B.L. Ragini Vs. Lohia Machines Ltd. - Court Judgment

Excerpt:
a) civil procedure code, 1908 - order 1 rules 3 & 9--petitioner applying for a scooter ' & paying deposit money--petitioner giving up company's h.o. situated at kanpur & praying for decree against its regional office situated at bangalore--trial court dismissing the suit on ground of deleting its h.o.--held, respondents h.o. being not necessary party, suit entitled to be decreed.; '....the law is very clear in so far as the privity of contract is between the plaintiff and the agent at bangalore, the liability in this case does devolve on the principal. more importantly however, it is necessary to emphasise that the principal is always liable for the acts of the agent and under these circumstances, the suit itself was virtually indefensible. ' ; b) -- section 34 -- in suit for recovery of money against defendant, plaint not specifying the grant of interest in prayer clause--held, plaintiff entitled to statutory interest @ 6% p.a.--see also order 1 rules 3 & 9 of c.p.c.; c) -- section 35 -- award of costs in money suits, held, to be normal costs unless special costs are awarded specifically,--see also order 1 rules 3 & 9 of c.p.c. & karnataka civil rules of practice., 1967, rules 99 & 100.; where a court were to pass an order or decree directing the award of interest and is silent with regard to the rate, it would by implication mean that the rate prescribed namely 6% p.a. is to be applied. on this analogy, where the court awards costs the normal costs quantified by the office will be reflected in the decree. if there are special circumstances which would justify the award of higher costs or exemplary costs, a specific case has to be made out to this effect and a specific prayer should be reflected in the pleadings asking for such costs in which case, the court would quantify the higher costs awarded. it the court does not quantify such costs despite such a prayer, it would be implicit that only normal costs have been awarded by the court provided the order reflects this and it will be presumed that the prayer for higher costs has been rejected. ; d) pleadings - filing of plaints without proper prayer clauses by counsel--held, it was advocate's essential obligation to prepare pleadings according to law & also of the court office to scrutinise them for avoiding serious difficulties.; there are times when this would frustrate the relief and it is therefore very necessary that hereinafter the offices of this court as also the trial courts pay special attention to the checking of the pleadings for purposes of ascertaining whether the prayer clauses both final as also interim are correctly drafted out. if this has no been done, an objection shall be noted and the learned advocate be requested to correct the error. ; e) karnataka civil rules of practice, 1957 - rules 99 & 100--award of cost in civil proceedings ought to be quantified by the courts & special costs to be awarded specifically--if not so awarded, costs deemed to have been refused. ; f) karnataka high court rules, 1959 - ch.xiv rules 2 & 3--transmission or records to trial courts on dismissal of appeals etc., for default--court issued guidelines for transmitting records without waiting for filing of applications for restoration, request by counsel & soforth, unless a specific direction from the court obtained for their retention - industrial disputes act (14 of 1947) section 10(2-a) (1)(d): [subhash b.adi, j] dispute regarding transfer policy sastri award in the matter transfer policy - bipartite settlements - acceptance of terms of settlement by the unions transfer of employee is a part of service condition transfers are made in pursuance of the settlement arrived at between the union and the bank -reference made by the government mechanically, without there being any dispute with regard to transfer policy, when there is already a settlement - propriety of challenge as to held, from the order of reference it is clear that, the union wants an adjudication on the question of formulation of specific transfer policy. transfer is an incidental to the service, and it is prerogative of the management, there cannot be any imposition of particular formula in the matter of transfer, however, insofar as the employees of the banks are concerned, who are party to all india bank employees association and other employees of the association, they have already entered into a settlement and they are bound by sastri award. union has not only accepted the settlement, but has also declared that it is bound by the terms of the settlement and settlement would be in force till it is terminated or till the next settlement is arrived between the parties. when there is a binding settlement, can there be any other transfer policy other than what is agreed by the party? when the records and the materials were placed before the government, government without looking into it cannot mechanically refer the issue for adjudication without even prima facie considering as to whether the dispute exists or apprehended. existence of dispute or apprehension of a dispute is paramount consideration for seeking reference of the same to the industrial adjudication. if there is a settlement between the parties and which is binding and if it is not covered with any fraud, misrepresentation, concealment, then the industrial dispute does not exist.-further held, no doubt, courts are slow in exercise of discretionary power under article 226 of the constitution of india in the matter of interference with the reference order. however, if the court finds that there exists no dispute, there is no reason to refer the dispute for industrial adjudication, which will ultimately result in futile exercise. when there is policy in the matter of transfer, there is not question of any issue which requires adjudication in the matter of transfer policy. hence, seeking formulation of transfer policy does not arise. allowing the industrial tribunal to adjudicate the said issue would be futile exercise, particularly when the transfer is a prerogative of an employer subject to certain exceptions and it is not for the court to interfere with such matters. - it is a dear obligation on the part of the learned advocates that when it comes to the question of prayer clauses, that the relief claimed be very clearly and correctly set out. 5. this is precisely the type of situation that has arisen in the present case. 9. lastly, in all those cases where the appeal courts or this court have occasion to dismiss the case for default, non-prosecution or the like, the office shall communicate the order in normal course wherever this has to be done and shall also return the records called for from the lower court along with such communication.orderm.f. saldanha, j.1. i have heard the petitioner's learned advocate. the respondent is served and is unrepresented. the petitioner's learned advocate demonstrates to me that there is absolutely no dispute on facts in this case that the petitioner had booked a scooter and paid amount of rs. 500-00 which the company i.e. defendant-1 was liable to refund since the booking was cancelled. the suit was undefended and in order to dispose of the same expeditiously, the plaintiff's learned advocate deleted original defendant-1 which was the company which is located at kanpur. this is perhaps understandable. the difficulty of serving d-1 would have only delayed the disposal of the proceeding. petitioner's learned advocate clarifies that d-1 is represented in bangalore city it self in so far as the regional office of the limited company is located here and that the 2nd defendant is admittedly also the dealer for this region. his contention therefore is the d-2 is synonymous with defendant-1.2. the only ground on which the learned trial judge has dismissed the suit is that the liability to refund was that of defendant=1 namely the