The High Court allowed a suit for recovery of mesne profits as future damages granted in a prior decree that was stayed during an appeal. The court held the suit was filed within limitation and maintained against the defendant.
Plaintiff entitled to decree for Rs. 85,80,566.40 plus interest at 12% per annum from date of plaint.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 01 – 12 – 2014 Judgment Delivered on : 15 – 12 – 2014 Coram:
THE HON'BLE MRS. JUSTICE PUSHPA SATHYANARAYANA
C. S. No. 597 of 2009
Spencer & Company Ltd. Rep. By its Power of Attorney Agent M/s Mangal Tirth Estate Ltd. ... Plaintiff -VsHindustan Petroleum Corporation Ltd. By its C.R.M. Mr. C. Ramakrishnan ... Defendant Plaint filed under Order IV Rule 1 of O.S. Rules and Order VII Rule 1 of C.P.C. For Plaintiff : Mr. R. Murari, SC for Mr. M.S. Sampath For Defendant : Mr. O.R. Santhanakrishnan J U D G M E N T
Suit for recovery of a sum of Rs. 85,80,566.40ps. with
interest on Rs.84,53,760/- @ 18% per annum and for costs.
(a) The suit property was originally let out by the plaintiff to one Caltex India Limited, which was, later on, taken over by the Government of India.Subsequently, the
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defendant Company stood substituted in the place of Caltex
Oil Refining India Ltd. and renewed the lease for the period from 01.01.1975 to 31.12.1979 and thereafter, the lease was not renewed. It is stated that as the defendant
did not vacate even after the expiry of lease, the plaintiff filed C.S. No. 26 of 1981 on the file of this Court for the relief of recovery of possession and for damages for use and occupation of the property. The plaintiff had claimed Rs.1,05,000/- as damages for the period from 01.6.1980 till 30.9.1980 besides demanding a sum of Rs.26,250/- per month as future damages till the date of delivery of possession by the defendant. The suit C.S. No. 26 of 1981 was transferred to the City Civil Court
and re-numbered as O.S. No. 14544 of 1996.
(b) In the said suit, the defendant filed an
application in I.A. No. 16309 of 1997 under Section 9 of
the City Tenants Protection Act and the said application
was dismissed by the trial Court on 21.9.2000 as against which C.M.A. No. 188 of 2000 was filed and the same was also dismissed on 21.12.2000. C.R.P. preferred before this Court against the order in C.M.A. also ended against the
defendant. After the said proceedings were over, the suit was taken up for trial and decree in favour of the plaintiff was passed on 16.3.2005 by the learned XII
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Assistant Judge, City Civil Court, directing the defendant to hand over possession on or before 16.6.2005 and also to pay a sum of Rs.1,05,000/- as damages. There was also a decree for payment of Rs.26,250/- per month towards future damages till the handing over of the possession.
(c) Aggrieved by the said judgment, the defendant had filed A.S. No. 550 of 2005 before the IV Additional Judge, City Civil Court, Chennai. Pending appeal, the defendant handed over possession to the plaintiff on 02.4.2007 and hence, the appeal was withdrawn on 11.4.2007. Till the date of withdrawal of the appeal, the defendant had not paid the decree amount and, therefore, the plaintiff issued a legal notice on 12.10.2007. The plaintiff quantified the amount to Rs.84,53,760/- which is the suit claim and also claimed an interest of 18% per annum.
the written statement contending inter alia that the suit
itself was not maintainable and it was barred by limitation.According to the defendant, the plaintiff cannot claim future damages at the rate of Rs.26,250/- per month from the date of plaint till the date of handing over
possession. It was contended by the defendant that there
was no assessment done regarding the future damages in C.S. No. 26 of 1981. Hence, the plaintiff cannot claim such
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amount and in any event, the suit is barred by limitation.
framed the following issues for trial:-
(i) Is the suit claim barred under Order 2
Rule 2 CPC?
(ii) Is the suit claim barred by limitation?
(iii)Is the suit claim for damages barred by
Res Judicata ?
(iv) Is to what relief or relief if any, is
the plaintiff entitled?
5. One M. Balasubramaniam, Managing Director of M/s
Mangal Tirth Estate Limited, the power agent of the
plaintiff M/s Spencer and Co. Ltd. was examined as P.W.1
and produced Exs. P.1 to P.10, the details of which are as
follows:-
Sl Exhibits Description of Document Date
.
No
.
