Sivaprakashan and others (LRS of deceased 1st Respondent/Defendant) v. M/S Sakthi Automobiles

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 RSA NO. 552 OF 2009 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 06.02.2009 IN AS 297/2000 OF I ADDITIONAL DISTRICT COURT, PALAKKAD AGAINST THE DECREE AND JUDGMENT DATED 31.05.2000 IN OS 470/1999 OF ADDITIONAL MUNSIFF COURT, PALAKKAD APPELLANTS/SUPPL.RESPONDENTS 2 TO 7 (LRS OF DECEASED 1ST RESPONDENT/DEFENDANT): ``` - `1 SIVAPRAKASHAN, S/O LATE K.C.RAMANKUTTY GOPIKA, KAVASSERY, ALATHUR, PALAKKAD.` - `2 MURALIDHARAN SO.LATE K.C.RAMANKUTTY MURALI NIVAS, KAVASSERY, ALATHUR, PALAKKAD.` - `3 SUBASH, S/O.LATE K.C.RAMANKUTTY MURALI NIVAS, KAVASSERY, ALATHUR, PALAKKAD.` - `4 JANAKI, W/O.LATE K.C.RAMANKUTTY MURALI NIVAS, KAVASSERY, ALATHUR, PALAKKAD.` - `5 NIRMALA, D/O.LATE K.C.RAMANKUTTY MURALI NIVAS, KAVASSERY, ALATHUR, PALAKKAD.` - `6 JAYANTHI, D/O.LATE K.C.RAMANKUTTY MURALI NIVAS, KAVASSERY, ALATHUR, PALAKKAD.` ``` BY ADV ``` ``` SRI.RAJESH SIVARAMANKUTTY ``` ``` RSA NO.552 of 2009 ``` ``` 2 ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` M/S. SAKTHI AUTOMOBILES SAJINA SUPER COMPLEX, COIMBATORE ROAD, PALAKKAD, REP. BY MANAGER, C.SUDHARSH. ``` ``` BY ADV SRI.T.G.RAJENDRAN ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.552 of 2009 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.552 of 2009 --------------------------------------------- Dated this the 2[nd] day of March, 2022 ## **JUDGMENT** The judgment and decree dated 06.02.2009 in A.S.No.297/2000 passed by the 1[st] Additional District Court, Palakkad, are under challenge in this Regular Second Appeal. The legal representatives of the deceased original defendant are the appellants. The plaintiff is the respondent. 2. Material facts relevant for the adjudication of the appeal are briefly narrated below:- 2.1. The plaintiff instituted the suit for a decree for realising a sum of Rs.65,899/- with interest from the original defendant. The plaintiff, M/s Sakthi Automobiles, is a dealer in motor vehicles and motor spare parts. The plaintiff also runs service outlets. The plaintiff is represented in the suit by its Manager. 2.2. The original defendant had owned a vehicle bearing registration No.KL-9B5389. He had been ``` RSA NO.552 of 2009 ``` ``` 4 ``` maintaining a running account with the plaintiff for more than five years. On 08.10.1998, the original defendant brought a vehicle to the service centre run by the plaintiff at Palakkad and carried out repairs. After carrying out the repairs, the vehicle was handed over to the defendant after obtaining repair charges. On 10.10.1998, the defendant informed the plaintiff that the vehicle was garaged in a local workshop for repair as the air pressure of the vehicle was not building up and there was an abnormal sound from the engine while starting. The plaintiff sent a mechanic from the local workshop who advised the defendant to bring the vehicle to the workshop run by the plaintiff. The plaintiff carried out the necessary repairs. The vehicle was road-tested in the presence of the defendant, who acknowledged the receipt of the vehicle with satisfaction. The defendant was allowed to pay the repair charge being a sum of Rs.65,999/- in five instalments at the rate of Rs.12,500/- for four months commencing from 30.11.1998 and the 5[th] instalment of Rs.15,999/- payable on 10.04.1999. The defendant had executed a letter of undertaking on 29.10.1998 to pay the repair charge as stated above. - 2.3. The defendant, without making payment of the ``` RSA NO.552 of 2009 ``` ``` 5 ``` aforesaid amount, caused to send a lawyer's notice dated 9.11.1998 to the plaintiff alleging fraud, coercion and intimidation etc., against the plaintiff. The plaintiff sent a reply notice on 17.12.1998, demanding payment of Rs.65,999/-. The plaintiff again sent a lawyer's notice dated 17.03.1999, calling upon the defendant to pay the amount. The defendant failed to pay the amount as required. 2.4. The defendant resisted the plaint, inter alia contending that the suit was not maintainable. The defendant pleaded that the status of the plaintiff M/s.Sakthi Automobiles is not stated in the plaint. The defendant denied the claim of the plaintiff that he was liable to pay a sum of Rs.65,699/- as on 29.10.1998. The defendant further pleaded that the plaintiff failed to give the vehicle after repair on time. As a result, he could not conduct the bus service for 18 days, causing a loss of Rs.18,000/-. 3. During the trial, PW1 was examined and Ext.A1 to A4 series were marked on the side of the plaintiff. DW1 was examined on the side of the defendant. 4. The Trial Court held that the suit is not maintainable, as the plaintiff failed to prove that the suit had been properly instituted. The Trial court also held that ``` RSA NO.552 of 2009 ``` ``` 6 ``` the plaintiff failed to establish that he is entitled to the plaint claim. 