Kerala High Court
Kalesh vs 1. Chendamangalam Vala Samajam ... on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
OP(C) NO. 360 OF 2023
AGAINST THE ORDER DATED 15.11.2022 IN I.A.NO.4 OF 2022 IN OS
81/2016 OF MUNSIFF COURT, NORTH PARAVUR
PETITIONERS/PETITIONERS/DEFENDANTS:
1 KALESH
AGED 34 YEARS, S/O.VARGHESE,
PULIKKAL HOUSE, KIZHAKKEPURAM KARA,
CHENDAMANGALAM P.O., CHENDAMANGALAM VILLAGE,
PARAVUR TALUK, ERNAKULAM DISTRICT, PIN - 683512
2 LEETHU KALESH, AGED 30 YEARS
W/O.KALESH, PULIKKAL HOUSE, KIZHAKKEPURAM KARA,
CHENDAMANGALAM P.O., CHENDAMANGALAM VILLAGE,
PARAVUR TALUK, ERNAKULAM DISTRICT, PIN - 683512
BY ADVS.
K.M.SREEKANTH
PADMINIDEVI.C
PREMLAL V.P
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976
VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE,
PARAVUR TALUK, ERNAKULAM, PIN - 683512
2 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976,
REPRESENTED BY ITS PRESIDENT T B BHATHARN
S/O BALAN, THIKOOTHATIL HOUSE, VADAKKUMPURAM KARA,
CHENDAMANGALAM VILLAGE, ERNAKULAM, PIN - 683512
3 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976,
REPRESENTED BY ITS VICE PRESIDENT K K MANILAL
S/O.KOCHUKUMARAN, KAKKANATHURUTH HOUSE,
VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE,
OP(C) NO. 360 OF 2023
2
ERNAKULAM, PIN - 683512
4 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976,
REPRESENTED BY ITS SECRETARY. P S MURUKESHAN
S/O SUBRAMANIYAN, PATHRAKADAVIL HOUSE,
VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE,
ERNAKULAM, PIN - 683512
5 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976,
REPRESENTED BY ITS JOINT SECRETARY K P DINAKARAN
S/O PAPPU, KAKKANATHURUTH HOUSE, VADAKKUMPURAM
KARA, CHENDAMANGALAM VILLAGE,
ERNAKULAM, PIN - 683512
6 CHENDAMANGALAM VALA SAMAJAM REG. NO. ER 352/1976.
REPRESENTED BY ITS TREASURER, K N SUBRAMANIYAN
S/O NARAYANAN, KOONAMPARAMBIL HOUSE,
VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE,
ERNAKULAM, PIN - 683512
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 360 OF 2023
3
JUDGMENT
The original petition is filed challenging Ext.P1 order
passed in I.A.No.4 of 2022 in O.S.No.81 of 2016 by the
Court of the Munsiff, North Paravur. The petitioners are
the defendants and the respondents are the plaintiffs in
the suit.
2. The relevant background facts leading to Ext.P1
order are:
(i) The respondents have filed the suit against the
petitioners for a decree for recovery of money. The
petitioners have resisted the suit through Ext.P6 written
statement.
(ii) The parties went to trial.
(iii) The petitioners filed I.A.No.4 of 2022 (Ext.P2) to
issue summons to the witnesses to summon certain
documents. The application was resisted by the
respondents through Ext.P3 counter statement.
(iv) The court below, by the impugned Ext.P1 order,
dismissed Ext.P2 application.
OP(C) NO. 360 OF 2023
(v) Ext.P1 is manifestly wrong and unsustainable in
law. Hence, this original petition.
3. Heard Sri. Sreekanth K.M., the learned counsel
for the petitioners on admission.
4. The sole point is, whether there is any illegality
in Ext.P1 order.
5. The suit is filed by the respondents for a decree
of recovery of money. The petitioners have filed Ext.P6
written statement denying the entire transaction.