1. Ex. P.1 Xerox copy of the plaint in O.S.
No. 14544 of 1996
2. Ex. P.2 Xerox copy of the order in C.R.P. 15.10.2003
No. 4005 of 2001
3. Ex. P.3 Xerox copy of the Judgment in 16.03.2005
O.S. No. 14544 of 1996
4. Ex. P.4 Xerox copy of the Decree in O.S. 16.03.2005
No. 14544 of 1996
5. Ex. P.5 Xerox copy of the grounds of
appeal in A.S. No. 550 of 2005
5
Sl Exhibits Description of Document Date
.
No
.
6. Ex. P.6 Xerox copy of the handing over of
property report
7. Ex. P.7 Xerox copy of the letter to the
defendant dated 02.04.2007 for
having taken possession of
property
8. Ex. P.8 Copy of the legal notice 12.10.2007
9. Ex. P.9 Copy of the reply notice sent by 02.11.2007
the defendant
10 Ex. P.10 Authorisation of copy of the 13.03.2008
. Board resolution
6.On the side of the defendant, though no witness was
examined, Exs. D.1 and D.2 were marked and the details of
the same are tabled as under:-
Sl. Exhibits Description of Document Date
No.
1. Ex. D.1 Xerox copy of the receipt No. 577 16.03.2006
(series) issued by office of the City
Civil Court, Chennai
2. Ex. D.2 Xerox copy of the Decree in A.S. 11.04.2007
No. 550 of 2005 on the file of
the IV Additional Judge, City
Civil Court, Chennai
7. Heard Mr. R. Murari, learned Senior Counsel
appearing for the plaintiff and Mr. O.R. Santhanakrishnan,
learned counsel for the defendant and perused the records.
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plaint till the date of realisation based on the strength of the decree passed in O.S. No. 14544 of 1996 on the file of the City Civil Court, Chennai.
9.For better appreciation of the case, it would be relevant to refer to the details of the earlier suit. The earlier suit O.S. No. 14544 of 2006 was filed by the present plaintiff for recovery of possession and damages for use and occupation from 01.6.1980 to 30.9.1980 and for future damages at Rs.26,250/- per month till the date of delivery of possession. The said suit was decreed on 16.3.2005 and the terms of the decree read as follows:“1)“brd;id. E';fk;ghf;fk; fpuhkk; Mu;/v!;/vz;/ 27-2 y; 8730 rJu mofs; bfhz;;l jhth brhj;jpid gpujpthjp fhyp bra;J. fhyp Rthj Pdj;ij 16?6?2005 f;Fs; xg;gilf;f ntz;Lk;/
bfhLf;fntz;Lk;/
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Admittedly, an appeal was filed by the defendant in A.S. No. 550 of 2005 on the file of the IV Additional Judge, City Civil Court, Chennai along with C.M.P. No. 1676 of 2005 for stay of the operation of the judgment and decree dated 16.3.2005. Interim stay was granted on condition that the defendant pays a sum of Rs. 1,05,000/- as per Clause 2
of the said decree, to the credit of the suit. It is also admitted that the defendant had complied with the conditional order and the stay was made absolute on 20.3.2006. Clause 3 of the decree in O.S. No. 14544 of
1996, specifically directed the plaintiff to take separate proceedings for recovery of the future damages at the rate of Rs. 26,250/- per month. As stated above, the decree was stayed by the First Appellate Court. Hence, the plaintiff
could not take the separate proceedings as indicated in clause 3 of the earlier decree.
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on 02.4.2007 and handed over possession to the defendant.
After vacating the premises, the defendant had admittedly withdrawn the appeal on 11.4.2007. As such, the plaintiff herein gets the right to proceed further based on the decree granted earlier only from the date of disposal of the appeal A.S. No. 550 of 2005. After the disposal, the present suit has been filed by the plaintiff for the suit reliefs on 17.3.2008 claiming Rs. 26,250/- per month from 01.10.1980 to 02.4.2007. Since the plaintiff had claimed
damages upto 30.9.1980 in the earlier suit, the claim has been made from 01.10.1980 in the present suit.
the plaintiff contended that in view of the operation of the stay in the First Appeal, the plaintiff could not initiate action for recovery of the money immediately and hence, the present suit has been filed from the date of disposal of the First Appeal and within the period of limitation.
alleged damages from the defendant only for the period of three years prior to the date of filing of the suit. The learned counsel also placed reliance on the Full Bench
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decision of this court in Gnanaprakasa Mudaliar and two
others vs. B. Anandathandavan and others [1999 (II) CTC
6] . The said case will have no applicability to the present set of facts because in the above case, the application for mesne profits was filed after six years from the date of delivery of possession pursuant to the final decree whereas
in the case on hand, this is a second suit filed by the
plaintiff for recovery of amount for use and occupation.
the same is usefully re-produced below:-
relief of delivery of possession and for damage for use and
occupation from 01.6.1980 to 30.9.1980 amounting to Rs.1,05,000/- for which alone the Court fees was paid.
