Binda Prasad Vs. Ram Chandar and ors. - Court Judgment

Excerpt:
insolvency - creditor causing seizure of property as that of an insolvent--suit by real owner for damages liability of creditor. - 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]. tudball and muhammad rafiq, jj.1. this is a plaintiff's appeal arising out of a suit for damages. the plaintiff's case was that he and one abdul haq became partners in a brick kiln business in august, 1913; that a deed of partnership was drawn up on the 16th of october, 1913; that the plaintiff supplied rs. 2,000 and abdul haq rs. 300 worth of capital, and that, the plaintiff not having the necessary technical knowledge, abdul haq ran the business. but the plaintiff, discovering that ablul haq was heavily involve in debt, decided to separate from him, and on the 26th of march, 1914, a deed of dissolution of partnership was drawn up, under which the plaintiff paid to abdul haq rs. 800, his share of the capital, and rs. 950, his share of some of the produce of the kiln. apparently this sum of rs. 1,250 was distributed to certain creditors of ablul haq among the creditors were the respondents to the present appeal. abdul haq applied to the district judge to be declared an insolvent, and a receiver was appointed to take possession of his property. according to the plaintiff, on the 20th of september, 1914, the respondents applied to the district judge stating that abdul haq owned a half share in the brick kiln and asking the court to direct the receiver to take possession of the kiln. the district judge ordered the receiver to comply, and the receiver took complete possession of the kiln on the 26th of september, 1914. the plaintiff filed objections which were allowed and on the 21st of january, 1915, the receiver gave up possession of the kiln. on the 30th of january, 1915, however, the respondents, according to the plaintiff himself, made a further application for review of the order of the 21st of january, 1915, and alleged that the whole of the kiln belong ed to abdul haq and asked the court to direct the receiver to take possession thereof. the district judge apparently pissed an ex parte order to the receiver to comply and on the 10th of february, 1915, the receiver again took possession of the whole of the kiln an appeal was preferred to the high court by the plaintiff against the order of the district judge, and this court on appeal set it aside and possession of the kiln was restored to the plaintiff on the 6th of may, 1915. on these allegations of fact the plaintiff, sued the defendants for damages caused to him by the seizure of the brick kiln, by reason of which he alleged that he had suffered considerable loss. the defendants put in a long written statement denying many facts alleged by the plaintiff; but asserted among other things that the dissolution of partnership of the 26th of march, 1914, was a bogus transaction made by abdul haq and binda prasad in collusion with a view co defeat the creditors of the former. it was also argued in court that, assuming the facts to be as stated by the plaintiffs, the defendants were not legally liable for any damages that had accrued to the plaintiff and that the proper person to sue was the receiver who was responsible therefor. both the courts below have decided only two points. they have held that the dissolution of partnership of the 28th of march, 1914, was a genuine and not a bogus transaction. they have then held that on the facts alleged the respondents were not legally liable for any damages and that the suit ought to have bean filed against the receiver. in this view the courts below have dismissed the suit without going into the other facts or the question of actual damages. it is urged on appeal tint the decision of the court below on the point of law which is raised is erroneous and should be set aside. in view of the decision of this court in abdul rahim v. sital prasad (1919) i.l.r. 41 all. 658 it is clear that the decision of the court below on the question of law is incorrect. the case mentioned above is parallel and exactly fits the facts of the present case. it is unnecessary for us to go any further into this point, as the matter is covered by a decision of a divisional bench of this court. the case must, therefore, go back for decision on its merits. there are several questions of fact into which the court will have to go. we, therefore, allow the appeal, set aside the decree of the court below and remand the case to the court of first instance through the lower appellate court with directions to re-admit the suit on its original number and to proceed to hear and decide it according to law. the costs of this appeal and those of the courts below will be costs in the cause and will abide the, result.