6. When the parties went to trial, the petitioners
raised a contention in Ext.P2 application that the
respondents have been conducting chitty business
without proper licence. Accordingly, they filed Ext.P2
application to summon the licence of the 1 st respondent
Samajam from the District Registrar Office, Ernakulam.
The application was opposed by the respondents.
7. The court below, by the impugned Ext.P1 order,
has passed the following order:
"5. Suit is for money based on a small savings scheme.
OP(C) NO. 360 OF 2023
The contention of the defendant is that plaintiff has no authority
to conduct the savings scheme, since these transaction are not
registered under the Chitty Act and Indian Chits Fund Act. The
specific case of the plaintiff is that the business conducted by the
plaintiff is not a chitty business. It is purely a savings scheme.
Hence it is not registered under the Chits Fund Act or Chitty Act.
Chitty transaction and advancing money is entirely different. In
this case the petition is filed to call for the records from the
assistant chitty inspector and district registrar. 3 rd witness is the
defendant himself. With respect to 3rd witness the court has no
objection. As far as the summoning of the 1st witness is concerned
PW1 deposed that transaction is not a chitty transaction hence it
was not registered. This point was now crystal clear. There is no
need to summon the assistant chitty inspector to ascertain the
fact that whether the chitty was registered or not, since the
transaction is not a chitty transaction. With respect to the 2 nd
witness, for producing which documents the witness to be
summoned is not mentioned. The case of the plaintiff is that the
plaintiff is conducting a small savings scheme. The defendant
filed this petition to summon the district registrar to produce the
registration of the samajam as well as the audit report of the
samajam. PW1 clearly deposed before the court that the samajam
stopedp to conduct savings scheme 2 years before and more over,
samajam has no registration. Moreover money lender is not
estopped from filing a suit for realisation of money, even if he is
carrying out business, without license. Absence of license will
only attract penal consequences. Hence, there is no need to
summon the 2nd witness, district registrar to prove the case of the
defendant."
8. A reading of the above order and the specific
OP(C) NO. 360 OF 2023
defence of the respondents in Ext.P6 written statement
would substantiate that the petitioners' endeavor at this
stage, in a suit of the year 2016, is nothing; but an
intention to protract the determination of the suit. I do
not find any bonafides or merit in the attempt of the
petitioners in Ext.P2 application. In the above
background, I do not find any justifiable ground
warranting interference with Ext.P1 order under Article
227 of the Constitution of India.
The original petition fails and is resultantly
dismissed.
Sd/-
C.S.DIAS, JUDGE
AS
OP(C) NO. 360 OF 2023
APPENDIX OF OP(C) 360/2023
PETITIONERS' EXHIBITS:
EXHIBIT1 THE CERTIFIED COPY OF THE ORDER IN
I.A.NO.4/2022 IN O.S.NO.81/2016 ON THE
FILES OF THE MUNSIFF COURT, NORTH
PARAVUR.
EXHIBIT2 THE TRUE COPY OF THE PETITION IN I.A.
NO.4/2022 IN O.S.NO.81/2016 ON THE FILE
OF THE MUNSIFF COURT, NORTH PARAVUR
EXHIBIT3 THE TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT IN I.A.NO.4/2022 IN
O.S.NO.81/2016 ON THE FILE OF THE MUNSIFF
COURT, NORTH PARAVUR
EXHIBIT4 THE CERTIFIED COPY OF THE PROOF AFFIDAVIT
AND DEPOSITION OF PW1 IN O.S.NO.81/2016
ON THE FILE OF THE MUNSIFF COURT, NORTH
PARAVUR.
EXHIBIT5 THE TRUE COPY OF PLAINT IN O.S.NO.81/2016
OF MUNSIFF COURT, NORTH PARAVUR.
EXHIBIT6 THE TRUE COPY OF WRITTEN STATEMENT IN
O.S.NO.81/2016 OF MUNSIFF COURT, NORTH
PARAVUR.