company and that since d-1 was deleted, the proceeding cannot survive against d-2 as no decree can be passed against the 2nd defendant. i am completely in agreement with the submission canvassed by the petitioner's learned advocate that this order is wholly and completely erroneous. what the learned trial judge has over-looked is the fact that the office located at bangalore is the regional office of the very limited company and that therefore, there is no difference between d-1 and d-2. on these special facts, it was quite unnecessary for d-1 to have been made a party-defendant at all. secondly, even assuming that d-2 was in the role of an agent, the law is very clear in so far as the privity of contract is between the plaintiff and the agent at bangalore, the liability in this case does devolve on the principal. more importantly however, it is necessary to emphasise that the principal is always liable for the acts of the agent and under these circumstances, the suit itself was virtually indefensible.3. the order passed by the trial court is accordingly set-aside. the suit is decreed with interest at the rate of 6% p.a. all through. the officer shall accordingly draw up the decree. the plaintiff-petitioner shall also be entitled to costs of the suit. the c.r.p. succeeds. no order as to costs in this proceeding.4. it has been brought to the notice of this court that certain difficulties arise as a result of incorrect practices being followed while drafting of the pleadings, to the office. it is a dear obligation on the part of the learned advocates that when it comes to the question of prayer clauses, that the relief claimed be very clearly and correctly set out. this is a requirement of law and a procedure and is absolutely essential because courts often pass an order in terms of the prayer clause and it leads to post-decisional applications apart from the serious difficulties that arise in the office when the prayer clauses are incorrect. it has been the unhappy experience of this court that in almost 90% of the cases where the records have been called for from the trial court and in an equally high percentage as far as the pleadings in this court are concerned, that the prayer clauses are either incorrect, vague or improperly drafted. there are times when this would frustrate the relief and it is therefore very necessary that hereinafter the offices of this court as also the trial courts pay special attention to the checking of the pleadings for purposes of ascertaining whether the prayer clauses both final as also interim are correctly drafted out. if this has not been done, an objection shall be noted and the learned advocates be requested to correct the error.5. this is precisely the type of situation that has arisen in the present case. the petitioner would have certainly been entitled to interest at a higher rate because this is a commercial transaction but no grounds have been set out in support thereof nor for that matter has the rate of interest been at all specified. there is only a vague prayer for the award of interest again without indicating as to at what rate the interest is leviable up to the date of filing, at what rate up to the date of decision and at what rate thereafter. there are specific legal provisions which provide for all these and the fact that no body has bothered to either look at these provisions or to re-produce them has resulted in a substantial loss to the petitioner. however, since interest has been asked for and the petitioner was entitled to interest, this court is left with no option except to award the rate prescribed under section 34 c.p.c. which is 6%. conversely, i need to observe that in the majority of proceedings indiscriminate averments or prayer clauses are put in asking for interest at 24% or 36% without justifying the grounds on which such interest is either permissible or awardable. in these circumstances, the court will again be right in only awarding the minimum rate that has been provided for.6. a similar situation arises with regard to costs. normally, the officer quantifies the costs but a court would be justified in refusing the prayer where costs have not been asked for. also, following the principle enunciated in the latter part of section 34 c.p.c. where a court were to pass an order or decree directing the award of interest and is silent with regard to the rate, it would by implication mean that the rate prescribed namely 6% p.a. is to be applied. on this analogy, where the court awards costs the normal costs quantified by the office will be reflected in the decree. if there are special circumstances which would justify the award of higher costs or exemplary costs, a specific case has to be made out to this effect and a specific prayer should be reflected in the pleadings asking for such costs in which case, the court would quantify the higher costs awarded. it the court does not quantify such costs despite such a prayer, it would be implicit that only normal costs have been awarded by the court provided the order reflects this and it will be presumed that the prayer for higher costs has been rejected, it has become necessary for this court to clarify this situation both from the point of view of guidelines to the office and to the bar and howsoever elementary these issues may be, having regard to the defaults and the subsequent complications that have been arising it is very necessary that these clarifications be taken note of by the learned members of the bar as also the subordinate judiciary and the court officers.7. the last clarification that is equally necessary particularly from the point of view of the office which is required to deal with various types of situations and orders is that as far as interest, costs, means profits etc. are concerned, irrespective of whether there is a prayer or not, if the order passed by the court is silent with regard to these heads, then it will be taken to mean that the court has refused the same.8. another difficulty which has created considerable problem is in situations where the operative order is silent with regard to the award of costs and the court merely quantifies the advocates fees at a prescribed amount. where the court is of the view that special costs or exemplary costs are to be awarded, it should say so in which case while drawing up the decree the office will specify that amount under the overall head of costs. it would not be correct to merely quantify the advocate's fees because this would lead to a contradiction in so far as the court having expressed silence with regard to the head of costs which includes advocate's fees, a mere statement that the advocate's fees is quantified at a particular amount would not entitle the office to induce that amount under the head of costs, the normal rule being that unless costs are specifically awarded they are presumed to have been refused.9. lastly, in all those cases where the appeal courts or this court have occasion to dismiss the case for default, non-prosecution or the like, the office shall communicate the order in normal course wherever this has to be done and shall also return the records called for from the lower court along with such communication. the office shall not retain those records on the assumption that restoration applications may be moved or for that matter, on the application or request of any body who may state that necessary proceedings are being taken out for recall, restoration etc., if the order is not to be communicated and if the records are to be retained, the concerned party or the learned advocate shall be required to obtain a specific direction from the court on the basis of which alone the office shall be obliged to act:in view of the importance of these guidelines both to the subordinate courts and the offices concerned, the registrar general shall circulate a copy of this order to each of these forums.

