KIMS Bellerose Institute of Medical Science Pvt. Ltd. v. Dr. Joseph Mani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** **RFA.No. 142 of 2017** **AGAINST THE JUDGMENT AND DECREE DATED 19-08-2016 IN OS NO.229/2013 of ADDITIONAL SUB COURT,KOTTAYAM** ## **APPELLANT/ADDL.5TH DEFENDANT:** **KIMS BELLEROSE INSTITUTE OF MEDICAL SCIENCE PVT. LTD. T.C. 14/2008, P.B.NO.1, ANAYARA(PO), THIRUVANANTHAPURAM-695 029, REPRESENTED BY ITS WHOLETIME DIRECTOR.** **BY ADVS. SRI.RAM MOHAN.G.** **SRI.SHINOD G.P. SRI.GOVIND PADMANABHAN SRI.MOHANDAS PAI** ## **RESPONDENTS/PLAINTIFFS, DEFENDANTS 1 TO 4 AND ADDL.6TH DEFENDANT:** - **1 DR. JOSEPH MANI, MBBS, MS, S/O. K.J. MANI, RESIDING AT KOTTACKAKATHU HOUSE,S.H. MOUNT(PO), PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686016** - **2 DR. LAILA MATHEW,** **MBBS,DGO, MD,DNB, W/O. DR. JOSEPH MANI, RESIDING AT KOTTACKAKATHU HOUSE,S.H. MOUNT(PO), PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686016** - **3 MS. BELLEROSE INSTITUTE OF MEDICAL SCIENCE PVT. LTD, KUMARANALLOOR (PO),PERUMBAIKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM-686016,REPRESENTED BY ITS MANAGING DIRECTOR, MR. JUBY DEVASIA,S/O. DEVASIA, RESIDING AT PADINJAREKALAYIL HOUSE,KUMARANALLOOR (PO), PERUMBAIKKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686016** **4 M/S. BELLEROSE INSTITUTE OF MEDICAL SCIENCE PVT. LTD, KUMARANALLOOR (PO),PERUMBAIKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM** RFA No.142 of 2017 2 **DISTRICT - 686 016,REPRESENTED BY ITS DIRECTOR, MRS. BEVIS THOMAS,W/O.JUBY DEVASIA, RESIDING AT PADINJAREKALAYIL HOUSE,KUMARANALLOOR (PO), PERUMBAIKKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686 016** **5 MR. JUBY DEVASIA, S/O. DEVASIA, RESIDING AT PADINJAREKALAYIL HOUSE,KUMARANALLOOR (PO), PERUMBAIKKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686016** **6 MRS. BEVIS THOMAS, W/O.JUBY DEVASIA, RESIDING AT PADINJAREKALAYIL HOUSE,KUMARANALLOOR (PO), PERUMBAIKKATTUSSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT - 686 016** **7 MANAGER THE SOUTH INDIAN BANK LTD, CORPORATE BRANCH, 1ST FLOOR, SAFA INTERNATIONAL BUILDING, NEAR ANSTO JUNCTION, THAMPANOOR,THIRUVANANTHAPURAM - 695 014.** **R1 & R2 BY ADVS.SRI.DOMSON J.VATTAKUZHY SRI.MATHEW JOHN SRI.SAJEEVU MATHEW** **R5 & R6 BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.SHARAN SHAHIER** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA No.142 of 2017 3 ## **JUDGMENT** Appeal filed by the additional 5[th] defendant in O.S.No.229 of 2013 before the Additional Sub Court, Kottayam. Plaintiffs are the contesting respondents in this appeal. Suit is for realisation of money. Plaintiffs/respondents 1 and 2 are husband and wife. 1[st] plaintiff is a General and Laparoscopic Surgeon and 2[nd] plaintiff is a Gynecologist. They were working at Matha Hospital, Thellakom. 1[st] defendant is a company represented by the 3[rd] defendant as its Managing Director and the 4[th] defendant as its Director. The said company was a family concern of the defendants 3 and 4 who are husband and wife. From 15.07.2012 onwards the plaintiffs were employed in the hospital run by the 1[st] defendant with an offer to pay a monthly salary of `1,50,000/- each along with additional benefit of surgery charges and emoluments. Plaintiffs accepted the offer and started working in the hospital. It is also agreed that a minimum of one month's notice or pay in lieu of notice shall be given while terminating their service. It is the allegation in the plaint that the defendants did not pay any salary or benefits to the plaintiffs as offered. On 28.02.2013 when the plaintiffs insisted for arrears of salary, the defendants informed that they were going to sell the hospital and terminated the service of plaintiffs forthwith. It is seen that the plaintiffs had approached the police raising some complaints. However, since this is a monetary claim, the plaintiffs RFA No.142 of 2017 4 finally filed the suit seeking recovery of money due to them towards salary and interest. 2. Defendants filed a written statement as follows:1[st] plaintiff took charge as Chief Medical Officer of M/s.Bellerose Institute of Medical Science Pvt. Ltd. He was really running the hospital with the 2[nd] plaintiff. All the administrative work of the institution had been done by them. They were in control of all the financial dealings of hospital and they appropriated the entire profit. Since the plaintiffs were not employed by defendants 3 and 4, there was no agreement to pay salary, operation charges, etc. Ext.A1 and A2 salary certificates were obtained by the plaintiffs representing that they wanted to get car loan. There was no contract of employment between the plaintiffs and the contesting defendants. After running the hospital for sometime and appropriating all the income therefrom, plaintiffs voluntarily went out. The defendants are not liable to pay any amount as claimed in the plaint. 3. 5[th] defendant/appellant filed a memo contending that they are adopting the contentions in the written statement filed by defendants 1 to 4. 