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P.R. Ayya Pattar Vs. Attupurath Manakkal, Karnavan and Manager, Vasudevan Bhattathiripad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in52Ind.Cas.938
AppellantP.R. Ayya Pattar
RespondentAttupurath Manakkal, Karnavan and Manager, Vasudevan Bhattathiripad and anr.
Cases ReferredVenkataratnom v. Ranganayakamma
Excerpt:
.....petition of, ashing that objections be recorded, effect of--'kuri' transaction--security, duty of bidder to furnish--time, whether of essence of contract. - - neither narayanan somayajipad nor the plaintiff acted up to the agreement and it could not, therefore, be said that they were entitled to the kuri amount which the former had purchased at auction it is a well-known rule of kuri transactions that the amount which is payable to the bidder is to be paid to him only on his furnishing security for future instalments, and i do not understand how it can be said that even if the bidder failed to furnish security for the future instalments, he would still be entitled to the money. be reasonable to bold that the plaintiff became entitled to the money even though he failed to furnish..........code applied to this case and, therefore, the plaintiff must be held to he entitled to the money claimed by him. we have been pressed by a recent decision of the full bench, venkataratnom v. ranganayakamma 48 ind. cas. 270 : (1918) m.w.n. 599 : 8 l.w. 292 : 35 m.l.j. 335, as to the scope of this rule. there a petition of claim was put in but, it appears, too late, and the executing court passed an order to the effect that the objections made by the' claimant would be notified to the bidders. the full bench held that that amounted to an order under rule 63, order xxi, and, therefore, a suit brought more than one year after the date of that order was barred. i do not think, however, that this decision, though it goes very far, covers the present case. in the present case the.....
Judgment:

Abdur Rahim, J.

1. The case arose out of a kuri transaction. The kuri was started by the 1st defendant, 1st respondent in the appeal, for Rs. 10,500 divided into 21 tickets of Rs. 500 each. One Narayanan Somayajipad had one ticket. He paid in 5 instalments and purchased the kuri amount at the 6th instalment sometime in 1913. His bidding was for a sum of Rs 6,565, He was entitled to get that amount on furnishing security for future instalments, that is, for 15 more instalments, amounting altogether to Rs. 7,500. It appears that he could not find security and he pledged his kuri receipts for the amounts which he had already paid, it may be also what he was to get by his purchase; which is the correct interpretation of the transaction does not make any difference as to the point we have to decide. The present plaintiff appellant who advanced money to Narayanan Somayajipad, afterwards instituted a suit in order to realise the money and before judgment attached the money which, according to him, was payable to Narayanan Somayajipad by the 1st defendant. It is alleged that the defendant preferred an objection under Order XXI, Rule 58, of the Code of Civil Procedure to the attachment, but in the event, the attachment was made absolute and the property attached was sold and bought by appellant. In this suit, the appellant seeks to recover the amount of the kuri, both principal and interest, from the defendant.

2. It is proved that Narayanan Somyajipad did not furnish security within 30 days of the auction as required by the agreement. Repeated demands were made for security and even the plaintiff did not offer the security at least for 4 years. The learned Subordinate Judge has held that, under these circumstances, the plaintiff was not entitled to the money and decided against him.

3. The first point raised before us by Mr. Ananthakrishna Aiyar is as to the alleged agreement under which, it is said, the defendant agreed to hold the money for the plaintiff and invest it for him in proper securities and give him interest. The Subordinate Judge has dealt fully with this question in his judgment and has found that this allegation is not true, and I have not the least doubt that that finding is correct. It will be superfluous-to add anything to that part of the first Court's judgment.

4. Then it was argued that under the karar the plaintiff was entitled to the money in the hands of the defendant and to reasonable interest on such amount. But one of the provisions of the karar is that the purchaser would be entiled to the money only on tendering proper security to the satisfaction of the starters. If the bidder made default and the amount of the bid was not found sufficient, then the deficit with interest at 12 per cent would be recoverable from the purchaser at the discretion of the starter of the kuri. This it is quite clear, negatives the case of the appellant. Neither Narayanan Somayajipad nor the plaintiff acted up to the agreement and it could not, therefore, be said that they were entitled to the kuri amount which the former had purchased at auction It is a well-known rule of kuri transactions that the amount which is payable to the bidder is to be paid to him only on his furnishing security for future instalments, and I do not understand how it can be said that even if the bidder failed to furnish security for the future instalments, he would still be entitled to the money. I should say, generally speaking and apart from the conduct of the parties in this case, that time in such transactions is the very essence of the contract. It may be that the defendants, by making a demand for security even after the expiry of one month - specified in the karar, consented to extend the time, but it would not at all. be reasonable to bold that the plaintiff became entitled to the money even though he failed to furnish security for 4 years after the sale at auction. I think that the Subordinate Judge was quite right in holding that the plaintiff had no claim against the defendants at all.

5. Then it was urged by Mr Anantha-krisbna Aiyar that rule 63, Order XXI, of the Civil Procedure Code applied to this case and, therefore, the plaintiff must be held to he entitled to the money claimed by him. We have been pressed by a recent decision of the Full Bench, Venkataratnom v. Ranganayakamma 48 Ind. Cas. 270 : (1918) M.W.N. 599 : 8 L.W. 292 : 35 M.L.J. 335, as to the scope of this rule. There a petition of claim was put in but, it appears, too late, and the executing Court passed an order to the effect that the objections made by the' claimant would be notified to the bidders. The Full Bench held that that amounted to an order under rule 63, Order XXI, and, therefore, a suit brought more than one year after the date of that order was barred. I do not think, however, that this decision, though it goes very far, covers the present case. In the present case the defendants in their petition did not ask for their claim or allegations to be investigated at all. Though they set out their objections in an affidavit filed along with the petition, the only thing they asked for in the petition by way of prayer was that the objections might be recorded, and the Court passed an order to the effect that the objections were recorded. In the Full Bench case, there was a prayer to investigate the claim although the petition was filed too late. It may be that the Court in that case did not in so many words reject the petition but the learned members of the Full Bench construed what happened as amounting to a negating of the right of the claimant and as such the order against him was held to come under rule 63, Order XXI. But it would be going too far to say that the rule applies to a case where a person, while putting in a petition setting out his objectors, does not ask the Court to investigate his claim but expressly prays that his objections might be recorded. Whether the executing Court was justified in merely recording his objections, it is unnecessary to consider. But it could not be said that there was any order against the petitioner, because the petitioner did not, ask for any order and the Court did not profess to pass any order on the merits of the petition All that the Court was asked to do was to record the objections and the objections were accordingly recorded. I am, therefore, of opinion that rule 63 of Order XXI does not apply.

6. It was argued, I may mention, that we ought to relieve the plaintiff against the penal provision of the stipulation. But really no question of penalty arises because the plaintiff was not entitled to any money at all.

7. The appeal fails and must be dismissed with costs.

Spencer, J.

8. I agree.


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