayed for in the plaint ? and
(7) To what relief ?
5. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 6 are
examined and Exs.A-1 to A-8 are marked. On behalf of the defendants,
D.Ws.1 to 5 are examined and Exs.B-1 to B-104 are marked. Exs.X-1 and
X-2 are also marked.
6. After completion of the trial and hearing the arguments of both sides,
the trial Court decreed the suit in part with proportionate costs, directing the
defendants to pay to the plaintiff a sum of Rs.2,04,000/- with interest at the
rate of 12% per annum from the date of suit till the date of realization, while
dismissing the rest of the suit amount without costs.
7. During the pendency of the appeal before this Court, the
1st appellant/1st defendant died and the appellants 3 to 5 are brought on
record as legal representatives of the deceased 1st appellant as per the orders
of the Registrar (Enquiries), dated 27-02-2012 made in A.S.M.P.No.477 of
2012.
8. Heard Sri G. Sai Narayana Rao, learned counsel on behalf of Sri Hari
Sreedhar, learned counsel for the appellants and Sri P. Radha Krishna,
learned counsel for the respondent.
9. The learned counsel for appellants would contend that the judgment
and decree of the trial Court is contrary to law and he would further contend
that the trial Court ought to have dismissed the suit on the ground that the
statement of account furnished by the plaintiff with regard to the expenditure
incurred is not supported by receipts and vouchers. The learned counsel for
appellants would further contend that the trial Court has committed a grave
error in decreeing the suit on the basis of expenditure arrived by it on its own
assumptions though it is not supported by any receipts or vouchers. He would
further contend that in the absence of any term relating to payment of fee to
the plaintiff in the Memorandum of Understanding, the claim of the plaintiff
towards Rs.1,00,000/- as fee by way of supervisory charges as ordered by the
trial Court is totally illegal and untenable and he would further contend that the
judgment and decree passed by the trial Court has to be set aside and the
appeal may be allowed.
10. Per contra, the learned counsel for respondent/plaintiff would
contend that on appreciation of the entire evidence on record, the learned trial
Judge rightly decreed the suit in part with proportionate costs and there is no
need to interfere with the finding given by the learned trial Judge.
11. Now, the points for determination in the appeal are:
(1) Whether the trial Court is justified in decreeing the suit for an
amount of Rs.2,04,000/- with interest at the rate of 12% per
annum from the date of suit till the date of realisation ? and
(2) To what extent ?
12. Point No.1: Whether the trial Court is justified in decreeing the suit
for an amount of Rs.2,04,000/- with interest at the rate of 12% per annum from
the date of suit till the date of realisation ?
The undisputed facts are that the plaintiff and defendants 1 and 2
mutually executed a Memorandum of Understanding on 12-7-1996 and as per
the terms and conditions therein, the land in an extent of Ac.22.82 cents of the
2nd defendant situate in Survey Nos.740/1 to 7 of Sivarampuram Village was
given on lease for carrying on the activities of aqua culture initially for a period
of 15 years at the rate of Rs.500/- per acre per annum. The further
undisputed facts are that both the parties agreed to invest equally for the said
project which was estimated at Rs.13,00,000/-. According to the plaintiff, the
1st defendant invested Rs.2,60,700/- in the business, the same is not at all
disputed by the 1st defendant. According to the 1st defendant, he paid an
amount of Rs.2,60,700/- to the plaintiff, the same is not at all disputed by the
plaintiff. As per the case of the plaintiff, the 2nd defendant paid Rs.3,07,297/-
but as per the case of 2nd defendant, he paid Rs.3,55,500/-. As per the case
of the plaintiff, the total project costs Rs.8,75,764/-. It is the specific case of
the appellants that both parties in the suit executed a Memorandum of
Understanding under Ex.A-1 on 12-7-1996 and the same is not at all disputed
by both sides.
