Bangalore District Court
Navkesh Batra S/O Late Dr.M.C.Batra vs M/S Kamani Tubes Ltd on 25 October, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 25th day of October 2016.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.4641/2015
PLAINTIFF Navkesh Batra S/o late Dr.M.C.Batra, aged
about 56 years, r/a no.202, Promenade,
76/3, Nandidurga road, Bangalore - 560 046.
(By Sri. Janekere C.Krishna & Mahendra
Kumar - Advocates)
- V E R S U S -
DEFENDANTs 1. M/s Kamani Tubes Ltd., a company
incorporated under the Companies Act,
1956, having its registered office at :
Kamani Chambers, 32, Ramjibhai Kamani
Marg, Ballard Estate, Mumbai - 400 038,
represented by Ms.Kalpana Saroj,
Chairperson and Mr. Mannan K.Gore,
Managing Director.
2. M/s M.J.R. Developers Pvt.Ltd., a
company incorporated under the
Companies Act, 1956, having its
registered office at: no.54, 2nd floor,
12th main, 17th cross, Sector-6, HSR
layout, Bangalore-560 102, represented
by Mr.S.Jayarama reddy, Chairman and
Director and Mr. Madhu Tarlamal -
Director.
2 O.S.No.4641/2015
(Defendants placed exparte)
Date of institution of the suit : 1.6.2015
Nature of the suit (suit on Suit for declaration and injunction
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 24.2.2016
recording of the evidence :
Date on which the Judgment was 25.10.2016
pronounced :
Total duration Year/s Month/s Day/s
01 04 24
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiff has filed a suit against the defendants with a prayer to pass judgment and decree declaring that the plaintiff is discharged and relieved from all the obligations or liability to the defendants in respect of holding the custody of the original joint development agreement and discharging and dismissing the plaintiff from the suit leaving it to the defendants to contest the case for custody of the said original joint development agreement and directing the defendants be required to interplead together concerning their claims to the said 3 O.S.No.4641/2015 joint development agreement, awarding cost of the suit and such other reliefs.
2. The brief averments of the plaint are that the plaintiff is a practicing advocate. On 2.11.2011, the first defendant represented by Mrs. Kalpana Saroj and Mannan K.Gore and defendant no.2 represented by Mr.Jayarama Reddy visited the office of the plaintiff and executed a joint development agreement. Immediately after executing the JDA, the aforesaid persons handed over the said JDA to the plaintiff with joint oral instructions to hold the same in escrow for a brief period within which both parties would jointly instruct release of the said JDA. Thereafter the plaintiff in the presence of the said Mrs. Kalpana Saroj, Mr.Mannan K.Gore and Mr. Jayaramareddy, put the JDA in a Nandi Law Chambers cover and stapled the cover and thereafter the plaintiff and the aforesaid persons signed on the said cover at six different places and sealed it with cellophane tape and handed over the custody of the said cover to the plaintiff. 4 O.S.No.4641/2015 It is further stated that the disputes have arisen between the defendants in respect of the development of the said land. On 3.5.2015 Mrs.Kalpana saroj called the plaintiff on his mobile phone to reconfirm whether the plaintiff was still holding the sealed cover and instructed the plaintiff not to release the said JDA/sealed cover. Thereafter, on the same day, Mr.Jayarama reddy also called the plaintiff on his mobile phone and instructed the plaintiff to release the said JDA/sealed cover to him. The plaintiff informed them that he was holding the said JDA in escrow and would not release it except with the concurrence of and in the presence of both parties and if any of the parties had any objection to the release of the document, the plaintiff would file an interpleader suit.
