Delhi District Court
Shri Manoj Kumar Khosla vs Punjab National Bank on 31 January, 2012
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)17,DELHI
Suit No. 446/09/06
Shri Manoj Kumar Khosla
S/o late Shri M.P. Khosla
R/o Khosla Farm,
M.G. Road, Sultanpur,
New Delhi
.......Plaintiff
Versus
Punjab National Bank
Service Affected through
Chairman
7-B, Bikaji Cama Place,
New Delhi-66 .........Defendant
Date of Institution of Suit : 12.10.2006
Date when reserved for orders : 13.01.2012
Date of Decision : 31.01.2012
JUDGMENT
1 Vide this judgment I shall decide the suit for recovery of Rs. 6,20,702/- filed by the plaintiff against the defendant. Brief fact necessitating in filing the present suit are given as under-:
That the plaintiff was the owner of the immovable property bearing no. 105, 115 ( part) and 116, Rattan Jyoti Building, Rajendra Place, New Delhi. The defendant was inducted as a tenant in the above property w.e.f 18.4.1981 vide lease agreement dated 27.8.82. The defendant was liable to pay the maintenance charges to the builder during its occupation in the said property. The plaintiff came to know from the builder that defendant had not paid the maintenance charges. The plaintiff requested the defendant to pay maintenance charges to the builder as per lease agreement. However the defendant refused to pay the said maintenance charges. The plaintiff having no other remedy available had to deposit the said charges with the builder. As per the plaintiff, the defendant is liable to pay the said amount to the plaintiff because the said amount has been paid by the plaintiff to the builder on behalf of the Suit no. 446/09/06 1/17 defendant as it was the liability of the defendant. The plaintiff served a legal notice upon the defendant, but the defendant refused to pay the same despite the receipt of the legal notice. On the basis of the above facts, the present suit has been filed by the plaintiff against the defendant.
2 The suit was initially filed under Order 37 CPC. Summons for appearance were served upon the defendant who file its appearance as per law, pursuant to which plaintiff served summons for judgment upon the defendant who filed leave to defend application to contest the suit. The said application was allowed by ld. Predecessor of this court vide order dated 9.7.2007 and it was allowed to contest the suit unconditionally.
3 The defendant filed written statement taking preliminary objection that the plaintiff has no legal and valid cause of action to claim the amount. That the plaintiff has no locus standi to claim maintenance chargers. That the suit is barred by time. That the suit is barred by the principle of Order 2 Rule 2 CPC. That there is no privity of contract between the parties.
4 On merit it is stated that plaintiff had earlier filed a suit for possession and a decree for possession which was decreed vide order dated 15.07.2008 on an application under Order 12 Rule 6 CPC filed by the plaintiff. The defendant had handed over the possession of the premises to the plaintiff on 27.02.2004. In that suit plaintiff has neither reserved his right to recover the maintenance charges nor any permission was sought from the said court to file a separate suit for recovery of maintenance charges. It is further averred that plaintiff has not furnished the details with regard to the arrear of the maintenance charges and name of the builder who was entitled to recover the said maintenance charges, if any from the defendant. As per the defendant there has been no legal demand made by the builder, therefore, defendant was not under obligation to make the payment. It is further averred that plaintiff is neither entitled to claim an amount of Rs. 6,20,702/- nor entitled for any interest Suit no. 446/09/06 2/17 thereon. All other averments have also been replied. It is prayed that suit be dismissed with cost.