Judgment:
ORDER

M.F. Saldanha, J.

1. I have heard the petitioner's learned Advocate. The respondent is served and is unrepresented. The petitioner's learned Advocate demonstrates to me that there is absolutely no dispute on facts in this case that the petitioner had booked a scooter and paid amount of Rs. 500-00 which the Company i.e. defendant-1 was liable to refund since the booking was cancelled. The suit was undefended and in order to dispose of the same expeditiously, the plaintiff's learned Advocate deleted original defendant-1 which was the Company which is located at Kanpur. This is perhaps understandable. The difficulty of serving D-1 would have only delayed the disposal of the proceeding. Petitioner's learned Advocate clarifies that D-1 is represented in Bangalore City it self in so far as the regional Office of the Limited Company is located here and that the 2nd defendant is admittedly also the dealer for this region. His contention therefore is the D-2 is synonymous with defendant-1.

2. The only ground on which the Learned Trial Judge has dismissed the suit is that the liability to refund was that of defendant=1 namely the Company and that since D-1 was deleted, the proceeding cannot survive against D-2 as no decree can be passed against the 2nd defendant. I am completely in agreement with the submission canvassed by the petitioner's learned Advocate that this order is wholly and completely erroneous. What the learned trial Judge has over-looked is the fact that the Office located at Bangalore is the regional Office of the very Limited Company and that therefore, there is no difference between D-1 and D-2. On these special facts, it was quite unnecessary for D-1 to have been made a party-defendant at all. Secondly, even assuming that D-2 was in the role of an agent, the law is very clear in so far as the privity of contract is between the plaintiff and the agent at Bangalore, the liability in this case does devolve on the principal. More importantly however, it is necessary to emphasise that the principal is always liable for the acts of the agent and under these circumstances, the suit itself was virtually indefensible.

3. The order passed by the Trial Court is accordingly set-aside. The suit is decreed with interest at the rate of 6% p.a. all through. The Officer shall accordingly draw up the decree. The plaintiff-petitioner shall also be entitled to costs of the suit. The C.R.P. succeeds. No order as to costs in this proceeding.