3. It is further stated that on 5.5.2015 Jayarama reddy and Madhu Tarlamal again requested the plaintiff to release the said JDA. Thereafter, the plaintiff called Mrs.Kalpana Saroj and the call was answered by Mannan Gore who requested that the said JDA be continued to be 5 O.S.No.4641/2015 held by the plaintiff in escrow. It is further stated that the plaintiff repeatedly informed both the parties that he was holding the document in escrow and he would not release the document unless both the parties consent to the same. It is further stated that the plaintiff sent an e- mail on 5.5.2015 to the defendants calling upon them to visit the plaintiff's office to enable the plaintiff to open the envelope in the presence of both the parties and handover the said JDA. The said e-mail was also sent by speed post on 6.5.2015 and that has been received by the parties. In the e-mail dated 11.5.2015 Mr. Mannan Gore replied to the plaintiff stating that he would require some time to reply formally to the plaintiff's e-mail dated 5.5.2015. On the same day, the plaintiff replied to the said e-mail stating that he would not wish to hold the document in escrow and that if the parties/defendants would not come together to the plaintiff's office on 12.5.2015 and mutually agree that the said JDA be released from escrow and to receive the said JDA, the 6 O.S.No.4641/2015 plaintiff would give instructions to file an interpleader suit. Adding that, if before filing the interpleader suit, the parties come and request the plaintiff, the plaintiff would open the cover in the presence of both the parties and handover the said JDA against a written acknowledgement by the parties discharging the plaintiff there from unconditionally. It is further stated that the plaintiff's rejoinder e-mail dated 11.5.2015 to Mannan Gore was copies to Ms. Kalpana Saroj, Jayarama reddy and Madhu Tarlamal and also dispatched the same by speed post dated 11.5.2105 and all the parties have received the same. Thereafter, none of the parties visited the office of the plaintiff and no reply was received to the plaintiff's rejoinder dated 11.5.2015. Having no other alternative, the plaintiff constrained to file the interpleader suit seeking permission to deposit the JDA in the custody of the court to be kept in safe custody and to be dealt with in the manner required under law. 7 O.S.No.4641/2015
4. After registering the suit, the suit summons was issued to the defendants. Inspite of service of suit summons, the defendant nos.1 & 2 have failed to appear before the court and they were placed exparte.
5. The plaintiff in order to prove his case, he himself examined before the court as PW.1 and got marked Exs.P.1 to P.11 documents.
6. The learned Counsel appearing for the plaintiff relied on a decision reported in (1919)21 Bombay Law Journal 948 -Khemchand Issardas Vs. Kairuddin Ranglahi.
7. Heard the learned Counsel appearing for the plaintiff.
8. The points that would arise for my consideration are:
1. Whether the plaintiff is entitled for the judgment and decree as prayed ?
2. What order ?
9. My findings on the above issues are as follows: -
Point no.1: In the affirmative 8 O.S.No.4641/2015 Point no.2 : As per final order for the following:
REASONS
10. Point no.1: The plaintiff i.e., PW.1 in line with the plaint averments on oath has stated that he is a lawyer by profession. On 2.11.2011, the first defendant represented by Mrs. Kalpana Saroj and Mannan K.Gore and the defendant no.2 represented by Jayarama reddy visited his office and they executed JDA contained in Ex.P.1 sealed cover in respect of Sy.nos.195/1(2 acres 27 guntas) and Sy.no.95/2 (1 acre 11¾ guntas), situated at Mahadevapura village, Krishnarajapuram Hobli, Bangalore. Thereafter, the said persons orally instructed the plaintiff i.e., PW.1 to hold the registered JDA in escrow for a brief period within which both parties would jointly instruct the plaintiff to release the said JDA.