4. Court below framed the following issues: “i. Whether the plaintiffs are entitled to get a decree for realisation of the plaint amount as claimed by them? ii. Reliefs and costs.” 5. Exts.A1 to A10 are the documents produced on the side of the plaintiffs. No documentary evidence was produced by the defendants. PW1 RFA No.142 of 2017 5 testified to substantiate the contentions in the plaint. DW1 was examined on the side of the defendants. 6. Court below after considering the evidence granted a decree allowing the plaintiffs to recover `22,50,000/- with 12% interest from the date of suit, ie. 10.04.2013 till realisation. It is made clear in the judgment of the trial court that the liability of the 6[th] respondent bank is limited to `26,00,000/-. 7. Feeling aggrieved by the judgment and decree of the trial court, the 5[th] defendant preferred this appeal contending that the decree is legally and factually incorrect. 8. Heard the learned counsel for the appellant and the supporting respondents. Learned counsel for the contesting respondents/plaintiffs is also heard. 9. It is seen from the records that the defendants did not adduce any evidence to rebut the plaintiffs' claim for money based on the contention that they were employed by the 1[st] defendant company. It is an admitted fact that the 5[th] defendant is an entity continuing the business of 1[st] defendant company with some additional shareholders. It is argued by the learned counsel for the 1[st] defendant that there is no change in the legal character of the company and the additional 5[th] defendant is having the same interest as that of the 1[st] defendant. 10. Learned counsel for the appellant fairly submitted that there are certain limitations for the 5[th] defendant to challenge the claim in the RFA No.142 of 2017 6 plaint because this entity came into the picture much after the alleged assumption of duty by the plaintiffs in the hospital. PW1 is the 1[st] plaintiff who testified in accordance with the plaint averments. It is his definite case that the 1[st] defendant company appointed himself and his wife (2[nd] plaintiff) in the hospital on salary and other benefits. According to his assertion, Exts.A1 and A2 are the salary certificates issued by the hospital evidencing their remuneration. The case that Exts.A1 and A2 were issued for availing a car loan is denied by PW1. Despite cross-examination, no definite case could be brought out by the defendants to discredit the version of PW1. 11. DW1 though testified on behalf of the defendants was not legally competent to challenge the contentions raised by the plaintiffs. He, even though said to be the Administrator of the company, was not aware of the events transpired on 15.07.2012. Therefore, his evidence cannot be relied on for finding that the plaint claim is unsustainable. 12. Court below has considered the pleadings and evidence elaborately and arrived at a finding that the plaint claim is legally sustainable. 13. Learned counsel for the appellant contended that grant of future interest at the rate of 12% is legally not sustainable. Relying on the decision in **T.Sankaranarayanan Nair v. Achuthan Nair and others (1982 KHC 329)** and **State of Kerala v. Kurian P.Paul (1991 KHC 459)** , learned counsel for the appellant contended that even though in the appeal memorandum, no challenge is made against grant of 12% future interest, it RFA No.142 of 2017 7 can be raised as an additional ground at the time of hearing and that the court has power to allow a party to urge in support of the appeal any ground not set forth in the appeal memorandum as provided under Order XLI Rule 2 of the Code of Civil Procedure, 1908 (in short, “Code”). This proposition is indubitable. It is also clear that grant of 12% future interest is in contravention of Section 34 of the Code as there is no case for anyone that this is a commercial transaction. 14. A learned single Judge of this Court in **Choovatta Vadakkekara Kunhi Veettil Janardhanan v. Muttukkande Karunakaran (2011 (3) KHC 710)** has clearly held that even if the appellant failed to challenge the wrong rate of interest granted by the courts below, he is entitled to the benefit of Section 34 of the Code and the defendants are only liable to pay 6% future interest which is fixed statutorily by the Code. 15. Having regard to the facts and circumstances, I find that the court below is justified in granting a decree. However, the rate of interest shall be modified as below. In the result, the appeal is partly allowed. Judgment and decree passed by the court below against the defendants for recovery of a sum of `22,50,000/- is hereby confirmed. It is made clear that the amount shall carry 12% interest from the date of suit till the date of decree. It is further made clear that future interest from the date of decree will be only 6% till the realisation. The contesting respondents/plaintiffs is entitled to get costs through out. RFA No.142 of 2017 8 All pending interlocutory applications will stand dismissed. ## **A.HARIPRASAD** **JUDGE** cks