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High Court of Karnataka · body

2025 DAILYLAW 77009 (KAR)

MS ADINA CUXTON v. M/S INDUS INTERNATIONAL SCHOOL

RFA/248/2014 · 2025-11-14

E S Indiresh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR FIRST APPEAL NO. 248 OF 2014 (MON) BETWEEN: MS ADINA CUXTON AGED ABOUT 36 YARS, D/O MR. ELDRED CHARLES JOHN CUXTON, R/AT 3RD FLOOR, MARUTHI NILAYA, BEHIND SNEHA BAKERY, DODDAKANNEHALLI, SARJAPUR ROAD, CARMALARAM P.O., BANGALORE - 560 035. …APPELLANT (BY SRI. SHOBHA BHAVIKATTI, ADVOCATE) AND: M/S INDUS INTERNATIONAL SCHOOL A DIVISION OF M/S.INDUS TRUST, A REGISTERED TRUST UNDER THE INDIAN TRUSTS ACT 1881, BILLAPURA CROSS, SARJAPUR, BANGALORE - 562 125 BY ITS CEO AND AUTHORIZED SIGNATORY, LT.GEN.ARJUN RAY, PVSM, VSM. …RESPONDENT (BY SRI. B V NIDHISHREE, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:08.11.2013 PASSED IN O.S.3769/2011 ON THE FILE OF XIX-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR RECOVERY OF MONEY. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular First Appeal is preferred by the defendant in OS No.3769 of 2011 on the file of the XIX Additional City Civil and Sessions Judge at Bengaluru City, challenging the judgment and decree dated 08.11.2013. 2. Facts in nutshell for the purpose of adjudication of this appeal are that, the plaintiff claims to be a Trust registered under the Indian Trusts Act, 1882 running an Institution known as "Indus International School". It is further stated in the plaint that, the defendant was appointed as a English Teacher as per the Appointment Letter dated 15.12.2008 with effect from 01.08.2009 with an initial probationary period of six months. The salary of the defendant was ₹36,000 per month and the employment of the defendant was confirmed by letter dated 01.02.2010. It is further stated in the plaint that, the defendant has failed to attend the work from 17.07.2010 without informing the plaintiff-Institution and therefore, it is the case of the plaintiff that the defendant has violated Clause (3) of the terms and conditions of the Agreement said to have - 3 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 entered between the plaintiff-Institution and the defendant. It is further pleaded in the plaint that, since the defendant has failed to give notice for her absence from the duty, which clearly violates the Agreement and as there is a breach of contract by the defendant, she is liable to pay 2 (two) months salary as per Clause (3) of the Agreement which amounts to ₹72,000. 3. It is further pleaded in the plaint that, in view of cessation of work by the defendant without intimating the plaintiff-Institution, the plaintiff got issued a legal notice on 17.08.2010. The defendant has replied to the same by reply letter dated 01.09.2010. It is also stated in the plaint that, the defendant has sent an E-mail dated 17.02.2010 which is her resignation to the post as a Teacher from Plaintiff-Institution and therefore, the plaintiff has filed suit in OS No.3769 of 2011 before the trial Court seeking recovery of ₹72,000/- with interest from the defendant. 4. After service of summons, the defendant entered appearance and filed written statement denying the averments made in the plaint. The defendant admits that she has been - 4 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 appointed as a English teacher on 15.12.2008 with effect from 01.08.2009 on a probationary period of six months and thereafter, she was continued in the plaintiff- Institution. It is also stated in the Written Statement that, the son of the defendant-Sean, aged about six years was studying in the plaintiff- Institution and was admitted to first standard for the Academic Year 2009-10. Since the environment in the school premises was not good and had caused mental agony to the son of the defendant, same has caused mental stress to the defendant as well and as such, the defendant has brought to the notice of the Class Teacher regarding the way of treatment meted out by her son in the School and requested the Class Teacher to take action in respect of the bad environment prevailing in the school. 5. It is further stated that, the son of the defendant was ill- treated by his classmates, seniors and Teachers, for which the School- Management are responsible. It is further stated in the written statement that, the defendant being a Teacher in the same School, could not tolerate the treatment which has been meted out by her son in the School. Though the said aspect - 5 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 was brought to the notice of the plaintiff-Institution, however there is lapse on the part of the plaintiff and as such, the defendant was constrained to resign from the school. It is further stated in the plaint that, the plaintiff having accepted the resignation of the defendant, however caused a legal notice, which is untenable and as such, the defendant has sought for dismissal of the suit. 6. On the basis of the rival pleadings, the trial Court framed the following issues: i) Whether the plaintiff proves that the defendant is due and liable to pay a sum of Rs.72,000/- along with damages of Rs.50,000/- as prayed for ? ii) Whether the plaintiff proves that the defendant is also liable to pay the interest as claimed? iii) Whether the plaintiff is entitled for a judgment and decree as sought for ? iv) To what order or decree ? 7. In order to establish their case, the plaintiff has examined one witness as PW1 and got marked 10 documents as Exhibits P1 to Exhibits P10. Defendant has examined herself - 6 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 as DW1 and no documents were marked on behalf of the defendant. The Trial Court, on considering the material on record, by its judgment and decree dated 08.11.2013, decreed the suit and directed the defendant to pay ₹36,000 within 2 (two) months from the date of the judgment and decree. Feeling aggrieved by the same, the defendant has preferred this appeal. 8. I have heard Smt.Shobha Bhavikatti, learned counsel for the appellant and Smt.B.V.Nidhishree, learned counsel for the respondent. 