Madras High Court

Mr.T.V.Kumarasamy vs Uoi Represented By General Manager on 11 November, 2024

Author: R. Hemalatha

Bench: R.Hemalatha

                                                                                 S.A.No.195 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 11.11.2024

                                                      CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                               S.A.No.195 of 2018 and
                                               C.M.P.No.5032 of 2018

                     Mr.T.V.Kumarasamy                                            ... Appellant
                                                         Vs.

                     1. UOI Represented by General Manager,
                        Heavy vehicles Factory, A Unit of AVNL,
                        Avadi, Chennai.
                     (R1 is amended as per the order of this Court
                     made in CMP no.5289/2024, dated 05.03.2024)

                     2. C.G.Sivalingam                                        ... Respondents

                     Prayer : Second Appeal filed under Section 100 r/w. Order 41 of CPC,
                     1908 against the decree and judgment dated 21.02.2017 passed in
                     A.S.No.110/2015, on the file of the XVIII Additional Judge, City Civil
                     Court, Chennai, upholding the decree and judgment dated 19.02.2013
                     passed in O.S.No.8817/2008, on the file of the VIII Assistant Judge, City
                     Civil Court, Chennai.


                                   For Appellant : Mr.N.Nagu Sah
                                   For R1      : Mr.A.Murughan,
                                                 Additional Central Government
                                                 Standing Counsel



                     Page 1 of 12

https://www.mhc.tn.gov.in/judis
                                                                                       S.A.No.195 of 2018

                                                       JUDGMENT

The appellant is the second defendant in O.S.No.8817/2008 on

the file of the VIII Assistant Judge, City Civil Court, Chennai. The first

respondent, the Union of India, represented by the General Manager,

Heavy Vehicles Factory, Avadi filed the above suit for recovery of a sum

of Rs.1,00,000/- from the defendants 1 and 2 together with interest at the

rate of 18% per annum.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present second appeal would also be indicated.

3. The case of the plaintiff in a nutshell is as follows :

The first defendant was appointed as Chargeman Grade II

(OP/Tech/Mech) in the plaintiff's Heavy Vehicles Factory, Avadi, during

2004-2005. As per the procedure and practice, he was sent to Ordnance

Factory Institute of learning, Nagpur to undergo training for ten months

with effect from 28.03.2005. A Bond, dated 24.03.2005 was executed by

https://www.mhc.tn.gov.in/judis

the first defendant in favour of the plaintiff to the effect that the first

defendant would serve the Government of India for a period of five years

after the expiry of two year probation period. As per the Bond, in the

event of refusal or failure to serve the organization for the mandatory

period, the first defendant or his surety would be jointly and severally

liable to refund a sum of Rs.1,00,000/- or the amount paid to him towards

pay and allowances during the period of training, whichever is less. The

first defendant after undergoing ten months training at Nagpur, did not

join duty as per the proceedings No.02317/HVFTS/2005-06/OFILAMJ,

dated 09.01.2006. However, he sent a fax message on 18.01.2006, stating

that he was suffering from kidney ailment and has to undergo an

operation. Since he did not join duty thereafter also the plaintiff was

constrained to initiate proceedings against the first defendant under Rule

14 of CCS (CC & A) Rules, 1965 on 07.05.2007. It also came to the

knowledge of the plaintiff that during the training period the first

defendant was issued with an advice note for his misbehavior vide letter

number OFILAJ/9017/DISC/05-06, dated 30.09.2005 by the Training

Institute Director, Ambajhari, Nagpur. As per the terms of the Bond

https://www.mhc.tn.gov.in/judis

agreement, dated 24.03.2005 the first and second defendants are jointly

and severally liable to pay a sum of Rs.1,00,000/- to the plaintiff and

hence the suit.

4. Since the plaintiff did not take any steps to serve summons

on the first defendant, the suit was dismissed as against the first

defendant.

5. The suit was resisted by the second defendant on the

following grounds:

i. The suit is not maintainable.

ii. The second defendant did not execute any Bond as alleged by the

plaintiff.

iii. The second defendant did not commit any breach of contract and

therefore he is not liable to pay a sum of Rs.1,00,000/-.

6. On the basis of the above pleadings, the trial Court framed

the following issues:

i. Whether the plaintiff is entitled to get the suit amount?

https://www.mhc.tn.gov.in/judis

ii. To what relief the plaintiff is entitled?

7. In the trial Court, one witness was examined on the side of

the plaintiff and Ex.A1 to Ex.A8 were marked. No oral or documentary

evidence was adduced on the side of the defendants.