5 On the basis of the pleadings of the parties, the ld. Predecessor of this court vide order dated 14.09.2007 framed the following issues for adjudication:-
1. Whether the plaintiff is entitled to a sum of Rs. 3,20,082.59 as maintenance charges from the defendant? OPP
2. Whether the plaintiff had paid the said amount to the builder on behalf of the defendant ? OPP
3. Whether the plaintiff is entitled to a sum of Rs. 1,62,954.80 as interest till 31.3.2005 from the defendant? OPP
4. Whether the plaintiff is entitled to a sum of Rs.1,37,664/- as interest from 1.4.2005 to September, 2006 from the defendant? OPP
5. Whether the plaintiff has no locus standi to file the present suit, if so its effect ? OPD
6. Whether the claim of the plaintiff is barred by limitation? OPD
7. Whether the suit is barred under Order II Rule 2 CPC ? OPD
8. Whether there is no privity of contract between the plaintiff and the defendant? OPD
9. Relief
6 The plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. He exhibited the lease deed dated 27.08.81 as Ex. PW-1/A, circular of the builder R.C. Sood and Company Pvt. Ltd. as Ex. PW-1/B, Letter dated 12.02.1979 and 18.04.1981 as Ex. PW-1/C & D, Legal notice dated 15.07.2003 as Ex. PW-1/E, Acknowledgement receipt dated 09.10.2003 as Ex. PW-1/E1, Letter dated 21.02.2004 and 27.02.2004 as Ex. PW-1/F & G, Legal notice dated 20.05.2004 as Ex. PW-1/H, Invoices as Ex. PW-1/J1, J2 & J3, letter dated 18.09.2004 alongwith invoices dated 1.10.2004 as Ex. PW-1/K, K1 and K2, letter dated 5.11.2004 and 22.11.2004 as Ex. PW-1/L, M & N, Suit no. 446/09/06 3/17 letter for bifurcation of bills dated 25.01.2005 & 31.01.2005 as Ex. PW-1/ O & P, the Letters dated 25.01.2005 as Ex. PW-1/Q, R & S, receipt dated 19.02.2005 as Ex. PW-1/T1 & T2, no due certificate Ex. PW-1/U, Legal notice dated 18.9.2006 with acknowledgment receipt as Ex. PW-1/V & W. 7 The Plaintiff has also examined Sh. Sanjay Malaker, Assistant Manager (Accounts) in M/s Ajay Enterprises Pvt. Ltd as PW-2.
8 The Defendant has not led any evidence in support of its case despite opportunities.
I have heard ld. Counsel for the parties and perused the documents, pleadings, evidence and other material on record. My issuewise findings is as under:-
Issue no. 1 : Whether the plaintiff is entitled to a sum of Rs. 3,20,082.59 as maintenance charges from the defendant? OPP Issue no. 2 :Whether the plaintiff had paid the said amount to the builder on behalf of the defendant ? Opp Issue no. 3: Whether the plaintiff is entitled to a sum of Rs. 1,62,954.80 as interest till 31.03.2005 from the defendant? OPP
9 Issue no. 1, to 3 are taken together. The plaintiff has taken a plea that he inducted the defendant as a tenant with respect to the flat bearing no. 105,115 and 116, situated at Rattan Jyoti Building, Rajendra Place, New Delhi vide agreement dated 27.08.1982. The defendant was liable to pay maintenance charges to the builder directly which it did not pay despite the request, therefore the plaintiff having left no other remedy had to deposit the said maintenance charges with the builder on behalf of the defendant to which defendant is liable to re-imburse the plaintiff. However, despite the service of the legal notice the defendant has failed to pay the said amount.
10 On the other hand defendant has taken a plea that by virtue of the agreement, maintenance charges, if any, were to be claimed by the Suit no. 446/09/06 4/17 builder, however, maintenance agency had not issued any demand notice to the defendant claiming any such maintenance charges for the period of its occupation in the premises. Therefore, defendant was under no obligation to make any such payment to the maintenance agency. As per the defendant it is not liable to pay any such amount claimed by the plaintiff.
