Sri Sambhana Varahalu Vs. Smt. Pudi Saraswathi - Court Judgment

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commercial - recovery - appeal against decree in suit for recovery - suit decreed after examination of oral and documentary evidence available on record - defendant failed to adduce evidence to present his claim - held, decree of trial court well founded on law needs no interference in appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - he is very well known to the husband of the plaintiff who was a doctor at tadepallegudem. as the defendant failed to discharge the amount advanced by the plaintiff by way of loan to the defendant, the plaintiff is constrained to file the suit. so, the cheque was endorsed in the name of sri. though pw-1 was cross-examined at length on this aspect, nothing had been elicited so as to totally discredit the cogent evidence which had been given by pw-1. no doubt, it is the case of the defendant that pw-1 wanted money and thereupon the defendant endorsed a cheque received by him in favour to the plaintiffs compounder and the cheque was encashed by the plaintiff and when he demanded for the said amount this false suit was thought of pw-2 had deposed that he was a tenant of the defendant upto the year 1983 and while he was the tenant in the house of the defendant he wrote the accounts of the defendant for about ten days and ex. a-2 and a-3, the day book and the ledger at the relevant period, clearly establish the liability and in respect of the same evidence also had been recorded relating to exs. 12,458/- on 5.5.1982 and he endorsed the cheque got by him when pw-1 requested him for adjustment of money in the name of compounder of pw-1 one rammohan rao.p.s. narayana, j. 1. the defendant in o.s. no. 136/84 on the file of subordinate judge, tadepallegudem is the appellant. 2. the respondent/plaintiff filed the suit for refund of advance amount and the allegations in the plaint are as follows: 3. the defendant is a contractor doing contract business. he had entered into a contract to do contract work with the regional housing board at tadepallegudem. he is very well known to the husband of the plaintiff who was a doctor at tadepallegudem. the defendant was not having funds and so he approached the plaintiff to advance him monies as and when required to complete the contract works. thus from about the middle of february 1982, the plaintiff began to advance the funds. the defendant got maintained a day book and ledger for the works done by him and also got entered in the said account through his clerk the amounts advanced by the plaintiff to the defendant. the plaintiff advanced moneys till about the end of april 1982 as per the account maintained by the defendant. in fact, the plaintiff advanced some more amount but they are not entered in the accounts of the defendant and so the present the plaintiff is filing the suit only for the amount of rs. 43,241.20 ps, as shown in the accounts of the defendant. the plaintiff reserves her right to take separate proceedings at a later stage for the claim of rest of the amount. the day book and the ledge maintained by the defendant were delivered by the defendant to the plaintiff. when the plaintiff or her husband demanded the defendant to pay the money or endorse the cheque in favour of the plaintiff, he began to evade and dodge. the defendant is in fact encashing some of the cheques or the bills paid by the housing board and is actually walking away with the same without paying to the plaintiff. recently when the plaintiff and he husband pressed and demanded the defendant for repayment of the above said amounts on 30.4.1983, the defendant passed an undertaking letter to the plaintiff saying that the entire contract bill amounts will have to be paid only to the plaintiff as she had invested the entire amount. he had also offered in the saidletter that he would encash the bill and pay the same to the plaintiff under voucher. but he is not doing so. as the defendant failed to discharge the amount advanced by the plaintiff by way of loan to the defendant, the plaintiff is constrained to file the suit. 4. the appellant/defendant filed a written statement with the following allegations: 5. the defendant is only a petty contractor and he contracted some of the petty contracts of the a.p. housing board which were entrusted to him by the housing board. he had sufficient means to finance the works. the defendant did not require any large amounts for doing these works. in fact, he had no need to borrow any money from the plaintiff. the defendant did not approach the plaintiff s husband to advance any money for completing the works contracted by him. the plaintiff did not advance any money to the defendant from the middle of february 1982 to april 1982 or at any time. the defendant did not maintain any accounts for his works nor did he employ any clerk for the purpose. the alleged day book and ledger are false and are mere concoctions. they are spurious and forged. they must have been manipulated by the plaintiff and her husband for the purpose of and in support of the suit claim. the defendant did not deliver any day book or ledger to the plaintiff as he had no