ALT

Vijaya Bank, Ongole Branch Rep. By Its Branch Manager vs Thottempudi Ramaiah Chowdary And Ors. on 21/7/1992

ORDER

G. Radhakrishna Rao, J.

1. This appeal has been filed against the decree and judgment that has been passed by the learned Principal Subordinate Judge, Ongole in O.S. No. 44 of 1987 on the file of the Subordinate Judge, Ongole. The total claim that has been made is Rs. 3,47,895-90 ps. Rs. 2,44,147/- is the principal amount that has been deposited on 19 different times, the first time said to have been appropriated towards the account of the bank is on 7-4-1980. The interest claimed is Rs. 1,03,747-90. The facts of the case are that a suit has been filed against the partnership firm and its partners for recovery of a sum due with interest and the same has been numbered as O.S.No. 204/1979 on the file of the Subordinate Judge, Ongole. During pendency of O.S.No. 204/1979, these amounts have been deposited or collected on behalf of the plaintiff and appropriated towards the accounts of the Bank with specific condition that these deposited will be subject to the result of the suit, O.S.No. 204/79. O.S.No. 204/79 was dismissed on 24-9-1986 holding that the Bank is not entitled for the recovery of the amount. Against that an appeal has been filed in the High Court, i.e., A.S. 1205/87 and the judgment and decree of the lower Court was confirmed by this Court or 21-4-1992. Subsequent to the dismissal of the suit, O.S.No. 204/79, the plaintiff filed a suit, O.S.No. 44/87. The managing partner and the firm are the plaintiffs. The Bank is shown as defendant No. l and D-2 to D-4 who are the partners of the firm were impleaded themselves on an application filed, i.e., I.A.No. 277/89. The Bank raised an objection under Section 69(2) of the Partnership Act. All the partners shown before the Registrar of Firms are not the parties in the suit. The Bank took an objection that filing of the suit by the managing partner and the company excluding the other partners is hit by the provisions of Section 69(2) of the Partnership Act and the same was negatived by the Court holding that there was an arrangement between the parties and Ex.A-12 is the release letter given by the parties. So, that plea that it is affected by Section 69 has no application and he discussed the case-law on that point. However, Certificates have also been filed and they are marked as Exs.A-14 and A-15. It is not the case that the suit has been filed by one or two partners against the remaining partners. It is only a case where the managing partner and the firm claimed the amount that has been paid by them on account of the suit filed against the partnership firm. There is no inter se dispute or inter se claim or arrangement pleaded at least by D-2 to D-4 who are impleaded as parties herein. It is not a dispute between the partners and it is not touching the dispute with regard to the clauses or any conditions in the agreement. It is only a simple suit for recovery of the amount paid by the partnership firm. Therefore, the question of the suit being hit by Section 69(2) of the Partnership Act does not arise. So the objection with regard to Section 69(2) and all the partners that have been shown in the Certificates are not impleaded as parties is not a tenable ground in view of the nature of the suit that has been filed consequent on the dismissal of the suit filed against the partnership firm. The first amount that has been deposited is adjusted on 7-4-1980. In the circumstances, the three judgments cited, i.e. Ram Kumar Shew Chandrai, A Firm v. Dominion of India, Now the Union of India, , Krishna Chandra Agarwalla and Ors. v. Shanti Prasad Jain and Ors., and P. Ananda Rao and Anr. v. G. Raja Rao and Ors.,

AIR 1976 A.P. 256 have no application to the facts of this case.

2. Sri Trivikrama Rao contended that in view of Section 6 of the Court Fees Act, the proper court fee has not yet been paid and moreover since the first adjustment is on 7-4-1980, the suit is barred by limitation. The amount has been paid with a condition to the knowledge of both the parties that payment will be subject to the result of the suit, that is O.S.No. 204/79. Unless and until disposal of the suit is there, the question of cause of action for either parties does not arise. In this case, as the suit, O.S.No. 204/79 has been dismissed on 24-9-1986, cause of action for filing a suit arose on 24-9-1986 but not on the date of adjustment of the 19 items that have been made by the Bank in pursuance of the deposit with a condition. The suit has been filed within time. On this point, it is to be held that cause of action in any case of conditional deposit will be on fulfilling with a condition either in favour or against the party concerned.

3. Sri Trivikrama Rao contended that the suit that has been filed is in the nature of a restitution and unless and untill the conditions implied in Section 144(1) CPC are satisfied the party is not entitled for the relief. He contended that Section 144(1) is applicable to the present set of facts of the case and the suit is barred as contemplated under Section 144(2). The power of a Court to grant restitution if not confined to the cases covered by the provisions of this Section. It extends also to cases which do not come strictly within this section. The reason is that a Court has an inherent power under Section 151 CPC irrespective of this Section to order restitution. But this Court feels that this amount has not yet been deposited in pursuance of a direction of any Court or the amounts have been deposited after the decree has been granted, or varied or modified subsequently. This Court feels that Section 144(1) has no application because they are not deposited in the Court. Since these amounts have been deposited with the bank i.e., with the party at that time and not deposited in pursuance of directions of any Court, this Court feels that Section 144(1) is not applicable to such cases. Section 144(1) is applicable only in the cases where decrees have been granted, varied, modified or in pursuance of the orders of the Court, the amounts have been deposited in the Court. Since these amounts have been deposited as admitted by both the parties with condition that the deposits will be subject to the result of the suit pending in a competent Court this Court feels that the party who has paid the amount without intervention of the Court with a condition that it is subject to the result of the decision of the suit, can file a suit for return of the amount that has been paid by him.

4. Section 144(2) of CPC reads as follows:

"No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1)-"

Where the conditions contained under Section 144(1) apply and where the party is entitled to file a rest i restitution, they are debarred from filing a suit. Since the party has no right to invoke the aid of Section 144(1) and as the conditions mentioned in Section 144(1) are not applicable to the facts of this case, the remedy that is available is only to file a suit for recovery of the amount that has been paid by him where there is a condition that the amount to be paid will be subject to the result of the suit pending between the parties. So the contention of Trivikrama Rao that Section 144(1) applies and Section 114 (2)'s a bar for filing a suit: cannot be accepted in view of the tact that the deposits that have been made 'with the party arc without the intervention of the Court.

5. So in these circumstances, this Court feels that no case is made out for interference. The appeal is dismissed. No costs.

6. The other partner who are impleaded have also staled that a condition may be imposed that it will be subject to the result of the appeal filed against the judgment and decree in O.S.No. 204/79. Since appeal A.S.1205/87 filed against the judgment in O.S.No. 204/79 was dismissed or 21-4-1992, the question of imposing any conditions that it will be subject to the result also does not arise in view of the subsequent evidence.