11 In order to substantiate his claim plaintiff has examined himself as PW-1 who reiterated the averment made in the plaint in his examination in chief. During cross-examination PW-1 briefly deposed that as per Ex. PW-1/1 the maintenance charges was to be paid directly by the defendant to the builder and there is no clause regarding payment of interest with regard to the delayed payment in rent or maintenance charges. He admitted that till the filing of the suit for possession in the year 1993 Kumar Construction had never demanded any maintenance charges payable by the defendant from the plaintiff. He admitted that PW-1/D1 is the true certified copy of the plaint filed by the plaintiff. He also admitted that in the plaint Ex. PW-1/D1, the plaintiff has not claimed maintenance charges from the defendant. He also admitted that Ex. PW-1/D2 is the certified copy of the order dated 15.07.2003 passed by Shri Vikas Dhull, ld. Civil Judge, Delhi and Ex. PW-1/D3 is the certified copy of the order passed by Shri Manish Gupta dated 8.4.2005 in that suit. He also admitted that plaintiff being unsatisfied with the order fixing the damages filed an appeal with regard to quantum of damages which was partly enhanced. He also admitted that even in the appeal maintenance charges were not claimed. He admitted that possession was taken on 27.02.2004. He also admitted that till 2004, neither Kumar Constructions nor R.C. Sood & Co. successor of Kumar Construction claimed maintenance charges from the plaintiff in respect of premises under the tenancy of the defendant and payable by the defendant. He also admitted that in Ex. PW-1/D4 previous arrears due has been mentioned as on 15.03.2004 while in Ex. PW-1/D5 it is mentioned as 31.03.2004. He also admitted that in Ex. PW-1/D4 and Ex. PW-1/J1 to J-3 details of arrears of Suit no. 446/09/06 5/17 maintenance are not mentioned with respect to exact period or exact date. He volunteered that the details are mentioned in Ex. PW-1/O and Ex. PW-1/P. He further stated that he has no knowledge whether any demand for the maintenance charges not paid by the defendant to the builder were raised by the builders on the defendant or not. He admitted that Ex. PW-1/D6 is the true certified copy of the order passed in suit no. 216/94. He also admitted that an appeal was filed against the order dated 27.07.1996 and same was dismissed. He admitted that Ex. PW-1/D7 is the certified copy of the plaint in respect of suit no. 216/94 and Ex. PW-1/D8 is the written statement filed by Kumar Constructions and the proceedings are Ex. PW-1/D9.
PW-1 also admitted that suit was ultimately dismissed on 6.5.2004. He also admitted that plaintiff has not filed any suit for recovery of maintenance charges payable by the defendant to the builder. He does not know whether the builder had filed any suit against the defendant claiming maintenance charges. He further stated that he does not know as to how much amount and for which period, amount was claimed by the builder from the defendant. He admitted that defendant is not liable to make the payment of maintenance charges w.e.f 27.02.2004. He stated that builder informed him that the amount outstanding towards maintenance charges from the defendant pertain to the period during which the defendant remained in occupation of the premises. Although defendant had been making part payments as told by the builder. He further stated that the statement provided by the builder has already been placed on record as Ex. PW1/4 and Ex. PW-1/P which pertains to the period commencing from 1.4.92 to 31.4.2004 whereby a sum of Rs. 18,72,010.59 P was demanded however he negotiated with the builder and the claim of the maintenance charges was negotiated with the builder at Rs. 4,83,037.39 P. He further stated that he had paid the maintenance charges alongwith the other dues to the builder on 5.2.2005 vide Ex. PW-1/T-1 and PW-1/T-2. He admitted that these receipts Ex. PW1/P1 and P-2 include the maintenance charges up to 31.05.2005. He denied that plaintiff is not entitled to claim maintenance charges and or interest.
Suit no. 446/09/06 6/1712 The Plaintiff has also examined Sh. Sanjay Malakar, Assistant Manager as PW-2.
13 The defendant has not led any evidence in order to substantiate its plea despite various opportunities.
14 The short question for consideration is whether in these circumstances the defendant is bound to re-imburse the plaintiff for the maintenance charges and interest payable and paid for the period of defendant's enjoyment of the property. The claim of the plaintiff is based on Section 69 of the Indian Contract Act 1873 which runs as under Section 69 of the Indian Contract Act runs as under " A person who is interested in the payment of money which another is bound by law to pay, and should therefore pays it, is entitled to be re-imbursed by the other.
15 For a claim to be sustained under Section 69 of the Act, the plaintiff must established three things (1) That defendant was bound by law to pay the amount in question ( 2) That plaintiff was interested in payment of the money ( 3) He, therefore, paid the money. The payment to the third party must be because of the interest the plaintiff had in the payment. It must not be an officious and voluntarily one. The scope of Section is manifest, it affords to the person who pays money because he has himself an interest in making the payment, an indemnity in respect of the payment against a person who should have made the payment should rather then he, could have made liable at law to make the payment. The word "bound by law to pay in Section 69 do not exclude those obligations of law which arise inter parties whether by contract or tort and are not confined only to those public duties which are imposed by statute or general law as held in Govindram Vs State of Gondal, AIR 1950 PC 99.