accounts. it is absurd and false to allege that the plaintiff lent some more amounts, besides those mentioned in the alleged day book and ledger. the plaintiff did not advance any amounts i.e., either those mentioned in the alleged day book or ledger or any other amounts which the plaintiff alleges that she lent to the defendant and not entered in the alleged day book and ledger. if really she lent any amounts, she could mentioned them in the suit and there is no reason why she should postpone her claim for those amounts. the suit claim and the other alleged claims are obviously false. the plaintiff is not aware of the particulars of the amounts which she alleges that she lent to this defendant. the defendant will contest any other proceedings which the plaintiff threatens to take in regard to her other alleged amounts then the suit claim. the plaintiff or her husband never demanded any payment or endorsement of any cheques, much less the suit amount from the defendant and there is no such necessity also as the defendant did not borrow any amount from the plaintiff at any time. the defendant need not therefore evade and dodge. the defendant is entitled to encash the cheques and bills passed by the housing board. the plaintiff cannot question this defendant's right to encash them as she had no interest whatsoever in them. the defendant need not pay any of those amounts to the plaintiff. the defendant did not issue any undertaking letter to the plaintiff on 30.4.1983 or at any other time. the alleged letter is a rank forgery. the plaintiff has no interest in the works of the housing board done by this defendant nor can she claim any payment from the housing board. the plaintiff had not invested any of her amounts in those works. the defendant never agreed to pay any amount under the bills to the plaintiff and he need not do so. the alleged letter is brought into existence by the plaintiff and her husband to support the suit claims and attachment before judgment. the plaintiff is liable for prosecution for forgery and using that letter as genuine in the suit. the defendant does not owe any amount to the plaintiff and he is not liable for the suit amount. the defendant was issued a cheque for rs. 12,458/- on 5.5.1982 by the housing board. the plaintiffs husband requested the defendant to lend the amount under the cheque to him to be returned in about a month thereafter. so, the cheque was endorsed in the name of sri. v. ramamohana rao, compounder of the plaintiffs husband and encashed. the amount under the cheque was taken by plaintiff s husband as loan from the defendant. the defendant had been pressing him to repay the amount and so the plaintiffs husband bore grudge against the defendant and to avoid payment of the amount due to the defendant, he got this suit filed with a false claim bringing into existence the alleged letter dated 30.4.1983 and day book and ledge which are mere concoctions. the suit claim is not tenable and there is no cause of action for the suit. the attachment before judgment is wrongful and obtained on insufficient grounds. the defendant will be taking necessary steps to prosecute the plaintiff and for damages for the wrongful attachment. the suit is vexatious and frivolous. hence this defendant prayed that the suit may be dismissed with compensatory costs of the defendant. 6. on the strength of the above pleadings, the following two issues were settled: 1. whether the plaintiff is entitled to get the suit amount from the defendant? 2. to what relief? 7. the trial court after recording the evidence of pw-1 to pw-3 and dw-1 and dw-2 and also marking exs. a-1 to a-7 and ex. x-1 had ultimately decreed the suit with costs for rs. 43,241/- with subsequent interest at 6% per annum from the date of suit till the date of realisaion and aggrieved by the said judgment and decree the present appeal is filed. 8. mr. srinivasa murthy, the learned counsel representing the appellant/defendant had vehemently contended that when specifically ex. a-1 was denied the burden is on the plaintiff to establish the same and the material available on record is highly insufficient and hence on the strength of ex. a-1, the appellant/defendant cannot be fastened with liability. the learned counsel further contended that exs. a-2 and a-3 were not properly proved and unless there is independent evidence to prove the entries in the books of account they cannot be relied upon and further these account books are not emerging from proper custody. the learned counsel also had drawn my attention to the oral evidence and also the other documentary evidence and the findings which had been recorded in this regard. 9. on the contrary, the learned counsel for the respondent/plaintiff had contended that the trial court while answering both the issues had discussed the evidence of pw-1, pw-2 and pw-3 and also dw-1 and dw-2 at length and had appreciated the evidence also and had recorded proper findings and hence such findings need not be disturbed. 10. heard the counsels on record. 11. on the respective contentions of the parties, the following points for consideration arise in this appeal: 1. whether the trial court is justified in granting the relief of recovery of amount in favour of the respondent/plaintiff? 