5. The plaintiff challenged the decree and judgment of the Trial Court before the First Appellate Court, which reversed the judgment and decree of the Trial Court and decreed the suit allowing it to realise a sum of Rs.65,899/- with interest at the rate of 6% per annum from the date of the suit till realisation. The legal representatives of the deceased defendant are in appeal before this Court invoking Section 100 of CPC. 6. After hearing both sides, this Court reformulated the substantial questions of law as follows: (i) Has not the Lower Appellate Court gone wrong in holding that the suit as laid by the plaintiff is maintainable? (ii) Has not the Lower Appellate Court gone wrong in not holding that PW1 has not been authorized either to sign the pleadings, file the suit or tender evidence on behalf of the plaintiff? 7. Heard Sri.Rajesh Sivaramankutty, the learned counsel appearing for the appellants and Sri.T.G.Rajendran, ``` RSA NO.552 of 2009 ``` ``` 7 ``` the learned counsel appearing for the respondent. 8. The plaintiff is M/s. Sakthi Automobiles, Palakkad, represented by its Manager. The status of the plaintiff M/s. Sakthi Automobiles as to whether it is a Corporation, company, partnership firm or proprietary concern is not stated in the plaint. 9. The learned counsel for the appellants contended that the original suit is not maintainable as there is nothing to show that the Manager (PW1) had been authorised either to sign the pleadings, file the suit, or tender evidence on behalf of the plaintiff. Relying on Order 29 Rule 1 of the CPC, it is submitted that the plaintiff has not been properly represented in the suit. Relying on Order 6 Rule 14 of the CPC, it is further contended that as PW1 has not been duly authorised to sign the pleadings, the Original Suit is liable to be dismissed. 10. PW1 is the Manager of M/s. Sakthi Automobiles. He deposed in tune with the pleadings. According to him, at the time of the transactions involved, he was the Manager of the plaintiff. The plaintiff has not produced any materials to show that PW1 had been authorized to represent the plaintiff to sign the pleadings and give ``` RSA NO.552 of 2009 ``` ``` 8 ``` evidence. In the written statement, the defendant pleaded that he was not liable to pay the amount claimed by the plaintiff company. On an analysis of the oral testimony of PW1 and the contentions of the defendant in the written statement, the necessary inference is that the plaintiff is a company. The resultant conclusion is that the plaintiff is a company and the suit has been instituted in the name of the plaintiff company by its Manager. 11. So, the question that arises for consideration is whether the suit can be considered as instituted properly without production of sufficient materials to show that PW1 was authorised to represent the plaintiff company. Order 6 Rule 14 CPC says that every pleading shall be signed by the party and his pleader and where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. A company which is a juristic entity can only satisfy this condition by authorising a competent person to sign the pleadings on behalf of it. As per Order 29 Rule 1, in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any director or other principal officer of ``` RSA NO.552 of 2009 ``` ``` 9 ``` the corporation who is able to depose to the facts of the case. 12. Going by the provisions of Order 6 Rule 14 read with Order 29 Rule 1 of CPC, it may appear that even in the absence of any formal letter of authority, a competent person, by virtue of the office he holds, can sign and verify the pleadings on behalf of the company. The authorisation as provided in the aforesaid provisions may be expressed or implied. While dealing with the scope of Order 6 Rule 14 and Order 21 Rule 1 of CPC, the Apex Court in **United Bank** ## **of India v. Naresh Kumar and Others [AIR 1997 SC 3],** held thus:- ”10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity, it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the ``` RSA NO.552 of 2009 ``` ``` 10 ``` plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour, of any individual. In absence thereof and in cases where pleadings have been signed by one of its ofcers a C orporation can ratify the said action of its ofcer in signing the pleadings. Such ratifcation can be express or implied. The C ourt can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratifed the act of signing of the pleading by its ofcer.” (emphasis supplied) 13. In the case on hand, the plaintiff is a juristic entity. PW1 was the Manager of the company at the time when the alleged transactions took place. He has given evidence in tune with the pleadings in the plaint. Going by the pleadings in the plaint and the admission of the defendant corroborated by the oral evidence of PW1, it could be held that PW1 must have been empowered to sign the plaint on behalf of the plaintiff or going by the manner in which the suit was conducted by PW1, the necessary inference is that the plaintiff company must have ratified the action of PW1 in signing the plaint and prosecuting the suit. The First Appellate Court found that the suit instituted by PW1, the Manger in the name of the plaintiff was ``` RSA NO.552 of 2009 ``` ``` 11 ``` maintainable. This finding requires no interference. The substantial questions of law are answered accordingly against the appellants. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. ``` Sd/- K.BABU JUDGE ``` VPK