16 It is an admitted case of the parties that plaintiff had let out his flats bearing No. 105, 115 ( part ) and 116, Rattan Jyoti Building, Rajendra Place, New Delhi to the defendant vide lease agreement Ex.
Suit no. 446/09/06 7/17PW-1/A. It is also not disputed that defendant agreed to pay maintenance charges and other charges during its occupation to the builder directly as mention in the letter of the defendant dated 18.04.1981 Ex. PW-1/D1. As per the plaintiff , the defendant had not paid the maintenance charges to the builder during its occupation despite the request of the plaintiff, therefore, plaintiff had to deposit those charges with the builder in order to get the NOC. The defendant in its written statement has not disputed the material fact but has raised an objection that the detail of maintenance charges have not been provided.
17 The plaintiff has examined himself as PW-1 and reiterated the averment qua the liability of the defendant to pay the maintenance charges in para 4 & 8 of his examination in chief. PW-1 has been throughly cross-examined by the defendant, however, his deposition made in para 4 & 8 of his examination in chief has not been challenged by the defendant during his cross-examination. During cross-examination PW-1 was given a suggestion that as per Ex. PW-1/A, the maintenance chargers was to be paid directly by the defendant to the builder and in Ex. PW-1/A there is no clause regarding the payment of interest with regard to the delayed payment in rent or maintenance charges. The said suggestion has been admitted by PW-1. He has also admitted that defendant was not in possession of the premises w.e.f 27.02.2004 and as such defendant is not liable to make the payment w.e.f 27.02.2004. The ramification of the above suggestion is that the defendant has admitted that it was liable to pay maintenance charges to the builder directly under the contract with the plaintiff. The defendant further admitted that it was liable to pay such charges till 27.02.2004 i.e till it remained in occupation of the flat in question.
18 As per the plaintiff, the defendant had not paid the maintenance charges during his occupation, therefore, the builder had raised that claim against him vide invoices Ex. PW-1/J1 to Ex. PW-1/J3. The plaintiff made requests to defendant to make the said payment, Suit no. 446/09/06 8/17 however, he has failed to make such payment, consequently the plaintiff negotiated with the builder vide document Ex. PW-1/P which shows that an amount of Rs.3,20,082.59 was payable towards the maintenance charges and a sum of Rs. 151,5192/-was charged as interest over the said amount by the builder. The plaintiff negotiated the said amount with the builder who agreed to receive a sum of Rs. 4,83,37.39 only in lieu of its claim.
19 A perusal of Ex. PW-1/O & PW-1/P clearly shows that it includes charges for a period from 1.4.2004 to 30.09.2004, however, the defendant was not in occupation of the premises during that period, thus the defendant is not liable to pay Rs. 15485/- charges towards maintenance and Rs. 2253/- charges towards replacement fund for that period. Thus an amount of Rs. 17,738/- is to be deducted from the above charges as mentioned in Ex. PW-1/P. Thus the defendant is liable to pay a sum of Rs. 3,02,344.59 towards the maintenance charges and other charges to the builder. The plaintiff has deposited that maintenance charges with the builder vide Ex. PW-1/Q and interest vide Ex. PW-1/S consequently the builder has issued No due certificate Ex. PW-1/U and receipt of the said amount as Ex. PW-1/T1.
20 The defendant has not placed any material on record which can show or suggest that it was not liable to pay the outstanding maintenance charges and other charges to the builder or it had paid the maintenance charges to the builder till it occupied the premises. The plea raised by the defendant in the written statement that the builder had never raised any such demand against the defendant, therefore, defendant is not liable to pay the said amount remained unsubstantiated and unproved as the defendant has not led any evidence in support of their case.
On the other hand plaintiff has proved on record that defendant was inducted as tenant who remained in premises till 27.02.2004. He has also proved that defendant was liable to pay the maintenance charges and other charges to the builder directly as per the contract entered into between the plaintiff and the defendant. However, Suit no. 446/09/06 9/17 the defendant has failed to clear the maintenance charges and other charges, consequently the plaintiff had to pay the said charges on behalf of the defendant, therefore, the defendant is liable to re-imburse the plaintiff with respect to those charges.
