A.V. KAMATH S/O LATE A. VITTAPPA KAMATH Vs. THE COMMERCIAL CORPORATION OF INDIA LTD., CORPORATION BANK, CORPORATION BANK MANIPAL BRANCH AND STATE GOVERNMENT GOA REP. BY ITS COMMISSIONER AND SECRETARY FINANCE DEPARTMENT

JUDGEMENT

(1.) THE instant Regular Second Appeal arises out of the judgment and decree dated 27th August 2001 on the file of the I Additional District Judge, Dakshina Kannada, Mangalore in R.A.No. 22/2000 dismissing the appeal and confirming the judgment and decree dated 4th July 2000 in O.S. No. 127/1994 on the file of the Principal Civil Judge, (Senior Division), Mangalore.

(2.) THE instant appeal is filed by the plaintiff -appellant on the basis that, he is the seller of lottery tickets of various states in his shop run under the name and style 'M/s. Ganesh Lottery House'. The fourth defendant - fourth respondent herein - State of Goa sells lottery tickets under the name 'Jai Mathru Bhoomi' and first defendant - first respondent herein is the organizer of the lottery tickets 'Jai Mathru Boomi' of the fourth defendant. The case of the plaintiff - appellant is that he purchases lottery tickets of various states inclusive of 'Jai Mathru Bhoomi' tickets of fourth defendant organized by the first defendant from M/s. Lakshmi Venkatesh Agency of which, one Sri. Vaman Pai is the proprietor. The said Sri. Vaman Pai is a stockist of tickets of 'Jai Mathru Bhoomi' also. As per the rules and regulations mentioned in the lottery tickets and as found in the counterfoils of the tickets, the winners of the tickets are entitled for the amounts mentioned therein and that the sellers of lottery tickets are entitled for bonus in respect of winning tickets. A sum of Rs. 250/ - is the bonus towards the sale of tickets which have the prize of Rs. 5,000/ - each and a sum of Rs. 50,000/ - each as bonus towards sale of bumper ticket of Rs. 10,00,000/ - and therefore, totally the plaintiff - appellant is entitled to bonus of Rs. 51,000/ -. Accordingly, the plaintiff -appellant claimed totally a sum of Rs. 51,000/ - being the bonus towards the five prize winning lottery tickets. On production of the counter foils seeking bonus from the stockist Sri. Vaman Pai, plaintiff - appellant had been told to approach the first defendant to get the bonus. A written request had been made by the plaintiff - appellant on 23rd January 1993 seeking bonus. As no response was received by the plaintiff, the second defendant - Bank requested the plaintiff to produce the counter foils to them so that they would collect the bonus from the first defendant through its branch at Manipal. Accordingly, plaintiff - appellant produced all the five counterfoils to the second defendant. In spite of several requests by the plaintiff - appellant, neither the bonus was collected by the defendant No. 1 nor the counter foils were returned to the plaintiff - appellant. Therefore, having no other alternative, plaintiff -appellant was constrained to issue a legal notice through local counsel, claiming that he is entitled for bonus in a sum of Rs. 51,000/ -, failing which appropriate proceedings would be initiated for recovery of the same, in accordance with law.

(3.) ON the basis of the pleadings of both parties and after hearing the learned Counsel appearing for the parties, the Trial Court framed necessary issues for consideration. They are as follows: 1. Whether the suit is barred by Rule of option of remedies by the plaintiff as contended in para. 3 of the written statement ? 2. Whether the plaintiff proves that lottery Tickets bearing No. A -166408, B -166408, C -166408, D -166408, E -166408 were sold earlier to the draw held on 17.1.1993 ? 3. Whether the 1st defendant proves that the stockist reported at 1p.m on 16.1.1993 that 3000 tickets bearing No. 66401 to 167000 in all series remained unsold? 4. Whether the 1st defendant proves that challan bearing No. 21487 has been manipulated and acted in breach of trust fraudulently ?