Madras High Court
R.P.Mohammed vs Kulasekharam Chamber Of Commerce ... on 22 April, 2021
S.A.(MD)No.409 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.409 of 2010
and
M.P.(MD)No.2 of 2010
R.P.Mohammed ... Appellant
Vs.
Kulasekharam Chamber of Commerce and Industry,
Rep. by its Secretary,
Door No.7-29, A, Kulasekharam,
Thiruvattar Village,
Kalkulam Taluk,
Kanyakumari District. ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree in A.S.No.88 of 2007, on the file of the First
Additional Sub Court, Nagercoil, Camp at Padmanabhapuram, dated
20.01.2009, confirming the judgment and decree in O.S.No.233 of 2004, on the
file Principal District Munsif Court, Padmanabhapuram, dated 27.06.2006.
For Appellant : Mr.D.Godwin
For Respondent : Mr.V.M.Bala Mohan Thampi
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S.A.(MD)No.409 of 2010
JUDGEMENT
Heard the learned counsel on either side.
2.The appellant in this second appeal is the defendant in O.S.No.233 of
2004 on the file of the Principal District Munsif Court, Padmanabhapuram. The
case of the plaintiff is that it is a society registered under Tamil Nadu Societies
Registration Act, 1975. The appellant is a member of the society. The society
floated a savings scheme for the benefit of its members. The appellant joined
as a member of the scheme. On 02.12.1997, the appellant had taken a loan of
Rs.85,600/- and on 04.01.1999, he had taken a further loan for a sum of
Rs.55,200/-. In all the appellant had borrowed a total sum of Rs.1,40,800/-. The
appellant had repaid only to the tune of Rs.1,33,120/-. There was a shortfall of
Rs.46,880/-. Therefore, after issuing Ex.A.5/notice dated 05.01.2000,
O.S.No.233 of 2004 came to be filed to recover the said amount. On the side
of the plaintiff, as many as 28 documents were marked. The defendant
examined himself as D.W.1 and marked Ex.B.1.
3.The learned Trial Munsif vide judgment and decree dated 27.06.2006
decreed the suit and directed the appellant herein to pay a sum of Rs.65,176/-
together with interest at the rate of 6% on Rs.46,880/- from the date of decree
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S.A.(MD)No.409 of 2010
till the date of payment. Questioning the same, the appellant herein filed
A.S.No.88 of 2007 on the file of the First Additional Sub Court, Nagercoil.
The First Appellate Court by judgment and decree dated 20.01.2009 dismissed
the appeal and confirmed the judgment and decree passed by the Trial Court.
Challenging the same, this second came to be filed.
4.The second appeal was admitted on the following substantial question
of law:-
“(a) Whether the plaintiff society registered under the Tamil
Nadu Society's Registration Act is entitled to do money lending
business or chit business without authority?”
5.When the matter was taken up for arguments, this second appeal was
listed along with another second appeal namely., S.A.(MD)No.228 of 2012
filed by one Padmakaran, who was also a member of the plaintiff society. The
learned counsel for the appellant would submit that both Padmakaran as well as
the present appellant had availed loan in the very same month and both of them
had paid only 27 installments. As far as Padmakaran is concerned, the suit
claim was restricted to the balance amount and as far as the principal sum is
concerned, no interest was claimed from the said Padmakaran. As regards the
appellant/R.P.Mohmmed is concerned, the plaintiff society had chosen to claim
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S.A.(MD)No.409 of 2010
interest also . He would also point out that the plaintiff society being a society
registered under Tamil Nadu Societies Registration Act, 1975, cannot conduct
any money lending or chit business.
6.Per contra, the learned counsel for the respondent would submit that
the liability of the defendant/appellant has been carefully quantified in the
plaint and the Courts below have rightly upheld the suit claim. He would point
out that no substantial question of law arises for consideration and pressed for
dismissal of the second appeal.
7.I carefully considered the rival contentions and perused the evidence
on record. It appears to be true that the suit claim against Padmakaran does not
include the pre-suit interest competent. Be that as it may, the question is
whether the present appellant can take advantage of the same. The claim
against Padmakaran and the claim against the appellant are based on distinct
causes of action. The present appellant cannot take advantage of the omission
on the part of the plaintiff-society to make a claim for interest on Padmakaran.
The appellant's case rests on the agreement between the appellant and the
society. There is no dispute that the suit scheme was introduced after the
general body members passed resolution vide Ex.A.9. The scheme was to be in
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S.A.(MD)No.409 of 2010
force till 31.03.2000. The appellant had availed loan from the society in two
installments. He had agreed to clear the same by paying 30 installments of
Rs.6,000/- each. That would come to Rs.1,80,000/-. That was the scheme
condition. In other words, for having taken the loan of Rs.1,40,800/-, the
appellant was to pay a sum of Rs.1,80,000/- in all. Thus even as per the terms
of the scheme, the appellant was to pay a sum of Rs.39,200/- towards interest.
There is no dispute that the appellant had actually repaid only a sum of
Rs.1,33,120/-. Since the scheme contemplated payment of Rs.1,80,000/-, the
plaintiff rightly quantified the liability at Rs.46,880/- as on 31.03.2000. The
plaintiff had correctly calculated the appellant's liability and laid the suit
accordingly. The Courts below did not commit any error in upholding the suit
claim and fastening the decreetal liability on the appellant herein. As I have
already stated, failure on the part of the plaintiff-society to make the correct
claim on Padmakaran cannot enure to the benefit of the appellant herein. This
is because they are two independent causes of action.
8.The substantial question of law raised in this appeal is whether the
respondent-society can conduct such a finance business. The learned counsel
for the appellant would draw my attention to the relevant provisions of the
Tamil Nadu Societies Registration Act. I must necessarily sustain the
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S.A.(MD)No.409 of 2010
contention of the learned counsel for the appellant. A society registered under
Tamil Nadu Societies Registration Act cannot obviously conduct such a chit
business. There appears to be breach of the provisions of the statute. But then,
the appellant having voluntarily joined the savings scheme as a member and
also availed loan from the society cannot now raise such a contention. Even, if
I answer the substantial question of law in favour of the appellant, still that will
not in any way whittle down his liability. The appellant may of course
complain to the Registrar of societies and ask for cancellation of the
registration of society and the Registrar of the society will have to take a call in
the matter. The answer to the substantial question of law framed in the appeal
cannot in any way have a bearing on the appellant's decreetal liability. Even
while answering the substantial question of law in favour of the appellant, the
impugned judgment and decree passed by the Courts below are sustained and
the second appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
22.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A.(MD)No.409 of 2010
To:
1.The First Additional Sub Court,
Nagercoil,
Padmanabhapuram.
2.The Principal District Munsif Court,
Padmanabhapuram.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.409 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.409 of 2010
22.04.2021
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