21 In view of my above discussion, my issuewise findings is as under:
Issue No. 1: The Plaintiff has proved on record that defendant was bound by contract to pay the amount of maintenance charges and other charges to the builder for the period of its occupation in the suit property, however, he has failed to pay the same. The plaintiff being the owner of the property was interested in making the payment because without making the said payment the builder had refused to issue NOC, consequently the plaintiff has deposited the said amount with the builder on behalf of the defendant. The plaintiff has made the said payment on behalf of the defendant, therefore defendant is liable to re-imburse the plaintiff. The plaintiff is thus entitled to recover a sum of Rs. 3,02,344.59 from the defendant. The plaintiff has discharged the onus of issue no. 1, same is accordingly decided in favour of the plaintiff.
Issue no. 2: The plaintiff has proved on record that he has deposited the amount for the maintenance and other charges with the builder on behalf of defendant. The plaintiff has thus discharge the onus of issue no. 2, same is accordingly decided in favour of the plaintiff. Issue no. 3: The defendant had failed to pay the maintenance charges and other charges to the builder during its occupation, therefore, the builder has charged an interest over the said amount. The plaintiff was forced to pay the interest of Rs. 1,62,981/- which he has paid vide cheque No. 4765257 dated 31.01.2005 as mentioned in Ex. PW-1/S which has been accepted by the builder who issued receipt Ex. PW-1/T1 to that effect. The said amount towards interest on delayed payment has been paid by the plaintiff on behalf of the defendant. The plaintiff is, therefore, entitled to recover the said amount from the defendant. The plaintiff has thus discharged the onus of issue no. 3, same is accordingly decided in Suit no. 446/09/06 10/17 favour of the plaintiff.
22 Issue no. 4: Whether the plaintiff is entitled to a sum of Rs.
1,37,664/- as interest from 1.4.2005 to September, 2006 from the defendant ? OPP The plaintiff has claimed a sum of Rs. 1,37,664/- towards the interest up till September 2006 as well as Pendentile and future interest @ 24% p.a. Undoubtedly plaintiff has not placed any material on record which can shows that any such rate of interest was agreed between the parties, moreover PW-1 during his cross-examination himself has stated that no amount towards the interest was payable on delayed payment. However fact remains that the plaintiff was compelled to pay the amount to the builder on behalf of the defendant which the defendant was under
obligation to pay to the builder. However, it had failed to do so. Consequently plaintiff was compelled to pay the said amount on its behalf. The defendant was thus liable to reimburse the plaintiff as per Section 69 of the Contract Act. However, it failed to pay that said amount to the plaintiff despite the service of the legal notice thus made itself liable to pay interest over the said amount.
Interest is not a penalty or punishment but is a normal accretion on capital. If the plaintiff had invested the said amount somewhere he would have earned interest thereto but he was forced to pay that amount to the builder on behalf of the defendant, therefore, equity demands that defendant should pay interest on the said amount.
Taking into consideration the facts and circumstances of the case as well as prevailing economic condition of the country, I am of the considered view that interest of justice would be served if the plaintiff is awarded interest @ 9% simple from 1.4.2005 till the actual realisation of the amount. Issue no. 4 is accordingly decided.
23 Issue no. 5: Whether the plaintiff has no locus standi to file the present suit, if so its effect? OPD The onus to prove this issue is upon the defendant, however, defendant has not led any evidence, thus, failed to discharge the onus of Suit no. 446/09/06 11/17 this issue while deciding issue no. 1 I have held that plaintiff is entitled to recover the said amount from the defendant which has paid on behalf of defendant. Therefore, plaintiff has locus standi to file the present suit against the defendant. The defendant has thus failed to discharge the onus of issue no. 5, same is accordingly decided against the defendant.