4. It has been brought to the notice of this Court that certain difficulties arise as a result of incorrect practices being followed while drafting of the pleadings, to the Office. It is a dear obligation on the part of the learned Advocates that when it comes to the question of prayer clauses, that the relief claimed be very clearly and correctly set out. This is a requirement of law and a procedure and is absolutely essential because Courts often pass an order in terms of the prayer clause and it leads to post-decisional applications apart from the serious difficulties that arise in the Office when the prayer clauses are incorrect. It has been the unhappy experience of this Court that in almost 90% of the cases where the records have been called for from the Trial Court and in an equally high percentage as far as the pleadings in this Court are concerned, that the prayer clauses are either incorrect, vague or improperly drafted. There are times when this would frustrate the relief and it is therefore very necessary that hereinafter the Offices of this Court as also the Trial Courts pay special attention to the checking of the pleadings for purposes of ascertaining whether the prayer clauses both final as also interim are correctly drafted out. If this has not been done, an objection shall be noted and the learned Advocates be requested to correct the error.

5. This is precisely the type of situation that has arisen in the present case. The petitioner would have certainly been entitled to interest at a higher rate because this is a commercial transaction but no grounds have been set out in support thereof nor for that matter has the rate of interest been at all specified. There is only a vague prayer for the award of interest again without indicating as to at what rate the interest is leviable up to the date of filing, at what rate up to the date of decision and at what rate thereafter. There are specific legal provisions which provide for all these and the fact that no body has bothered to either look at these provisions or to re-produce them has resulted in a substantial loss to the petitioner. However, since interest has been asked for and the petitioner was entitled to interest, this Court is left with no option except to award the rate prescribed under Section 34 C.P.C. which is 6%. Conversely, I need to observe that in the majority of proceedings indiscriminate averments or prayer clauses are put in asking for interest at 24% or 36% without justifying the grounds on which such interest is either permissible or awardable. In these circumstances, the Court will again be right in only awarding the minimum rate that has been provided for.

6. A similar situation arises with regard to costs. Normally, the Officer quantifies the costs but a Court would be justified in refusing the prayer where costs have not been asked for. Also, following the principle enunciated in the latter part of Section 34 C.P.C. where a Court were to pass an order or decree directing the award of interest and is silent with regard to the rate, it would by implication mean that the rate prescribed namely 6% p.a. is to be applied. On this analogy, where the Court awards costs the normal costs quantified by the Office will be reflected in the decree. If there are special circumstances which would justify the award of higher costs or exemplary costs, a specific case has to be made out to this effect and a specific prayer should be reflected in the pleadings asking for such costs in which case, the Court would quantify the higher costs awarded. It the Court does not quantify such costs despite such a prayer, it would be implicit that only normal costs have been awarded by the Court provided the order reflects this and it will be presumed that the prayer for higher costs has been rejected, it has become necessary for this Court to clarify this situation both from the point of view of guidelines to the Office and to the Bar and howsoever elementary these issues may be, having regard to the defaults and the subsequent complications that have been arising it is very necessary that these clarifications be taken note of by the learned members of the Bar as also the subordinate judiciary and the Court Officers.

7. The last clarification that is equally necessary particularly from the point of view of the office which is required to deal with various types of situations and orders is that as far as interest, costs, means profits etc. are concerned, irrespective of whether there is a prayer or not, if the order passed by the Court is silent with regard to these Heads, then it will be taken to mean that the Court has refused the same.

8. Another difficulty which has created considerable problem is in situations where the operative order is silent with regard to the award of costs and the Court merely quantifies the Advocates fees at a prescribed amount. Where the Court is of the view that special costs or exemplary costs are to be awarded, it should say so in which case while drawing up the decree the Office will specify that amount under the overall head of costs. It would not be correct to merely quantify the Advocate's fees because this would lead to a contradiction in so far as the Court having expressed silence with regard to the head of costs which includes Advocate's fees, a mere statement that the Advocate's fees is quantified at a particular amount would not entitle the Office to induce that amount under the head of costs, the normal rule being that unless costs are specifically awarded they are presumed to have been refused.

9. Lastly, in all those cases where the appeal Courts or this Court have occasion to dismiss the case for default, non-prosecution or the like, the Office shall communicate the order in normal course wherever this has to be done and shall also return the records called for from the lower Court along with such communication. The Office shall not retain those records on the assumption that restoration applications may be moved or for that matter, on the application or request of any body who may state that necessary proceedings are being taken out for recall, restoration etc., If the order is not to be communicated and if the records are to be retained, the concerned party or the learned Advocate shall be required to obtain a specific direction from the Court on the basis of which alone the Office shall be obliged to act:

In view of the importance of these guidelines both to the subordinate Courts and the Offices concerned, the Registrar General shall circulate a copy of this order to each of these forums.