UNION OF INDIA Vs. N JAGADESWARA RAO

JUDGEMENT

(1.) This appeal by the plaintiff, the Union of India represented by the General Manager, South Eastern Railway, is against the judgment of the Addl. Subordinate Judge, Srikakulam in O. S No. 38 of 1961, which dismissed the suit as against the 10th defendant (sole respondent herein) and decreed it for Rs. 22,096-35 p. against the defendants 1 to 9 with proportionate costs and subsequent interest at 51/2 per cent per annum from the date of gait till the date of realisation. Defendants t to 9, though originally impleaded as respondents 2 to 10 in this appeal, were later deleted by the order of this Court dated 10-7-1976 as not necessary parties,

(2.) The relevant facts of the case are: The plaintiff brought the suit against the defendants 1 to 10. Defendants 1 to 9 are inter-related, constituting a joint family. The 10th defendant is the maternal uncle of the 9th defendant. The plaintiff's case is that the defendants 1 to 9 were joint and that the 9th defendant, as the manager of the joint family, was carrying on joint family trade for the benefit of the joint family under the name and style of Sanka Sambanna and Brothers at Parvathipuram. The 9th defendant despatched 232 bags of mustard seeds from Parvathipuram Railway Station to Midnapur Railway Station on 18-1-1952, addressed to self. He was given a railway receipt for the same. He subsequently transferred the R.R. in favour of 'Chinnari Gopalam & Brothers'. He then approached the Station Master, Parvathipuram Railway Station and, by falsely representing to him that he had lost the R.R., executed an indemnity bond in favour of the Railway with the 10th defendant as the surety. Subsequently, he went to Midnapur and produced the indemnity bond at Midnapur Railway Station and got the consignment delivered to Srikrishna Oil Mills, Midnapur Consequently, Chinnari Gopalam and Brothers filed a suit, O.S No. 16 of 1953, against the present plaintiff, who was impleaded as the 1st defendant, and the present defendants 1 to 9 who were impleaded as defendants 2 to 10 respectively, for recovery of an amount of Rs. 11, 992-6-7, which was the amount said to have been paid by them as consideration for the transfer of the R.R. in their favour. The suit was dismissed as against the present plaintiff and decreed as against the present defendants 1 to 9. Chinnari Gopalam & Brothers, however, preferred an appeal to the High Court in A.S No. 764 of 1964 which was allowed by decreeing the suit against the present plaintiff. In view of that, the plaintiff herein paid an amount of Rs, 19, 017-15 p. to Chinnari Gopalam & Brothers in full satisfaction of the decree. The plaintiff has, therefore, filed the present suit against the defendants 1 to 10, alleging that the 9th defendant by executing the indemnity bond on the false representation that the original R.R, was lost, fraudulently took delivery of the consignment though in fact the R.R, was endorsed by him in favour of Chinnari Gopalam & Brothers for valuable consideration and thus practised fraud upon the plaintiff and so, the defendants 1 to 9 as members of the joint family and the 10th defendent as surety to the indemnity bond, are bound to indemnify the plaintiff, claiming in all a sum of Rs. 22, 477-19 p.

(3.) The 1st defendant remained exparte, and the defendants 2 and 3 did not file any written statement. Defendants 4 to 8 claimed that the defendants 1 to 9 were not joint and they were not carrying on any joint family trade with the 9th defendant as manager, and pleaded that they had no knowledge about the case and hence they were not liable at all. The 10th defendant, however pleaded that he had no knowledge about prior endorsemen in favour of Chinnari Gopalam & Brother; by the 9th defendant; that he did not execute any indemnity bond along with the 9th defendant, that the 9th defendant merely requested him to put his signature on a blank paper representing to him that in was needed for some formal transaction, and that even if the indemnity bond is to be taken to have been duly executed by him as surety, it is null and void as he was a minor at that time. He further pleaded that the 9th defendant and the plaintiff colluded and acted fraudulently enabling the 9th defendant to take delivery of the consignment, notwithstanding the fact that the Station Master, Midnapur, was informed about the availability of the R.R. and who, in turn, had instructed the goods clerk not to deliver the goods unless the R.R. was produced, and so he was not liable to pay anything to the plaintiff.