M K P VELLAIN CHETTIAR DIED Vs. ANDAVAR AND CO A REGISTERED PARTNERSHIP FIRM THROUGH ITS MANAGING PARTNER PL M NAGAPPAN

JUDGEMENT

(1.) THIS appeal is by the defendant, who has suffered a decree for Rs. 40,348.43 with subsequent interest in the Court of the Subordinate Judge, Periyakulam. The parties are hereafter referred as per their rank in the suit, as "plaintiff" and "defendant".

(2.) THE plaintiff's case, as set out in the plaint, is as follows:? THE plaintiff is a coupe contractor in respect of Government forests. When the forest department of Tamil Nadu announced the auctioning of the right to cut, collect and removes the debarked wattle wood in a plantation in Dindigul Taluk, the plaintiff desired to get the same by participating in the auction. But, at that time he did not have the adequate solvency certificate in accordance with the rules of the forest department. He requested the defendant to participate in the auction and get the coupe contract in his name and leave it to the plaintiff for the execution of the work. THE defendant agreed to do so. An agreement was entered into between the plaintiff and the defendant on 24-7-1948. It was duly signed by them. THE original agreement is produced along with the plaint. THE terms and conditions of the agreement are set out in the plaint. According to the agreement, the defendant obtained the right to cut, collect and remove the wattle wood for and on behalf of the plaintiff. After confirmation of the auction, the plaintiff alone did the actual cutting work and the defendant did not have any interest, whatever, in the contract. THE security deposit of Rs. 38,750/- was to be paid in connection with the said work. THE amount paid by the plaintiff was from out of his own funds. It was deposited in the name of the defendant in the Madurai District Central Cooperative Bank Limited at Pannaikadu. He did not pay any amount towards the same. THE defendant as acknowledged that the entire security deposit amount belongs to the plaintiff exclusively and that he had no interest therein. THE defendant undertook to withdraw the security deposit amount after the completion of the contract work and return it to the plaintiff. THE letter of undertaking is filed along with the plaint. After the completion of the contract work the fixed deposit receipt got returned from the Forest Officer, pursuant to the release order. THE plaintiff's agent, who was in custody and possession of the said receipt, by name Chellappa Iyer, proceeded along with the defendant to the bank to withdraw the amount. THE bank stated that it would take some time for the actual withdrawal of the amount. THE defandant took the receipt from the plaintiff's agent representing that he would expedite the despatch of the amount from the bank. Trusting him, the receipt was handed over by the plaintiff's agent to him. But the defendant, chose to keep it with him and encash the amount. THE amount belongs to the plaintiff and the defendent is bound to return the same to him. In spite of demands, the defendant has not chosen to return the money. In reply to the plaintiff's notice, the defendant has sent a lawyer's notice, containing false and unsustainable allegations. Hence, the plaintiff is obliged to file the suit for recovery of the amount.

(3.) A reply statement was filed by the plaintiff, denying the allegations contained in the written statement. The plaintiff has stated that the defendant paid only a portion of the auction amount due to the Forest Department and did not pay the entire amount claimed by him. The security deposit belongs to the plaintiff and he is not aware of the alleged account copy said to have been sent to the defendant by the plaintiff's agent. The said agent left the service of the plaintiff long back and he had no authority to act on behalf of the plaintiff. The correctness of the account is not admitted. At the time when the coupe was taken on contract, the plaintiff requested the defendant to put up some sheds in the work spot. He did so and claimed a sum of Rs. 6,349/- as the amount due to him towards cost of construction. The said amount was paid by the plaintiff to the defendant by a cheque on 5-2-1979. After that no amount was due to the defendant. In September, 1978 when the other amounts due to the defendant were paid by the plaintiff, the plaintiff wanted to deduct the security deposit. The defendant told the plaintiff that the security amount need not be deducted and that this plaintiff may take it from the bank after the contract work was over. He passed a letter on 10-9-1978 to the said effect. After that the defendant was paid the other amounts due to him. The letter dated 10-9-1978 has been attested by the then District Agricultural Officer, Manaparai. The allegation in the written statement that a sum of Rs. 45,000/- is due to the defendant as profits, is false. The plaintiff is entitled to get the decree for the entire amount claimed by him.