Madras High Court

Rev.Daniel G.Rajasekaran vs Dr.R.Selvarajan on 28 March, 2023

                                                                                  S.A(MD).No.776 of 2022

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 28.03.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                            S.A.(MD)No.776 of 2022
                                        and C.M.P(MD)No.11787 of 2022
                     Rev.Daniel G.Rajasekaran    .... Appellant/Appellant/Defendant

                                                              Vs.

                     1.Dr.R.Selvarajan

                     2.S.Prabakaran                    ... Respondents/Respondents/Plaintiffs
                     Prayer :         Second Appeal is filed under Section 100 of Code of Civil
                     Procedure, against the judgment and decree dated 28.07.2022 passed in
                     A.S.No.22 of 2021 on the file of the Additional Sub Court, Madurai,
                     confirming the judgment and decree dated 29.01.2021 passed in O.S.No.
                     371 of 2016 on the file of the Principal District Munsif Court, Madurai.


                                            For Appellant       : Mr.J.Gunaseelan Muthiah

                                            For Respondents     : No appearance


                                                     JUDGMENT

This Second Appeal has been filed challenging the concurrent

findings of the courts below. The defendant in O.S.No.371 of 2016 on the

file of the Principal District Munsif Court, Madurai is the appellant herein.

https://www.mhc.tn.gov.in/judis S.A(MD).No.776 of 2022

2. In the forthcoming paragraphs, the parties are described as per their

litigative status in the suit.

3. The suit was filed by the respondents/plaintiffs for recovery of a

sum of Rs.21,234/- with interest at the rate of 18% per annum till the date of

realization on account of non-payment of transfer fee by the appellant/

defendant, who is a member of Parsn Glen Nestle Apartments Welfare

Society. The appellant/defendant has purchased an apartment in the building

known as Parsn Glen Nestle Apartments, which is managed by the aforesaid

registered society as per the by-laws of the society. Every member shall pay

transfer fee amounting to Rs.10,000/-. Since the appellant/defendant did not

pay the transfer fee as per the by-laws of the society, the respondents/

plaintiffs filed the suit for recovery of money against the appellant/

defendant for the non-payment of the transfer fee together with interest.

4. The appellant/defendant in his written statement denied that he is

liable to pay the transfer fee as claimed in the plaint and he has also stated

that without proper authorization as per the by-laws, the suit has been filed

and therefore the suit is not maintainable.

https://www.mhc.tn.gov.in/judis S.A(MD).No.776 of 2022

5. Before the trial court, the plaintiffs produced 15 documents, which

were marked as Ex.A.1 to Ex.A15. On the side of the defendant no

document was produced. The issues were also framed by the trial court

based on the pleadings of the respective parties.

6. Admittedly, as per clause-24(k) of the by-laws of the plaintiffs

Society in case of every transfer of a flat by way of sale etc, a minimum

transfer fee of Rs.10,000/- is payable by the member. Admittedly, the

defendant has purchased a flat in the apartment complex but has not paid the

transfer fee of Rs.10,000/- as per clause-24(k) of the by-laws. As seen from

the documents which were marked as exhibits on the side of the plaintiffs,

reminders were also sent to the defendant calling upon him to pay the

transfer fee but despite the same, the defendant has failed to pay the said

amount which has been claimed only based upon the by-laws. Only based

on oral and documentary evidence available on record namely the by-laws

and other exhibits marked on the side of the plaintiffs including the

reminder letter, the trial court has rightly come to the conclusion that the

suit will have to be decreed as prayed for in the plaint. No documentary

evidence was also produced by the defendant to disprove the claim of the

plaintiffs. The by-laws also makes it clear that the President of the Society

https://www.mhc.tn.gov.in/judis S.A(MD).No.776 of 2022

has the overall charge and supervision in respect of administration of the

plaintiffs society, its properties and finances, the same is found in

clause-15(a) of the by-laws. The Secretary of the society shall be

responsible for convening the meetings of the executive committee and

general body of the society. As seen from clause-15(b)(vi), the Secretary

will be the Officer to sue or to be sued on behalf of the plaintiff society.

7. The appellant/defendant has contended in his written statement that

the President is not empowered under the by-laws to depose on behalf of the

plaintiffs society and the Secretary alone has got the said power.

Admittedly, the plaint was signed both by the Secretary as well as the

President of the plaintiffs society and the President of the society deposed

on behalf of the plaintiff society. The trial court has rightly held that there is

no prohibition for the President of the society to depose on behalf of the

society under the by-laws. Therefore, oral evidence let-in by the President of

the society cannot be rejected. It is also to be noted that both the Secretary

as well as the President have signed the plaint and the President is also

having overall charge and supervision in respect of administration of the

plaintiff society as per the by-laws. No evidence has been placed by the

defendant before the trial court to disprove the claim of the plaintiff that the

https://www.mhc.tn.gov.in/judis S.A(MD).No.776 of 2022

defendant is liable to pay the transfer fee as per the by-laws.

8. The lower Appellate Court, namely, the I Additional Subordiante

Court, Madurai, by its judgment and decree dated 28.07.2022 in A.S.N0.22

of 2021 has also rightly confirmed the findings of the trial court by

dismissing the appeal filed by the defendant.

9. This Court on 02.12.2022 had admitted the Second Appeal and has

framed the following substantial questions of law:

i. The plaintiffs violate the bylaw of the association Rule 15 A and B the Secretary alone is empowered person to sue and to be sued in any matter concerning this association. That point failed to consider by Trial Court and First appellate Court.

ii. This case concern the president of Association was filed Civil Suit and also deposed evidence instead of Secretary of the Association. That point failed to consider by Trial Court and First appellate Court.

10. The substantial questions of law formulated by this Court are

https://www.mhc.tn.gov.in/judis S.A(MD).No.776 of 2022

answered against the appellant/defendant as they have been rightly

considered by the courts below based on oral and documentary evidence

available on record. There are no debatable issues of fact or law involved in

this Second Appeal, which require any interference by this Court under

Section 100 C.P.C.

9. For the foregoing reasons, there is no merit in this Second appeal

and the same is dismissed. No costs. Consequently, connected

miscellaneous petition is closed.

28.03.2023 Index : Yes/No Internet: Yes/No CM

1.The Additional Sub Court, Madurai,