24 Issue no. 6: Whether the claim of the plaintiff is barred by limitation? OPD The defendant has taken a pleas in para 4 of preliminary objection that the claim of the plaintiff is barred by time, however it has not elaborated as to how the claim of the plaintiff is barred by limitation. The defendant has also not led any evidence in order to substantiate its plea. The suit of the plaintiff is based on the fact that there was a contract between the plaintiff and the defendant whereby defendant had agreed to pay the maintenance charges and other charges directly to the builder. However, it had failed to pay those charges to the builder consequently the plaintiff was compelled to pay the said amount on behalf of the defendant. The plaintiff could have recovered the said amount under Section 69 of the Contract Act from the defendant only once he had paid the said amount to the builder. The plaintiff has paid the said amount to the builder on 24.01.2005 and 31.1.2005 vide receipt Ex. PW-1/T1, therefore, cause of action for seeking recovery of the said amount accrued in favour of the plaintiff on 24.01.2005 and 31.01.2005. The suit for recovery of the said amount paid by the plaintiff on behalf of the defendant could have been filed within three years from that date. The instant suit has been filed on 12.10.2006 i.e within three years from the commencement of the cause of action.
25 The Hon'ble Nagpur High Court in Tota Ram Jawahar lal Kalwar Vs. Harish Chand Harkishan Raja Khatri AIR 1937 Nagpur 403 has held that " The right to be reimbursmed arises under Section 69 of the Contract Act on a contract either express or implied to reimburse, and the limitation is three years from the date on which the money was paid."
Suit no. 446/09/06 12/1726 In the instant case the money was paid by the plaintiff vide receipt Ex. PW-1/T1 on 24.01.2005 and 31.01.2005. The suit could have been filed up to 31.01.2008. The instant suit has been filed on 12.10.2006 i.e within the period of three years from the date of making the payment, same is thus within the period of limitation. The defendant has thus failed to discharge the onus of issue no. 6, same is accordingly decided against the defendant.
27 Issue No. 7: Whether the suit is barred under Order II Rule 2 CPC? OPD The defendant has taken a plea that the plaintiff had earlier filed a suit for possession and recovery of rent/mesne profit in February 1994 being suit no. 98/04. In that suit the plaintiff had neither reserved his right to claim the maintenance charges nor sought permission from the said court to file a separate suit. The said suit was decreed on 15.07.2003 pursuant to which defendant vacated the premises on 27.02.2004, therefore, the present suit is barred under Order 2 Rule 2 CPC. It has further pleaded that plaintiff had also filed another suit for permanent injunction being suit no. 26/94 wherein it was prayed that defendant may be directed to pay maintenance charges however, the said suit was dismissed in default on 6.5.2004.
28 Ld. Counsel for the defendant contended that the present suit is barred under Order 2 Rule 2 CPC as the relief claimed by way of present suit could have been claimed in the previous instituted suit by the plaintiff, however, he has failed to do so without the leave of the court , therefore, the present suit is not maintainable and is liable to be dismissed under Order 2 Rule 2 CPC.
29 On the other hand ld. Counsel for the plaintiff contended that cause of action for the previous suit and the cause of action for the present suit are altogether different and Order 2 Rule 2 CPC is not applicable in Suit no. 446/09/06 13/17 the present case.
30 Order 2 Rule 2 of the Civil Procedure Code lays down the general principle that a suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action and if he does not do so then he is visited with the consequences indicated therein. It provides that all reliefs arising out of the same cause of action shall be set out in one and the same suit and further prescribes the consequences if the plaintiff omits to do so. Order 2 Rule 2 CPC reads as under:-
(2) Suit to include the whole claim-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;
but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
31 A perusal of the above clearly shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the same cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as Sub rule (3) is concerned before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had Suit no. 446/09/06 14/17 failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 11, Rule 2 sub-rule ( 3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and he had not obtained leave of the court in that connection, he cannot sue for that relief in the present suit.
32 A constitution Bench of Hon'ble Supreme Court of India in Gurubux Vs Bhoora Lal reported as AIR 1964, SC 1810 has held that "
an order that a plea of a bar under Order 2 Rule (3) CPC should succeed the defendant who raise the plea must make out (1) that second suit was in respect of the same cause of action as that of which the previous suit was based, ( 2) that in respect of that cause of action, the plaintiff was entitled to more than one relief ( 3) that being thus entitled to more than one relief, the plaintiff without leave obtained from the court, omitted to sue for the relief which the second suit had been filed. From this analyses it would be seen that the defendant would have to establish primarily and to start with the precisely cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.
