Anuroop R. V. and Divya R. V v. L. Wilson, S. Murugan and Mary Matha College of Engineering Technology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** ## **RFA.No. 226 of 2017** **AGAINST THE JUDGMENT AND DECREE IN OS 320/2009 of SUB COURT,NEYYATTINKARA DATED 07-09-2016** ## **APPELLANTS/PLAINTIFFS:** **1 ANUROOP R. V, AGED 31 YEARS,NIDHIN BHAVAN,KUSAVARKOTTUKONAM,VENPAKAL.P.O,ARALUMOODU (VIA),THIRUVANANTHAPURAM-695123.** **2 DIVYA R.V AGED 33 YEARS,NIDHIN BHAVAN,KUSAVARKOTTUKONAM,VENPAKAL.P.O,ARALUMOODU (VIA),THIRUVANANTHAPURAM-695123.** **BY ADVS. SRI.B.RAGUNATHAN SRI.M.SALIM SRI.R.SRINATH SRI.V.M.JACOB** ## **RESPONDENTS/DEFENDANTS:** **1 L.WILSON AGED ABOUT 67,FORMER CHAIRMAN MARY MATHA COLLEGE OF ENGINEERING TECHNOLOGY,PALIYODE,DALUMUGHAM.P.O,NOW RESIDING AT AVIKUZHI VEEDU,OLATHANNI,NEYYATTINKARA,THIRUVANANTHAPURAM695133.** **2 S.MURUGAN AGED ABOUT 66,CHAIRMAN MARY MATHA COLLEGE OF ENGINEERING TECHNOLOGY,PALIYODE,DALUMUGHAM.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM-695125. 3 MARY MATHA COLLEGE OF ENGINEERING TECHNOLOGY, PALIYODE, DALUMUGHAM.P.O NEYYATTINKARA,THIRUVANANTHAPURAM-695125.REPRESENTED BY THE CHAIRMAN.** RFA.No. 226 of 2017 2 **BY ADVS. SRI.K.ARJUN VENUGOPAL-R1 SRI.R.S.KALKURA-R2,R3 SMT.MARY RESHMA GEORGE-R1 SMT.P.M.MAZNA MANSOOR-R1 SMT.R.BINDU-R2,R3 SMT.SANDHYA R.NAIR-R1 SMT.V.A.HARITHA -R1 SRI.C.R.SYAMKUMAR-R1 SRI.M.S.KALESH-R2,R3 SRI.SOORAJ T.ELENJICKAL-R1 SRI.S.SUDHEESH KUMAR-R1 SRI.HARISH GOPINATH-R2,R3** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.1.2019, THE COURT ON 27.5.2019 DELIVERED THE FOLLOWING:** RFA.No. 226 of 2017 3 ## **JUDGMENT** This appeal has been filed by the appellants challenging the judgment and decree dated 7.9.2016 in O.S.No.320/2009 on the file of the Subordinate Court, Neyyattinkara . 2. The brief facts for disposal of the appeal are as follows: 3. Both plaintiffs/appellants are engineering graduates. They have paid an amount of Rs.2 lakhs and Rs.3 lakhs respectively to the first defendant, the Chairman of Mary Matha College of Engineering and Technology, Paliyode to secure employment in the College pursuant to the notification issued by the College inviting applications from candidates for the post of lecturers. The amount was paid towards development fund of the College as it was agreed by the first defendant to appoint them as lecturers in the college and to repay the money on their resignation. Though they resigned the job and demanded back the amount it was not returned. But, the court below rejected their claim against the defendants 2 and 3. Hence the appeal. 4. The first defendant did not appear before the court below and he remained ex parte. The defendants 1 and 2 resisted the RFA.No. 226 of 2017 4 suit contending that the Engineering College is run by a Society and on 5.6.2008 the governing body has been replaced by another governing body and the second defendant is the present Chairman of the Society. Actually, the amount was paid by the plaintiffs to the first defendant, the former chairman of the society and it was an illegal gratification and now the plaintiffs colluded with the first defendant and filed the suit. In fact the Society has no obligation to pay the amount received by the first defendant. When the new Managing Committee had taken charge of the College a document was executed showing the liabilities of the College. But in that document liability of the College towards the plaintiffs have not been mentioned. Hence, the third defendant College is not liable to return any amount to the plaintiffs. 5. Before the court below, the first plaintiff was examined as PW1 and Exts.A1 to A7 were marked for the plaintiffs. DW1 and DW2 were examined for the defendants and Exts.B1 and B4 were also marked. 6. The third defendant is Mary Matha College of Engineering Technology, Paliyode run by a society. The second defendant is RFA.No. 226 of 2017 5 the present Chairman of the said College and the first defendant was the former Chairman of the College. The suit was filed on the allegation that the College had invited applications for the post of lecturers. Pursuant to the notification the plaintiffs submitted applications and the first plaintiff paid Rs.2 lakhs and the second plaintiff paid Rs.3 lakhs towards the development funds of the College as demanded by the first defendant and their case is that thus they have secured appointments in the College. Exts.A1 and A2 are the agreements executed by the plaintiffs respectively for payment of the amount to the first defendant to secure appointments in the College. According to the plaintiffs they worked in the College only for a short period and subsequently they resigned their job and at the time of submitting their resignation, they demanded back the money. But the same was not paid by the first defendant and hence, the suit was filed for realization of the amount from all the defendants as the amount was received for the College by the Chairman. 7. Admittedly, the present Chairman of the College is the second defendant and the third defendant is the College. The plaint claim is mainly based on Exts.A1 and A2 dated 7.9.2007. RFA.No. 226 of 2017 6 The main contention raised by the learned counsel for the defendants is that the receipt of the money was not for the College and the College is not having the status of a juristic person so as to claim any amount from the college. Exts.A1 and A2 would clearly indicate that the first defendant had received the money from the plaintiffs and he himself had agreed to return the same when they resign their job and that was agreed to by the first defendant in specific and definite terms. It is pertinent to note that there is no recital to the effect that the amount was received for the college run by the society and it will be returned by the College on resignation of the candidates who were appointed by the college. The recital in Ext.A1 and A2 executed and signed by the first defendant is reproduced below '' _I declare that I will give back this amount without interest when you demand while quitting the job as Lecturer of the said Engineering College._ '' 8. The learned counsel for the defendants has also placed reliance on the judgment of this Court in **P.Vasudevan v. M.Pappu [1969 KHC 14]** that a School prima facie is not a juristic entity and cannot be treated as a person against whom a RFA.No. 226 of 2017 7 decree could be passed. Here as referred above, a perusal of the record shows that the amount had been received by the first defendant and not by the College or for the college run by the Society. The recitals in Exts.A1 and A2 are making it clear that the first defendant alone had received the amount from the plaintiffs in his capacity as the Chairman of the college but there was no specific or definite recitals to the effect that the third defendant college will return the amount so as find the college responsible or liable for the amount. The finding of the court below that the first defendant alone was liable to repay the amount to the plaintiffs as it was received by him warrants no interference by this Court. Absolutely, I find no infirmity in the impugned Judgment and Decree passed by the court below. There are no merits in the appeal, which is accordingly dismissed. No costs. Sd/- **SHIRCY V JUDGE** smm RFA.No. 226 of 2017 8