13. To prove the case of the plaintiff, the plaintiff himself examined as
P.W.1. P.W.1 testified that himself and both the defendants came to
an understanding to develop aqua culture project at Sivarampuram Village in
the lands of 2nd defendant situate at Sivarampuram Village of Nagarampalli
Panchayat. The plaintiff further asserted that he volunteered to place his
services and knowledge on free of cost. One Madan Mohan Panda, who is
the brother of 2nd defendant, supervised the clearance of the site as per his
suggestion and the 2nd defendant paid Rs.45,000/- through him towards his
investment and he invested Rs.25,000/-. He also spent some amount for
earth work which was paid to the owners of tractors for an amount of
Rs.25,000/- and he also spent an amount of Rs.39,000/- towards clearance of
the site. P.W.1 further testified that the 1st defendant originally paid
Rs.1,00,000/- in two instalments and later he paid Rs.1,65,000/- in two
instalments and in total, the 1st defendant paid Rs.2,65,000/- and in total, the
2nd defendant invested Rs.1,63,000/-. As per his own admissions, he never
issued any receipts. He further testified that the 2nd defendant further paid
Rs.1,89,000/- in cash to him directly. In cross-examination, he admits that he
received total amount of Rs.2,60,700/- from the 1st defendant and he received
total amount of Rs.3,07,267/- from the 2nd defendant. He further admits that
Ex.A-1 Memorandum of Understanding does not speak about payment of any
amount for the investment of his expert knowledge. The evidence of P.W.1
testifies that he voluntarily placed his services and knowledge on free of cost.
Furthermore, another admission made by him is that Ex.A-1 does not speak
about payment of any amount for the investment of his expert knowledge.
14. P.W.2 deposed in his evidence that he worked as Supervisor under
the plaintiff at the site during that period and the scope of his supervision was
feeding water into the tanks, supply of feed to the tanks and supervising the
work of manual labour as directed by the plaintiff.
15. As per the evidence of P.W.3, he is the owner of a tractor and in the
year 1996, the plaintiff engaged his tractor and also 5 more tractors belonging
to their people for formation of fishing tanks at Sivarampuram Village of
Srikakulam District. He further asserted that each tractor was engaged on
a condition of paying Rs.650/- per day towards hire charges.
16. As per the evidence of P.W.4, he had a small scale industry at
Visakhapatnam and their products are fiber glass and the plaintiff obtained
15 or 16 sluice gates with fiber glass prepared through him.
17. The plaintiff also relied on the evidence of P.Ws.5 and 6. As per the
evidence of P.W.5, himself and his son worked as watchmen in the prawn
project undertaken by the plaintiff and the defendants at Sivarampuram
Village from the beginning for 19 months. As per the evidence of P.W.6,
he did earth work at the site and there are about 20 or 25 more persons in
their team and about 3 years back, their team did earth work at Sivarampuram
Village for forming prawn tanks.
18. The plaintiff relied on Ex.A-1 Memorandum of Understanding
executed by both the parties, the same is undisputed. Ex.A-1 is the basis for
instituting the suit before the trial Court. The common law rule of contract is
that a man is bound is perform the obligation which he has undertaken and
cannot claim to be excused by mere fact that the performance has
subsequently become impossible. As noticed supra, none of the parties
disputed the terms and conditions in Ex.A-1.
19. It is the case of 1st appellant that he invested an amount of
Rs.2,60,700/- towards his investment, the same is undisputed by the plaintiff.
One Madan Mohan Panda, D.W.1, is the brother of 2nd defendant. As per his
evidence, the plaintiff did not invest any amount towards his share and
he spent the amounts received by him from the defendants 1 and 2 and
purchased some 2nd hand articles worth of Rs.1,00,000/- and he did not spend
the remaining balance and kept it with him only. It is a fact that to prove their
case, no worthy evidence is placed by the defendants. As per the evidence of
D.W.1, an amount of Rs.1,87,000/- and odd was spent towards hire charges
for tractors and at about Rs.18,000/- was spent for battas of the drivers.
As per his own admission in cross-examination, the payments made by the
2nd defendant by date-wise are not entered in Ex.B-1 Ledger Book.
20. D.W.2 is the 2nd defendant. As per his evidence, he is the
2nd defendant in the suit and he paid Rs.3,55,000/- towards his investment on
different occasions through demand drafts and by way of cash and those
payments are shown in his written statement. As per the evidence of D.W.2,
as the plaintiff has expert knowledge in aqua culture, they took him into
a partnership but the plaintiff's knowledge had not become useful and the
plaintiff did not invest any amount in the project and the plaintiff was not
regularly visiting the project but he used to make supervisory visits and he
used to leave the site to its fate. As per his evidence, the plaintiff never
maintained any account for the project and never furnished any copy of it to
them.
