Madras High Court
M/S.Vijayalakshmi Leather Industries vs Lalitha on 1 August, 2023
Author: R.Subramanian
Bench: R.Subramanian
OSA.No.143 of 2017 & A.S.No.370 of 2017
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
O.S.A.No.143 of 2017 & A.S.No.370 of 2017
and
C.M.P.Nos.2799 & 2928 of 2018
O.S.A.No.143 of 2017
M/s.Vijayalakshmi Leather Industries
Private Limited,
No.19, Kumarappa Chetty Street,
Periamet, Chennai – 600 003.
Rep. By its Managing Director,
P.L.Muthukaruppan ...Appellant
Vs.
1.Lalitha
2.Venkata Narayanan
3.Murali
4.Sumitra
5.Selvi
6.K.Narayanan (deceased)
7.P.Leelavati
8.P.Premnath
9.S.Valliammal
10.K.Subramanian
11.N.Banumathi
12.N.Shyamalavannan
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OSA.No.143 of 2017 & A.S.No.370 of 2017
13.N.Harikrishnan
14.N.Yadavakrishnan
(R11 to R14 brought on record as LRs of the
deceased 6th respondent viz., (K.Narayanan) vide
order of Court dt.15.06.2023 made in
CMP.No.12244 of 2023 in OSA.No.143/2017) ...Respondents
Prayer: Original Side Appeal filed under Clause 15 of Letters Patent r/w.
Order XXXVI Rule 9 of the Original Side Rules, against the order and
decreetal order in Appl.No.6126 of 2016 in C.S.No.364 of 2003 dated
01.03.2017.
For Appellant : Mr.T.Arul for Mr.D.Jaysingh
For Respondents : R1 to R5 – Served – No appearance
Mr.T.R.Rajagopalan, Senior Counsel
for Mr.K.Bhanumathi for Mr.V.Manohar
for R11 to R14
R6-Died
R8 to R10 – Notice unnecessary vide Order
of this Court dated 01.08.2023
A.S.No.370 of 2017
1.K.Narayanan
2.N.Banumathi
3.N.Shyamalavannan
4.N.Harikrishnan
5.N.Yadavakrishnan ...Appellants
(Sole appellant died, appellants 2 to 5 are brought on
record as LR's of deceased sole appellant
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OSA.No.143 of 2017 & A.S.No.370 of 2017
viz., K.Narayanan vide Order of Court dated
13.06.2023 made in CMP/12085/2023 in AS/370/2017)
Vs.
1.M/s.Vijayalakshmi Leather Industries Pvt. Ltd.,
Rep. By its Managing Director, P.L.Muthukaruppan,
No.19, Kumarappa Chetty Street,
Periamet, Chennai – 600 003.
2.M/s.Zak Leather Garments (Pvt.) Ltd.,
Represented by its Managing Director,
Ayaz Ahemed,
No.173, Mount Poonamallee road,
Mugalivakkam, Porur, Chennai – 600 116.
3.M/s.Accel Frontline Services Ltd.,
Represented by its Managing Director,
Muglaivakkam, Porur, Chennai – 600 116. ...Respondents
(R2 given up vide Order of this Court dt. 02.03.2018
made in CMP.NO.2829/2018 in AS/370/2017)
Prayer:- First Appeal filed under Section 96 of the Civil Procedure, against
the judgment and decree dated 22.11.2016 passed in O.S.No.29 of 2011 on
the file of the learned III-Additional District Judge, Thiruvallur at
Poonamallee.
For Appellant : Mr.T.R.Rajagopalan, Senior Counsel for
Ms.K.Bhanumathi & Mr.V.Manohar
For Respondent : Mr.T.Arul for Mr.D.Jayasingh for R1
R2 – Given up
R3 – No Appearance
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OSA.No.143 of 2017 & A.S.No.370 of 2017
COMMON JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.) This appeal is at the instance of the plaintiff in C.S.No.364 of 2003, a suit for recovery of damages from the defendants 1 to 5 and 7 to 10. The damages have been claimed under various heads and the finer details may not be required at this juncture.