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Insofar as the other relief of future damages is concerned,
which was claim of Rs.26,250/- per month from the date of plaint till the date of possession, the Court had passed a decree directing the plaintiff to institute a separate proceedings. Insofar as the said decree is concerned, it was objected to and pointed out by the learned counsel for
the defendant that the Court fees was also not paid by the plaintiff. As the said relief granted in Clause 3 of the earlier decree relates to the future damages for which the plaintiff was directed to take proceedings, Court fees could not have been paid. The plaintiff also has taken out separate proceedings, viz., the present suit for the said relief granted. Therefore, the objection of the defendant in that regard cannot be sustained.
earlier, the cause of action for the present suit arose
only on the date when the appeal in A.S. No. 550 of 2005
was disposed of, ie., on 11.4.2007. The suit was filed on
17.3.2008 which is well within the period of limitation. Though the plaintiff had sought for the prayer of recovery
of damages in the earlier suit from the date of plaint till the date of recovery of possession, which was directed to be recovered by instituting a separate proceedings, it is
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seen that the decree with regard to the said relief was stayed by the Appellate Court till 11.4.2007 and hence, the plaintiff could not have taken any action till then, ie., the date of dismissal of the Appeal.
to the quantum of damages arrived at in the earlier suit and allowed it to become final by withdrawing the appeal. Therefore, the claim of the plaintiff for damages from the
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date of earlier plaint till handing over possession is correct and the suit is within the time. As such, this Court is of the considered opinion that the plaintiff is entitled to the decree as prayed for.
case, the issues regarding the applicability of Order 2
Rule 2 CPC and Section 11 CPC do not arise for consideration.
In the result, the plaintiff is entitled to the decree
for a sum of Rs. 85,80,566.40ps. Since the interest of 18% as claimed by the plaintiff is on a higher side, this Court fixes the same at 12% from the date of plaint till the date of realisation. However, in the circumstances of the case, there shall be no order as to costs.
List of Witnesses Examined on the side of the Plaintiff:-
P.W.1 – Mr. M. Balasubramaniam
List of Exhibits Marked on the side of the Plaintiff:-
| Sl. No. |
Exhibit s |
Description of Document | Date |
|---|---|---|---|
| 1. | Ex. P.1 | Xerox copy of the plaint in O.S. No. 14544 of 1996 |
|
| 2. | Ex. P.2 | Xerox copy of the order in C.R.P. No. 4005 of 2001 |
15.10.2003 |
| 3. | Ex. P.3 | Xerox copy of the Judgment in O.S. No. 14544 of 1996 |
16.03.2005 |
| 4. | Ex. P.4 | Xerox copy of the Decree in O.S. No. 14544 of 1996 |
16.03.2005 |
| 5. | Ex. P.5 | Xerox copy of the grounds of appeal in A.S. No. 550 of 2005 |
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| Sl. | Exhibit Description of Document Date |
|---|---|
| No. | s |
| 6. | Ex. P.6 Xerox copy of the handing over of property report |
| 7. | Ex. P.7 Xerox copy of the letter to the defendant dated 02.04.2007 for having taken possession of property |
| 8. | Ex. P.8 Copy of the legal notice 12.10.2007 |
| 9. | Ex. P.9 Copy of the reply notice sent by the defendant 02.11.2007 |
| 10. List Nil |
Ex. P.10 Authorisation of copy of the Board resolution 13.03.2008 of Witnesses Examined on the side of the defendant:- |
| List | of Exhibits Marked on the side of the defendant:- |
| Sl. No. |
Exhibit s Description of Document Date |
| 1. | Ex. D.1 (series ) Xerox copy of the receipt No. 577 issued by office of the City Civil Court, Chennai 16.03.2006 |
| 2. | Ex. D.2 Xerox copy of the Decree in A.S. No. 550 of 2005 on the file of the IV Additional Judge, City Civil Court, Chennai 11.04.2007 |
| sd/.P.S.N.J 15.12.2014 |
|
| //C Date |
ertified to be a true copy// d this the day of 2015. |
| R.s/ | 27.11.2015 COURT OFFICER |
| From | 25.09.2008 the Registry is issuing certified copies of |
| the | Order/Judgment Decree in this format. |
2 issues framed by the court
Whether the suit claim for recovery of future damages is barred by the limitation period under the three-year rule?
Whether the suit claim is barred under Order 2 Rule 2 CPC or the doctrine of res judicata?
Colour shows how this judgement treated each authority
Gnanaprakasa Mudaliar and two others vs. B. Anandathandavan and others [1999 (II) CTC 6]Distinguished¶67
Pushpa Sathyana Rana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
