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Union of India, Through its Secretary, Ministry of Defence, New Delhi and Another Vs. K. Subramanian - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberS.A.No. 1915 of 2003
Judge
AppellantUnion of India, Through its Secretary, Ministry of Defence, New Delhi and Another
RespondentK. Subramanian
Excerpt:
.....the witnesses, d.ws.1 and 2 examined on behalf of the appellants have admitted that they have collected subscription from the officers and paid the same to the second appellant. in view of clauses 36 and 37 of the contract ex.a.1 and admission by d.ws.1 and 2, it is the duty of the second appellant to collect the subscription and pay the same to the respondent and in fact, the subscription has been collected by d.w.1 and handed over to the second appellant. d.w.1 also admitted even after termination of contract, channels were telecasted for more than 12 months. therefore, the courts below have rightly held that it is the duty of the second appellant to collect the subscription and pay the same to the respondent and the t.v. channels were telecasted even after termination of contract.....
Judgment:

(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 28.02.2002 made in A.S.No.147 of 2001 on the file of the Principal District Court, Tirunelveli, confirming the Judgment and decree dated 11.04.2001, made in O.S.No.133 of 1998 on the file of the II Additional Subordinate Court, Tirunelveli.)

1. This Second Appeal has been filed against the judgment and decree dated 28.02.2002 made in A.S.No.147 of 2001 on the file of the Principal District Court, Tirunelveli, confirming the Judgment and decree dated 11.04.2001, made in O.S.No.133 of 1998 on the file of the II Additional Subordinate Court, Tirunelveli.

2. The appellants are the defendants, who partly succeeded in both the Courts below. The respondent is the plaintiff.

3. Facts of the case:

(i) The respondent filed a suit in O.S.No.133 of 1998 before the II Additional Subordinate Court, Tirunelveli, against the appellants, claiming a sum of Rs.1,88,227.50 towards subscription amount, value of equipments and Fax Machine. The respondent is running a business of erecting Cable T.V. Network under the name and style of 'M/s.Equal Marketers' at Tirunelveli. The second appellant entered into an agreement with the respondent on 03.09.1996, which came into force on 16.09.1996 for providing Cable T.V. Network to the residential houses and Naval establishment. As per the Contract, the respondent is entitled to receive a sum of Rs.7,360/- per month towards subscription amount. The second appellant has to collect the amount from the Officers and to pay the same to the respondent. The respondent rendered satisfactory service to the second appellant for seven months. The second appellant did not collect the subscription and pay the same to the respondent. Hence, the respondent issued a notice, dated 09.04.1997, terminating the Cable T.V. Network Contract, which was received by the second appellant on 11.04.1997, but he did not send reply and did not pay the amounts. Therefore, the respondent again issued notice dated 22.08.1997 through his Advocate. The second appellant sent a reply containing false averments.

(ii) At the request of the second appellant, the respondent supplied a new Kilburn Fax Machine and the second appellant was using the same. The second appellant did not return the said machine and did not pay the value of the Fax Machine, which was valued at Rs.18,750/-. The respondent has installed the articles worth Rs.1,01,157.50 for telecasting the channels. The appellants are liable to pay a sum of Rs.88,320/- towards subscription charges and the appellants are liable to pay a total sum of Rs.2,08,227.50. The appellants have paid a sum of Rs.20,000/-. After deducting the said amount, the appellants are liable to pay a sum of Rs.1,88,227.50. Therefore, the respondent filed the suit claiming a sum of Rs.1,88,227.50 towards subscription amount, value of equipments and Fax Machine together with interest at 12% p.a., from 29.04.1998 till realisation.

(iii) The appellants have filed written statement denying the various averments made in the plaint and submitted that the suit is not maintainable, as the respondent did not issue notice under Section 80 C.P.C. The contract is for one year i.e., from 16.09.1996 to 16.09.1997. The agreement is not enforceable and it is not a valid agreement. The respondent did not provide channels as agreed upon and therefore, the contract was terminated. The respondent himself has admitted that he has terminated the contract in April 1997 itself. Therefore, he is not entitled to subscription for entire 12 months. The appellants have informed the respondent to take back the Fax Machine as well as all the equipments installed by him. Therefore, the respondent is not entitled to pay the value of the same. There is an arbitration clause in the agreement and therefore, the suit is not maintainable. As per the agreement, the respondent has to collect the subscription from the subscribers and the second appellant is not liable to collect the subscription and pay the same to the respondent and the appellants denied the payment of Rs.20,000/- as advance to the respondent and prayed for dismissal of the suit.

(iv) Based on the pleadings, the learned II Additional Subordinate Judge, Tirunelveli, framed necessary issues.

(v) Before the Trial Court, the respondent examined himself as P.W.1 and marked 11 documents as Exs.A.1 to A.11. The appellants examined two witnesses as D.Ws.1 and 2 and marked two documents as Exs.B.1 and B.2.

(vi) The learned II Additional Subordinate Judge, Tirunelveli, considering the pleadings, oral and documentary evidence and the arguments of the learned counsel for the parties, partly decreed the suit holding that the respondent is entitled to subscription amount of Rs.88,320/- together with interest at 12 % p.a. from 29.04.1998 till 11.04.2001 and thereafter, 6% p.a. till realisation. The learned II Additional Subordinate Judge, Tirunelveli, dismissed the suit in respect of other reliefs.

(vii) Against the said judgment and decree, dated 11.04.2001, the appellants have filed A.S.No.147 of 2001, before the Principal District Court, Tirunelveli.