2.The facts that led to filing of the suit in C.S.No.364 of 2003 are as follows:-
2.1.One Krishnapillai owned vast extent of properties in and around Chennai. One such property is measuring about 16.48 grounds in Survey No.38/1, No.81, Porur Village, Tiruvallur District. A suit was filed by the 6th respondent herein in C.S.No.78 of 1978 seeking partition and separate possession of his ½ share in the suit properties, contending that the properties are ancestral properties. The said suit was however, withdrawn subsequently with leave to file a fresh suit. Thereafter, the 6th respondent herein filed a suit in C.S.No.73 of 1981 seeking partition and separate possession of his ½ share in the property measuring 16.48 grounds as well 4/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 as the other properties.
2.2.During the pendency of the suit, the defendants in the said suit, who are the legal representatives of the other son of Krishnapillai namely, Loganathan sold the entirety of the property to one East Land Manufacturing Company, a partnership firm. The suit in C.S.No.73 of 1981 ended in compromise final decree on 02.01.1989. Under the said compromise, an extent of 8.24 grounds out of 16.48 grounds was allotted to the 6th respondent herein. After the said final decree came to be passed on 02.01.1989, the appellant herein purchased the entire extent of 16.48 grounds from the East Land Manufacturing Company on 21.07.1989.
3.The appellant herein as a subsequent purchaser resisted the execution proceedings pursuant to the final decree by filing various execution applications. The fact that those applications were dismissed and the orders there on were confirmed by this Court is not disputed. In E.P.No.78 of 1997, the Executing Court in fact, ordered delivery on 16.08.2002. Thereafter, the appellant entered into a sale agreement with the 5/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 6th respondent, agreeing to purchase the 8.24 grounds that was allotted to the 6th respondent under the final decree in C.S. 73 of 1981 for a total consideration of Rs.64,00,000/-. He paid an advance of Rs.4,00,000/-. It was agreed that the sale should be completed by 16.07.2003.
4.After having entered into the agreement, the appellant filed a suit in C.S.No.364 of 2003 as aforesaid seeking damages from the other defendants. Though the 6th respondent was impleaded as 6th defendant in the suit, no relief was sought for against him. The appellant issued a notice to the 6th respondent on 15.07.2003, pointing out that the suit in C.S.No.855 of 1994 filed by the sister of the 6th respondent namely, one Loganayaki for partition of her 1/9th share and for setting aside the preliminary decree and final decree in C.S.No.73 of 1981 is pending and the 6th respondent, who is a party to the suit had supressed the pendency of the said suit. He would therefore, seek the 6th respondent to extend the time for execution of sale deed pursuant to the agreement dated 26.02.2003 till disposal of the suit in C.S.No.855 of 1994.
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5.The 6th respondent sent a reply stating that he had informed the appellant of the pendency of the suit even before the agreement. He has also stated that the appellant can withhold the 1/9th of the sale consideration and take a sale deed and 1/9th of the sale consideration could be paid after the permission of the court is taken to dispose of the property. The appellant sent a re-joinder on 31.07.2003 refuting the claims and making it clear that it would buy the property as and when it is allotted to the 6th respondent by the Court or afer the 6th respondent obtains order of the Court enabling him to sell the property. It would also be relevent to point out at this juncture, the appellant got himself impleaded in the suit in C.S.No.855 of 1994. Though an order for impleading the appellant was passed sometime in September, 2003, the plaintiff in the said suit namely, Loganayaki did not take steps to amend the plaint and an application to condone the delay in carrying out to amend the plaint was filed in 2008 and the same was allowed and the amendment was carried out much later.
6.In the interregnum, there was a compromise between the plaintiff in C.S.No.855 of 1994 and the 6th respondent. As a result of the 7/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 compromise, the plaintiff in the said suit gave up her claim against the sixth respondent. She also execute a release deed, relinquishing her share in the property that was allotted to the 6th respondent herein in C.S.No.73 of 1981. The said registered release deed is dated 23.06.2010. A compromise was also recorded by this Court on 02.08.2010. Soon after the recording of the compromise, the 6th respondent filed an independent suit in O.S.No.29 of 2011 on the file of the Additional District Court, Poonamallee seeking recovery of possession on the ground that the appellant has not been ready and willing to perform on his part of the contract and therefore, he cannot retain possession of the property. The appellant was served with notice in the said suit and the Court has recorded service on 09.06.2011.