33 It is admitted case of the parties that the plaintiff earlier had filed a suit for possession ,damages and mesne profit against the defendant, certified copy of the plaint is Ex. PW-1/D1. The said suit was decreed vide order dated 15.07.2003 Ex. PW-1/D2. A perusal of the plaint of the previous suit Ex. PW-1/D1 shows that said suit was filed by the plaintiff herein against the defendant who was a tenant in the premises, on the ground that the tenancy of the defendant was terminated vide legal notice dated 23.08.1993 which was served upon the defendant but despite the service of legal notice defendant had failed to vacate the said premises. On that basis the said suit for possession, recovery of rent and Suit no. 446/09/06 15/17 mesne profit was filed by the plaintiff against the defendant.
34 The plaintiff had also filed a suit for permanent and mandatory injunction against the defendant as well as M/s Kumar Constructions Ltd. Copy of the plaint is Ex. PW-1/D7.
35 A perusal of the plaint is Ex. PW1/D1 and Ex. PW-1/D7 alongwith the present plaint shows that cause of action for filing the previous suit for possession against the defendant was different from the cause of action of the present suit. It further shows that a cause of action for filing the suit for permanent injunction against the defendant was also different from the cause of action of the present suit. The plaintiff filed a suit for possession against the defendant on the basis that defendant failed to deliver of the premises to the plaintiff despite the termination of the tenancy whereas the cause of action for filing permanent injunction was that defendant had failed to deposit the maintenance charges whereas the cause of action for the present suit is that the plaintiff has deposited the amount of Maintenance charges etc the with builder on behalf of the defendant, but the defendant has not reimbursed the plaintiff, 36 The plaintiff could not have claimed the relief sought by way of present suit in the previous suits as the cause of action for filing the present suit was not available at that stage. It is an admitted case of the parties that defendant was to pay the maintenance charges directly to the builder and not to the plaintiff. The claim of the plaintiff in the present suit is based on Section 69 of the Contract Act, therefore, he could not have claimed the amount of maintenance charges from the defendant unless and until same have been paid by him to the builder on behalf of the defendant. The builder raised the demand qua the maintenance charges from the plaintiff. The plaintiff has deposited the amount of maintenance charges and interest with the builder on 24.01.2005 and 31.01.2005 by a cheque which have been received by the builder vide his receipt Ex. PW-1/T1, therefore the plaintiff has got cause of action to recover the said Suit no. 446/09/06 16/17 amount after he made the said payment.
37 The cause of action for filing of the present suit is altogether different from the cause of action of the previously instituted suit filed by the plaintiff against the defendant and the relief sought by the plaintiff by way of present suit was not at all available or could not have been claimed at the time of filing of the previous suits, therefore, order 2 Rule 2 CPC is not applicable in the facts and circumstances of the present suit.
In view of the above facts and circumstances, I am of the considered view that the present suit is not barred under Order 2 Rule 2 CPC. The Defendant has failed to discharge the onus of issue no. 7, same is accordingly decided against the defendant.
38 Issue no. 8 Whether there is no privity of contract between the plaintiff and the defendant ? OPD The Defendant has taken a plea that there is no privity of contract between the plaintiff and the defendant, however, defendant has not led any evidence in order to substantiate its plea. In the absence of any evidence the plea taken by the defendant remained un-substantiate. The defendant has thus failed to prove on record that there is no privity of contract between the plaintiff and the defendant. The Defendant has thus failed to discharge the onus of issue no. 8, same is accordingly decided against the defendant.
39 Relief In view of the above, the suit filed by the plaintiff is decreed with cost. A decree for a sum of Rs. 4,65,299.49 is passed in favour of the plaintiff and against the defendant alongwith interest @ 9% p.a simple w.e.f 1.4.2005 till the actual realization of the amount. Decree Sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
on 31st January, 2012 Additional District Judge
Delhi
Suit no. 446/09/06 17/17
Suit no. 446/09/06 18/17