21. The material on record reveals that the estimated expenditure on
the project till the plaintiff and defendants 1 and 2 continued the project work
is Rs.6,72,000/- i.e. by the date the plaintiff left the project. The amount that
contributed by the 1st defendant is Rs.2,60,700/- and the amount contributed
by the 2nd defendant is Rs.3,07,267/-, in total an amount of Rs.5,67,967/-,
which was rounded off to Rs.5,68,000/-. Therefore, on considering the entire
evidence on record, the trial Court rightly came to the conclusion that the
additional investment made by the plaintiff is Rs.1,04,000/-. The bald
contention of the appellants that the plaintiff did not invest any amount at any
point of time is not at all proved by the defendants. Therefore, the said bald
contention of the appellants that the plaintiff did not make any investment in
the project is untrue. For the aforesaid reasons, the plaintiff is entitled to an
amount of Rs.1,04,000/- from both the defendants.
22. The respondent/plaintiff claimed an amount of Rs.3,00,000/-
towards his fee for designing, execution and technical skill in formulating the
project. It was contended by the learned counsel for appellants that the
plaintiff agreed to invest his expertise knowledge on free of cost. It is relevant
to say about the admissions made by the plaintiff in his evidence itself that
there was a clear admission made by P.W.1 that he volunteered to place his
services and knowledge on free of cost. Furthermore, another admission
made by the plaintiff is that Ex.B-1 does not speak about the payment of any
amount for the investment of his expert knowledge. As stated supra, Ex.A-1 is
the basis for filing the suit by the plaintiff. As per Ex.A-1, both the parties
agreed to invest money and share the profits and they agreed to take the land
on lease for 15 years. Basically, there is no evidence on record to show that
the plaintiff is entitled to an amount of Rs.3,00,000/- towards expert fee.
Furthermore, Ex.A-1 does not reveal that the plaintiff is entitled to an amount
of Rs.3,00,000/- or any amount towards his expert fee. Admittedly, there is no
understanding in Ex.A-1 Memorandum of Understanding that the plaintiff is
entitled for any remuneration towards his fee for investment and expertise.
Therefore, the finding of the learned trial Judge that the plaintiff is entitled to
an amount of Rs.1,00,000/- towards his expert fee and towards his
supervisory charges has to be interfered during the appeal proceedings and
the said finding given by the learned trial Judge that the plaintiff is entitled to
an amount of Rs.1,00,000/- towards his expert fee is liable to be set aside.
But, as stated supra, the plaintiff is entitled to an amount of Rs.1,04,000/- as
ordered by the trial Court.
23. It was contended by the learned counsel for appellants that the
plaintiff has to file the suit for dissolution of firm and rendition of accounts and
the suit transaction is governed by Partnership Laws. Admittedly, the
business of the plaintiff and defendants 1 and 2 is not a partnership concern.
It is not the case of both the parties that the investment of the plaintiff and the
defendants 1 and 2 in the business is a partnership concern and the same is
liable to be registered. Therefore, I am unable to accept the contention put-
forth by the learned counsel for appellants that both the parties are governed
by Partnership Laws. As stated supra, the suit is instituted based on Ex.A-1
Memorandum of Understanding. Therefore, the present suit is maintainable.
24. For the aforesaid reasons, I am of the considered view that the
plaintiff is entitled to an amount of Rs.1,04,000/- from the appellants/
defendants and the plaintiff is also entitled to an interest of 12% per annum on
Rs.1,04,000/- from the date of suit till the date of decree and thereafter at 6%
per annum on Rs.1,04,000/- till the date of realization.
25. Point No.2:- To what extent ?
In the result, the appeal suit is partly allowed, by modifying the judgment
and decree dated 24-7-2000 in O.S.No.1 of 1998 passed by the trial Court as
the plaintiff is entitled to an amount of Rs.1,04,000/- (Rupees one lakh and
four thousand only) from the appellants 2 to 5, who are the 2 nd defendant and
legal representatives of the deceased 1st defendant in the appeal, and the
plaintiff is also entitled to interest of 12% per annum on Rs.1,04,000/- from the
date of suit till the date of decree and thereafter at 6% per annum till the date
of realization. Pending applications, if any, shall stand closed. Considering
the circumstances of the case, each party do bear their own costs in the
appeal.
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
2. Two CD Copies
HIGH COURT
VGKRJ
DATED:29/08/2024
ORDER