(viii) The learned Principal District Judge, Tirunelveli, framed necessary points for consideration and independently considering all the pleadings, oral and documentary evidence, held that even though the appellants denied having paid a sum of Rs.20,000/- as advance, the respondent admitted having received Rs.20,000/-. The learned II Additional Subordinate Judge did not take this amount into account while granting decree. Therefore, the learned Principal District Judge, Tirunelveli, granted decree of Rs.68,320/- together with interest at 12% p.a. from the date of plaint i.e., 29.04.1998 till 28.02.2002 and thereafter, at 6% p.a., till the date of realisation.

4. Against the said judgment and decree, dated 28.02.2002, the appellants have filed the present second appeal.

5. At the time of admitting the second appeal, this Court framed the following substantial questions of law:

1. Whether the Courts below is right in decreeing the suit based on the service contract?

2. Whether the lower appellate Court is correct in holding that notice under Section 80 C.P.C. is to inform the Government/Department about the proposed suit and exchange of pre-suit notice is substantive compliance?

3. Whether the lower appellate Court is wrong in holding that the contract between the parties was not in force on the date of filing of the suit to invoke the arbitration clause?

4. Whether the lower appellate Court is right in ignoring the clause 48 of Ex.A.1 to decide the disputes under the Arbitration Act?

5. Whether the Courts below are right in decreeing the suit when there is no obligation under the service agreement for collection of subscription amount by the appellants?

6. The learned counsel for the appellants contended that the Courts below erred in entertaining the suit and failed to see that the suit is not maintainable, as the respondent failed to comply with the provision of Section 80 C.P.C. In the application filed by the respondent under Section 80(2) C.P.C., no notice was given to the appellants and the appellants were not heard before allowing the said application. The lower Courts failed to see that the respondent did not telecast the T.V. channels for entire 12 months. The Courts below failed to see that there is an arbitration clause in the agreement and therefore, the suit is not maintainable. The Courts below failed to see that it is for the respondent to collect the subscription from the individual Officers and the second appellant is not liable to collect the same and to pay the subscription to the respondent and therefore, he prayed for allowing the second appeal.

7. Per contra, the learned counsel for the respondent submitted that the Courts below have considered all the materials on record, the judgments relied on by the respondent and held that the suit is maintainable and that the respondent provided service for entire 12 months, even though the agreement was terminated by the respondent in the month of April 2007 itself. The learned counsel for the respondent further submitted that as per Clauses 36 and 37 of the Contract, the second appellant is liable to collect the subscription from the individual Officers and pay the same to the respondent. There is no error in the reasoning of the Courts below. The respondent had filed petition under Section 80(2) C.P.C., to dispense with issue of notice as contemplated under Section 80(1) C.P.C., and the Trial Court had ordered the same. No question of law arises for consideration in the second appeal much less substantial question of law and therefore, she prayed for dismissal of the second appeal.

8. In support of her submissions, the learned counsel for the respondent relied on the following judgments, which were already relied on by the counsel for the respondent before the Trial Court.

(i) AIR 1992 Madhya Pradesh 242 [Shri Kailash Chandra Jain Vs. State of Madhya Pradesh and another]

(ii)AIR 1992 Delhi 286 [Master Vinay Kumar Vs. The Central Board of Secondary Education and another]

9. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.

10. As far as the contention of the learned counsel for the appellants that the suit is not maintainable due to failure of the respondent to comply with the provisions of Section 80 C.P.C. is concerned, it is not sustainable for the simple reason that the respondent has issued three pre-suit notices, which were marked as Exs.A.2, A.4 and A.7. For Ex.A.2, the appellant did not send any reply. The respondent sent reply Exs.A.6 and A.9, dated 30.08.1997 and 25.09.1997. Section 80 C.P.C. is meant only to put the Government and the Government Department on notice before filing of any suit and obtaining interim orders. In the present case, the respondent had issued 3 notices Exs.A.2, A.4 and A.7. The second appellant has sent reply through his Advocate to the counsel for the respondent by Exs.A.6 and A.9. Further, the respondent has filed a petition under Section 80(2) C.P.C., to dispense with the issuance of notice as per Section 80(1) C.P.C. The Courts below have considered the said fact and also the judgments relied on by the learned counsel for the respondent and rejected the contention of the appellants. There is no infirmity in the said reasoning.

11. As far as the arbitration clause is concerned, the lower appellate Court has taken note of the fact that the agreement had come to an end due to efflux of time. Further, it is seen that in the reply Exs.A.6 and A.9, the appellants have not stated about the arbitration clause. Therefore, the learned Principal District Judge has correctly held that the suit is maintainable and the appellants are not entitled to seek the matter referred to arbitration. The contention of the learned counsel for the appellants that the second appellant is not liable to collect the subscription amount and to pay the same to the respondent and it is for the respondent to collect the money, has no force. As per Clauses 36 and 37 of the Contract, the second appellant has to collect the amount and to pay the respondent. Further, the witnesses, D.Ws.1 and 2 examined on behalf of the appellants have admitted that they have collected subscription from the Officers and paid the same to the second appellant. In view of Clauses 36 and 37 of the Contract Ex.A.1 and admission by D.Ws.1 and 2, it is the duty of the second appellant to collect the subscription and pay the same to the respondent and in fact, the subscription has been collected by D.W.1 and handed over to the second appellant. D.W.1 also admitted even after termination of contract, channels were telecasted for more than 12 months. Therefore, the Courts below have rightly held that it is the duty of the second appellant to collect the subscription and pay the same to the respondent and the T.V. Channels were telecasted even after termination of contract in April 2007, for a full period of 12 months. In the circumstances, the substantial questions of law framed are answered against the appellants.

12. In the result, the second appeal is dismissed. The judgment and decree dated 28.02.2002, made in A.S.No.147 of 2001, modifying the judgment and decree, dated 11.04.2001, made in O.S.No.133 of 1998, is confirmed. No costs.


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