7.In the plaint in O.S.No.29 of 2011, 6th respondent as the plaintiff has categorically disclosed the fact that the bone of contention between the plaintiff in C.S.No.855 of 1994 and himself has been settled and the Court has also dismissed the suit as against him, apart from stating that a registered release deed has also been executed by the said Loganayaki in respect of the property that was allotted to him under the preliminary decree 8/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 in C.S.No.73 of 1981. The appellant was initially set exparte on 09.06.2011 as there was no appearance on his part and thereafter, an application was filed to set aside the exparte order in I.A.No.77 of 2012 and the same was allowed and a written statement was filed by the appellant in the said suit on 03.08.2012. Thereafter, applications were filed by the plaintiff seeking to transfer the suit in O.S.No.29 of 2011 to be tried along with C.S.No.364 of 2003 and C.S.No.855 of 1994. Those applications came to be disposed of on 07.06.2016. Thereafter, the appellant / plaintiff in C.S.No.364 of 2003 filed the instant application in A.No.3126 of 2016 under Order 6 Rule 17 of the Code, seeking to amend the plaint to include the relief of specific performance of agreement of sale dated 26.02.2003.
8.It is the contention of the appellant that the period during which C.S.No.855 of 1994 was pending i.e., upto to the date on which it was dismissed as withdrawn namely 07.06.2016 needs to be excluded in computing the limitation for filing a suit for specific performance. This was opposed by the 6th defendant contending that the appellant had knowledge of the pendency of the suit even before the agreement and also 9/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 subsequently. Therefore, the claim that the entire period should stand excluded in computing the limitation for the suit is unjust and the same cannot be granted.
9.The learned Single Judge concluded that the prayer sought to be included namely, prayer for specific performance would be barred by limitation and therefore, the application cannot be allowed. On the said finding, the learned Single Judge dismissed the application. Aggrieved, the plaintiff is on appeal.
10.We have heard Mr.T.Arul, learned counsel for the appellant and Mr.T.R.Rajagopalan, learned Senior Counsel for the respondents 11 to 14, who are the legal heirs of the 6th respondent. None appears for the respondents 1 to 5. Notice to the other respondents is deemed unnecessary, considering the fact that the entire dispute is in relation to agreement of sale entered into between the appellant and the 6th respondent. 10/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
11.Mr.T.Arul, learned counsel for the appellant would vehemently contend that the family of the 6th respondent has been consistently perpetrating fraud. In support of his claim, the learned counsel would rely upon the conduct where a suit was filed without impleading the sister in C.S.No.78 of 1978, for partition, and the same was withdrawn. Again, another suit was filed in C.S.No.73 of 1981 without impleading the sister and during the pendency of the suit, the heirs of the other brother, Loganathan sold the property to a third party. After having sold the property to a third party, they had entered into a compromise between themselves and obtained a final decree alloting ½ share of each and every property to the 6th respondent.
12.Not stopping there, another suit was filed in C.S.No.855 of 1994 by the sister of the 6th respondent, seeking to annul preliminary decree and final decree in C.S.No.73 of 1981 and for partition of her 1/9th share. Pending that suit, an agreement of sale was entered into on 26.02.2003 by the 6th respondent with the appellant, keeping the appellant in the dark about the pendency of the suit. There was a partial compromise of that suit in the 11/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 year 2010 wherein, the suit came to be dismissed as agianst the sixth defendant therein / 6th respondent herein on 02.08.2010. A release deed was obtained by the 6th respondent from his sister on 23.06.2010 only with reference to the properties that were allotted to him under the final decree in C.S.No.73 of 1981. Mr.T.Arul, learned counsel would submit that the family of the 6th respondent has been using Court proceedings to cheat others. He would also submit that once it is found that the suit was pending, he would be entitled to extension of time till the disposal of the suit.
13.Contending contra, Mr.T.R.Rajagopalan, learned Senior Counsel for the 6th respondent would submit that the appellant cannot seek extension of time, since he was aware of the fact that the suit was pending when the agreement was entered into itself. He had filed an application to implead himself in the suit and had obtained an order for impleading. The failure to carry out amendment by the plaintiff in the said suit will not affect the right of the 6th respondent. The learned Senior Counsel would also point out that the suit in O.S.No.29 of 2011 was filed on 25.03.2011 and the Court has recorded service on the defendants on 09.06.2011. The plaint in that 12/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 suit particularly, Paragraph 6 discloses the disposal of the suit in C.S.No.855 of 1994 and the execution of the release deed in June, 2010.