8. After full contest, the learned VIII Assistant Judge, City

Civil Court, Chennai, vide his decree and judgment dated 19.02.2013,

decreed the suit filed by the plaintiff on the following grounds:- :

i. It is clear from the Bond dated 24.03.2005 that the defendants have

agreed to refund a sum of Rs.1,00,000/- or total amount paid

towards pay and allowances during the training period to the first

defendant, in the event of the first defendant leaving the service.

ii. The liability of the first and second defendant is joint and several

and therefore they are liable to pay the said amount to the plaintiff.

iii. The plaintiff has also issued a letter to the first defendant (Ex.A3)

during the period of training about his un-authorized absence and

had in fact requested him to join duty immediately.

iv. The first defendant had sent his reply dated 18.01.2006 (Ex.A4)

https://www.mhc.tn.gov.in/judis

stating that due to kidney ailment, he could not report to duty.

v. The plaintiff had thereafter sent a notice to the defendants 1 and 2

to pay a sum of Rs.1,00,000/- or total amount paid towards pay and

allowances during the training period to the plaintiff.

vi. Despite receipt of the said notice by the defendants, they did not

come forward to pay the amount. As per the terms of the Bond

dated 24.03.2005, both the defendants 1 and 2 are jointly and

severally liable to pay a sum of Rs.1,00,000/- together with interest

at 9% per annum.

9. Aggrieved over the decree and judgment passed by the trial

court, the second defendant filed an appeal in A.S.No.110/2015, before

the XVIII Additional Judge, City Civil Court, Chennai. The learned

XVIII Additional Judge after analysing the oral and documentary

evidence adduced on both sides, upheld the findings recorded by the trial

court vide his decree and judgment dated 21.02.2017, as against which

the present second appeal is filed.

10. The second appeal is admitted by this Court on 19.03.2018

https://www.mhc.tn.gov.in/judis

on the following substantial questions of law:

i. Whether the Appellate Court was right in law in dismissing

the first appeal on merits while it records the absence of the

appellant and his counsel on the hearing date of the Appeal

suit without notice eventhough there is an express bar

provided under the explanation to Sub Rule 1 to Rule 17 of

Order 41 of C.P.C.?

ii. Whether the Courts below were right in law in decreeing the

suit against the appellant / Guarantor while it had dismissed

the suit as against the 1st defendant / Principal Debtor?

iii. Whether the Courts below were right in law in holding the

validity of Ex.A2-Agreement in the absence of any evidence

by the plaintiff for proving the execution of Ex.A2 while the

appellant had seriously disputed the execution of Ex.A2-

Agreement by him?

11. Heard Mr.N.Nagu Sah, learned counsel for the appellant

and Mr.A.Murughan, learned Additional Central Government Standing

https://www.mhc.tn.gov.in/judis

Counsel for the respondents 1 and 2.

12. Mr.N.Nagu Sah, learned counsel for the appellant

contended that the first Appellate Court ought not to have disposed of the

case without hearing the appellant's arguments. He relied on the decision

of the Hon'ble Supreme Court in Ghanshyam Dass Gupta Vs. Makhan

lal reported in (2012) 8 SC 745 and contended that as per Rule 17 (1) of

Order 41 of th code of civil procedure, if the appellant does not appear

when the case was called for hearing, the Court has to dismiss the appeal.

In the instant case, the first Appellate Court has dismissed the appeal

merely based on the arguments advanced by the respondent/plaintiff. He

therefore prayed for remitting the case back to the Appellate Court for

fresh consideration. He would also contend that when the Bond clearly

speaks that a sum of Rs.1,00,000/- or the amount spent towards pay and

allowances to the first defendant which ever is less, has to be paid, the

plaintiff has not adduced sufficient documentary evidence to show the

actual amount spent on the first defendant.

13. Per contra, Mr.A.Murughan, learned Additional Central

https://www.mhc.tn.gov.in/judis

Government Standing Counsel contended that the Bond is very clear in

respect of payment of Rs.1,00,000/- payable by the first defendant to the

plaintiff and both the Courts below concluded that the defendants 1 and 2

are jointly and severally liable to pay the said amount.

14. A perusal of the Judgement of the first Appellate Court

shows that the first Appellate Court even without hearing the arguments

of the appellant dismissed the appeal based on the arguments advanced

on the side of the respondent/plaintiff. In the decision in Ghanshyam

Dass Gupta Vs. Makhan lal (cited supra), it has been held thus:

"6. We are, in this case, called upon to consider

whether the High Court was justified in deciding the appeal

on merits in the absence of any representation on behalf of

the appellant, in view of the Explanation to Order 41 Rule

17(1) C.P.C. The said provision is given below for easy

reference:

"17. Dismissal of appeal for appellant's default:- (1) Where on the day fixed, or on any

https://www.mhc.tn.gov.in/judis

other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may take an order that the appeal be dismissed.