11.The recitals of Ex.P.2 discloses that the plaintiff issued a letter to both the defendant nos.1 & 2 and requested them to visit his office, so that he could open the envelope in the presence of both the parties and 9 O.S.No.4641/2015 handover the document. Ex.P.2(e) to 2(h) are the speed post envelopes. The recitals of the said envelope discloses that Ex.P.2 letter was communicated to the defendant nos.1 & 2 both by e-mail as well as by speed post. Ex.P.3 is the legal notice issued by the plaintiff to the defendants by registered post acknowledgement due. Said legal notice is also served to the defendants. That is clear from Ex.P.8 to P.11. The version of PW.1 further discloses that even in pursuance of Ex.P.3, the defendants failed to visit the office of the plaintiff and failed to receive the contents of Ex.P.1. The learned Counsel appearing for the plaintiff drew the attention of this court to order 35 of CPC and also relied on a decision reported in 1919(21) Bombay Law reporter 948 wherein at para-6 the Hon'ble High Court of Bombay has observed as under:
"6.Mr. Setalvad has not referred me to any of our Bombay High Court Rules dealing specifically with interpleader. As far as my recollection goes, I do not think we have any Rules modifying what is to be found in the Civil Procedure Code, One knows that 10 O.S.No.4641/2015 interpleader is rather a technical subject, and that it is not always open to the parties to obtain relief by way of interpleader. I have not had the benefit of any argument on the point, but, as far as I can see, the plaintiffs have, according to the practice here, properly taken their proceedings by plaint. Proceedings by Originating Summons do not appear to be open to them, as would be the case in England. Therefore, as far as I can see, this is a case where within the meaning of Section 88, two or more persons claim adversely to one another the same debt from the plaintiffs."
12. In para-7,10 & 13 the Hon'ble High Court of Bombay, has further observed as under:
"7. I think, therefore, the suit has been properly brought. The evidence in support of it is in order, and therefore, as far as the plaintiffs are concerned, I think they have done all they can.
10. That is all very well, when there are two claimants before the Court, but in fact I have got neither the one nor the other. I cannot possibly try an action where I have got neither the plaintiff nor the defendant, nor, on the other hand, can I adopt the course of merely dismissing the claim of one or dismissing the claim of the other. There is money in the hands of the plaintiffs which admittedly does not belong to them. Therefore I must make some order which will put matters in train for the due disposition of this sum and for its custody meanwhile, and which will at the same time give a complete discharge to the present plaintiffs.11 O.S.No.4641/2015
. 13.On the whole I think that the proper course will be to follow strictly the first part of Rule 4(1) of Order XXXV and to declare that the plaintiffs are discharged from all liability to the defendants in respect of the money claimed, award them their costs and dismiss them from the suit, and treat this as the first hearing."
In the light of the aforesaid observation of the Hon'ble Bombay High Court, in the instant case, the plaintiff has made all efforts to secure the presence of defendant nos.1 & 2. He requested them to visit his office to enable the plaintiff to open the sealed cover i.e., Ex.P.1 in the presence of both the parties and handover the same to both the parties. But, the defendants failed to comply the said request of the plaintiff. Under these circumstances, the only course left open to this court is to proceed as per order 35 rule 4(1) of CPC. Accordingly said provision is invoked and I answer point no.1 in the affirmative.
13. Point no.2 : In the result, I proceed to pass the following:
12 O.S.No.4641/2015
ORDER It is hereby declared that the plaintiff is discharged and relieved from all the obligations and liability to the defendant in respect of the holding of the custody of Ex.P.1. The plaintiff is discharged and dismissed from the suit leaving it to the defendants to contest the case for custody of Ex.P.1 and hereby direct the defendants be required to interplead together concerning their claims to the said Ex.P.1.
The plaintiff is entitled for the cost of the suit.
Office is further directed to issue notice of this order to both the defendant nos.1 & 2(claimants).
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 25th day of October 2016).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.13 O.S.No.4641/2015
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Navkesh Batra LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Sealed envelope " P-1(a) to (x) Signatures " P-2 Office copy of e-mail " P-2(a) to (d) Four postal receipts " P-3 Office copy of e-mail " P-4 to 7 Postal receipts " p.8 Speed post Acknowledgement due card " p.9 to 11 Downloaded copies LIST OF WITNESSES EXAMINED FOR DEFENDANTs: NIL LIST OF DOCUMENTS MARKED FOR DEFENDANTS :NIL (RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.