14.According to the learned Senior Counsel, even if the appellant is entitled to any exclusion, it could be only upto the date of service of suit summons in O.S.No.29 of 2011. Pointing out that the released deed executed by the plaintiff in C.S.No.855 of 1994 on 23.06.2010 was a plaint document in O.S.No:29 of 2011, the learned Senior Counsel would contend that the plaintiff was aware of the fact that the suit in C.S.No.855 of 1994 has ended in a compromises even on 02.08.2010 and a release deed has been executed by the plaintiff therein in favour of the 6 th respondent on 23.06.2010, when he was served with the plaint in O.S.No.29 of 2011. Since the application for amendment has been filed only in 2016 nearly five years thereafter, the plaintiff is not entitled to exclusion.
15.Drawing our attention to the evidence in C.S.No.29 of 2011, the learned Senior Counsel would submit that in the cross-examination of the plaintiff in the said suit, which was done on 24.01.2013, specific 13/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017 suggestions have to be made regarding the compromise and the release deed marked as Ex.A9 in the said suit. The learned Senior Counsel would point out that the application for amendment has not been filed within three years from the said date also. We have considered the rival submissions.
16.Mr.T.Arul, learned counsel appearing for the appellant would invite our attention to a judgment of the Division Bench of this Court in Lakshminarayana Reddiar vs. Singaravelu Naicker and others, reported in AIR 1963 Mad 24, wherein this Court had held that if it is shown that the judgment debtor had no title to the property which he could convey on the date of the agreement, the limitation for the suit could be extended till they were able to get an order affirming their title from the Court. That was a case where the property was sold in execution of a decree and applications for setting aside the sale in execution were pending. An agreement was entered into during the pendency of the said application and a suit for specific performance came to be filed, after the disposal of the application which was nearly 10 years from the date of the agreement. 14/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
17.A Division Bench of this Court concluded that since the agreement vendors did not have title to the property subject matter of the agreement that was entered into and the parties had specifically agreed that the sale would be completed after the Court auction sale was set aside, the limitation will stand extended. We do not find any such clause in the sale agreement in the case on hand, however even applying this judgment, the limitation could be extended only till the disability ceases. The disability in the case on hand viz., the pendency of the suit in OS No.855 of 1994 ceased as regards the 6th defendant/6th respondent herein on 07.08.2010 when the suit was dismissed as against him, pursuant to the execution of a Release Deed on 23.06.2010 by the plaintiff.
18. The learned counsel for the appellant would contend that he was not aware of the execution of the release deed as well as the compromise since the amendment pursuant to the order impleading him was not carried out. Even accepting the said statement to be correct, the appellant was made aware of the order of dismissal and the execution of the Release Deed through the plaint in OS No.29 of 2011, which was served on them even in the year 2011.
15/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
19.Therefore, in our opinion, the appellant acquires knowledge of the cessation of the disability on service of summons in OS No. 29 of 2011, which was before 09.06.2011. Therefore, the application for amendment should have been filed within a period of three years from the said date. The Application for amendment came to be filed only on 28.09.2016 which is well beyond the period of three years. Therefore, even accepting the contention of the learned counsel for the appellant that he would be entitled to extension, the application has not been filed within the extended period. We are therefore unable to fault the learned Single Judge for having dismissed the application.
20.To the same effect is the judgment of the Division Bench of the Andhra Pradesh High Court in Abdul Hakeem Khan v. Abdul Mannan Khadri reported in AIR 1972 A.P. 178, that was also a case where the vendor’s title was defective. Since we have found on facts that despite the extension of limitation, the application filed for amendment cannot be said to be in time, we do not think we can interfere with the order. 16/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
21.The learned Senior counsel appearing for the 6th respondent would also point out that the inclusion of the relief of specific performance in CS No.364 of 2003 itself is not possible. Pointing out the prayers contained therein the learned Senior Counsel would submit that the relief is beyond the scope of the very suit and it will be adding a relief based on a completely different cause of action in a suit which is not contemplated under Order VI Rule 17 of the Code of Civil Procedure.