2. if so, to what relief the parties are entitled to? point no. 1: in the trial court pw-1, the husband of the plaintiff was examined in which he had deposed that the defendant who is a building contractor approached him for loan and his wife had lent the amount on condition that it should be repaid within six or ten months for which the defendant also agreed. pw-1 also deposed that the defendant is a close friend and a relative also and the amount was paid to the defendant in 2 1/2 months. pw-1 further deposed that they had not obtained any document for the loan amount in view of the promise made by the defendant to return the amount immediately, but though the defendant received the bills he did not repay and he had insisted the defendant to execute a document in writing about the borrowing. pw-1 also deposed about the maintenance of day book and ledger for the amount borrowed from his wife and he also deposed about the letter signed by him ex. a-1. exs. a-2 and a-3, the day book and ledger, also had been marked. ex. a-1 is an undertaking given by the defendant relating to the amount borrowed though it was not directly mentioned in ex. a-1. the undertaking relating to the contract work on payment of amount by the plaintiff had been specified. though pw-1 was cross-examined at length on this aspect, nothing had been elicited so as to totally discredit the cogent evidence which had been given by pw-1. no doubt, it is the case of the defendant that pw-1 wanted money and thereupon the defendant endorsed a cheque received by him in favour to the plaintiffs compounder and the cheque was encashed by the plaintiff and when he demanded for the said amount this false suit was thought of pw-2 had deposed that he was a tenant of the defendant upto the year 1983 and while he was the tenant in the house of the defendant he wrote the accounts of the defendant for about ten days and ex. a-2 is in his handwriting upto page 44 and ex. a-3 is in his handwriting from page 2 and half of the 3rd page and also at page 9 again. pw-2 had deposed about the entries in the account book and no doubt certain suggestions were put to pw-2 that for certain reasons he was giving false evidence and the same had been denied. pw-3 had deposed that he is the secretary of the carpenter's sangham and during 1983 sankranthi festival, pw-1 approached their son and requested to instruct the defendant to repay the amount borrowed from his wife and he had sent for the defendant and the defendant agreed that he had borrowed the amount and had delivered the account books in the presence of the plaintiff. no doubt, pw-3 had admitted that this reference made by pw-1 is not evidenced by any record whatsoever. thus the evidence of pw-1 to pw-3, coupled with the documentary evidence ex. a-1 undertaking letter, exs. a-2 and a-3, the day book and the ledger at the relevant period, clearly establish the liability and in respect of the same evidence also had been recorded relating to exs. a-4 to a-7. 12. no doubt, the specific case of the defendant is that the plaintiff had taken a cheque from him for rs. 12,458/- on 5.5.1982 and he endorsed the cheque got by him when pw-1 requested him for adjustment of money in the name of compounder of pw-1 one rammohan rao. on this aspect, pw-1 had specifically denied. the said rammohan rao was not examined. no doubt, ex. x-1 cheque was marked and dw-2, the branch manager of the state bank of hyderabad had produced the said cheque and the relevant findings had been recorded in detail at paragraph-9 of the judgment by the trial court. dw-1 in his evidence no doubt had simply denied the execution of ex. a-1 and exs. a-2 and a-3. but several circumstances had been narrated in detail in paragraphs 11, 12 and 13 of the judgment of the trial court and ultimately the trial court had arrived at the conclusion that especially in view of the evidence of pw-1, supported by the evidence of pw-2 and also the evidence of pw-3 and exs. a-1 to a-7 in general and exs. a-1 to a-3 in particular, the claim was proved by the respondent/ plaintiff and had ultimately decreed the suit. further, the production or non-production of exs. a-2 and a-3 also may not be of any significance in the light of the specific evidence of pw-3 who had explained under what circumstances the documents were produced. except the vague evidence of dw-1 there is no other contrary evidence and no doubt dw-2 was examined only for the limited purpose of making ex. s- 3 cheque, summoned from the state bank of hyderabad, tadepallegudem and in view of the specific findings recorded disbelieving the stand taken by the appellant/defendant inasmuch as all the factual aspects, both or a land documentary evidence, had been dealt with in detail, i do not find any reason to arrive at a different conclusion and to record different findings relating to the facts and hence the findings recorded by the trial court are hereby confirmed. point no. 2 : in view of the findings recorded above, the appeal is devoid of merits and accordingly the appeal is dismissed. in view of the peculiar facts and circumstances of the case, this court makes no order as to costs.