9. Smt.Shobha Bhavikatti, learned counsel for the appellant, argued that, the suit itself is not maintainable on the ground that, the suit was filed on 26.05.2011 and Authorization was issued by the plaintiff-Institution to the Authorized Signatory- Lt.Gen.Arjun Ray on 10.08.2011 and, accordingly submitted that, as the suit itself is not maintainable before the Court, decreeing the suit of the plaintiff does not arise and accordingly, sought for interference of this Court. It is also argued by the learned counsel appearing for the Appellant that, the plaintiff claims to be a Trust, however, the Trust Deed has - 7 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 not been marked before the Trial Court and therefore, the suit itself is not maintainable and accordingly, sought for dismissal of the suit. It is further argued by the learned counsel appearing for the appellant, by referring to the provision contained in Order III Rule 1 of the Code of Civil Procedure, 1908 that, the Trial Court has failed to consider the aspect that, the aforementioned Authorised Signatory was not an Agent of the Trust as contemplated under Order III Rule 1 of Code of Civil Procedure, 1908 and therefore, the learned counsel argued that, interference is called for in the present appeal. 10. Per contra, Smt.B.V.Nidhishree, learned counsel for the respondent submitted that, for the first time, plea is raised before this Court by the learned counsel for the appellant and the same has not been urged before the Trial Court and therefore, since the said aspect of the matter is a mixed question of fact and law, same cannot be allowed to be urged before this Court and accordingly, sought for dismissal of the appeal. It is also submitted by the learned counsel for respondent by referring to the document produced at the time of filing of the suit that, in the extract of the Minutes of the 27th - 8 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 Board Meeting, it is resolved that, the Chief Executive Officer be authorized to institute, defend, prosecute, conduct or to compromise any legal or other proceedings and therefore, as the said Authorization Letter along with the Deed of Amendment of Trust dated 23.08.2003 itself has been produced at the time of filing of the suit and therefore, even if those documents have not been marked at the time of recording of evidence, the same would not come in the way of the Trial Court to decree the suit and accordingly, sought for dismissal of the appeal. 11.Having heard the learned counsel for the parties, the points that arise for determination in this appeal are as follows : i) Whether the suit is maintainable in the absence of the Authorization before the Trial Court ? ii) Whether the judgment and decree passed by the Trial Court requires interference in this appeal ? 12. In the light of the submission made by the learned counsel for the parties, I have carefully examined the original - 9 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 records and the contentions raised by the learned counsel appearing for the parties. 13. On a careful consideration of the case, it would indicate that, it is not in dispute that the defendant was working as a Teacher in the plaintiff-Institution. Admittedly, the Trust Deed has not been marked before the Trial Court and also it is to be noted that PW.1 has been examined. However, there is no Authorisation Letter filed before the Trial Court before filing of the suit is concerned to proceed with the matter by the Authorised Signatory, except a copy of the Authorization which is produced at the time of filing of the suit is concerned. It is also to be noted that the suit was filed on 26.05.2011 and on a careful consideration of Ex.P.10-letter of Board of Trust, it would indicate that, the extract of the minutes of the meeting of the Board and Trustees is dated 10.08.2011 (Ex.P.10). A judicial note has to be made to the fact that, though the plaintiff claims to be a Trust however, the Deed of Trust has not been marked at the time of recording of the evidence though the copy of the same has been produced at the time of filing of the suit. Taking into consideration the language employed in - 10 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 Order III Rule 2 of the Code of Civil Procedure, 1908, the plaintiff ought to have authorized the Signatory to the plaint to conduct the proceedings before the Trial Court, including to adduce evidence before the Court. 14. In that view of the matter, though the learned counsel appearing for the respondent submitted that, there is no irregularity in filing the Suit and in recording of evidence by the Trial Court based on Ex.P.10 is concerned, however, I find force in the submission made by the learned counsel appearing for the appellant to the effect that, as on the date of filing of the suit is concerned, Authorisation made to the Signatory to the suit was not marked before the Trial Court, which is an essential document which would give rise to the cause of action in the suit. Though it is argued by the learned counsel for the respondent that, the said aspect of the matter was not urged before the Trial Court and there is no issue with regard to the same, however, as the essential requirement of Order III Rule 2 of Code of Civil Procedure, 1908, it is a question of law which could be raised even at the time of arguing in the appeal under Section 96 of Code of Civil - 11 - HC-KAR NC: 2025:KHC:46793 RFA No. 248 of 2014 Procedure, 1908 is concerned. I find force in the submission of the learned counsel for the appellant that, the suit itself is not maintainable insofar as the claim for recovery of amount from the defendant and therefore, I am of the view that, the appeal requires to be allowed. 15. Hence, I pass the following order : ORDER i) Regular First Appeal is allowed; ii) The impugned judgment and decree passed in O.S.No.3769 of 2011 on the file of the XIX Addl. City Civil and Sessions Judge at Bengaluru City, is hereby set aside. SD/- (E.S.INDIRESH) JUDGE rs List No.: 1 Sl No.: 5 CT-SG