22.No doubt, Order VI Rule 17 of the Code of Civil Procedure enables amendment of the plaint at any time and it is very wide but, the application for amendment cannot alter the cause of action or bring in a completely new case which is foreign to the main suit which is pending. The relief of specific performance sought for by way of amendment, in our opinion, will amount to misjoinder of causes of action and will make that suit bad for multifariousness.
17/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
23.The prayers in C.S.No; 364 of 2003 are as follows:
“a) Against defendants 7 and 8 and defendants 1 to 5 for recovery of a sum of Rs.25,37,640/-
b) Against defendant 9, defendants 7 and 8 and defendants 1 to 5 for recovery of a sum of Rs.23,79,180/-.
c) Against defendant 10, defendants 7 and 8 and defendants 1 to 5 for recovery of a sum of Rs.23,79,180/-.
d) Against defendants 7 to 10 and defendants 1 to 5 for recovery of a sum of Rs.10,00,000/- representing the loss caused to the plaintiff on account of the closure of the factory at the rate of Rs.2 lakhs per month from 01.10.2002 till the date of plaint and for recovery of future damages at the rate of Rs.2 lakhs per month from March 2003 till defendants 7 to 10 and defendants 1 to 5 pay the amounts due from them enabling the plaintiff to purchase the Plaint B Schedule property from the 6th defendant.
e) For recovery of a sum of Rs.50,000/- representing the expenses incurred by the plaintiff.
f) Award the cost of the suit and
g) Pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and render justice.” 18/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
24.A bare perusal of the above prayers would show that the relief of specific performance is foreign to the suit. There is no nexus between the suit and the relief of Specific Performance. More over the 6th respondent figures in the said suit only as a formal party. The appellant cannot be allowed to include the relief of specific performance just because the 6th respondent has been added as party to the suit.We are in agreement with the learned counsel on this contention also.
25.In view of the above, the Appeal in OSA No.143 of 2017 will stand dismissed.
26.Adverting to the Appeal in A.S.No.370 of 2017 that is filed against the dismissal of the suit in OS No.29 of 2011, which is one for recovery of possession filed by the 6th respondent against the appellant, the 6th respondent sought for possession of the suit property on the ground that the appellant has failed to comply with the terms of the agreement, therefore it cannot continue in possession.
19/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
27.The said suit was resisted solely on the ground that CS No.855 of 1994 was pending and therefore, the character of possession of the appellant could be decided only after the disposal of the suit. The learned Additional District Judge, Poonamallee agreed with the defence and dismissed the suit. Now that the suit in C.S.No.855 of 1994 stands disposed of and the application for amendment has also been rejected on the ground that the suit for specific performance will be barred by time, we do not think that the appellant can be allowed to retain possession.
28.We are not going into the other questions dealt with by the learned Additional District Judge, since the suit has been dismissed only on the ground that C.S.No.855 of 1994 is pending. That itself is a wrong premise because the suit in C.S.No.855 of 1994 had been withdrawn by the plaintiff in respect of the 6th defendant and the property that was allotted to the sixth defendant even as early as on 07.08.2010. The whole suit was dismissed as withdrawn as against the other defendants also on 07.06.2016. 20/23 https://www.mhc.tn.gov.in/judis OSA.No.143 of 2017 & A.S.No.370 of 2017
29.The other reason of the learned Additional District Judge that the pendency of the present suit in C.S.No.364 of 2003 would help the appellant is wholly irrational. The suit property which is covered by the agreement and the suit in OS No.29 of 2011 is not the subject matter of C.S.No.364 of 2003. CS No.364 of 2003 is a suit only for damages against the other defendants, though the sixth defendant is made a party to it, no relief has been claimed against him.
30.We are convinced that the judgment and decree of the Trial Court needs to be set aside and the Appeal should be allowed. Hence A.S.No.370 of 2017 is allowed, the suit in OS No.29 of 2011will stand decreed as prayed for. However, we make no order as to costs in these two Appeals. Consequently, connected miscellaneous petitions are closed.
(R.S.M.,J.) (R.K.M.,J.)
01.08.2023
kkn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
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Nuetral Citation : Yes/No
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
To:-
The III-Additional District Court,
Tiruvallur.
O.S.A.No.143 of 2017 & A.S.No.370 of 2017
and
C.M.P.Nos.2799 & 2928 of 2018
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