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2002 DIGILAW 737 (MAD)

Anthony Raj & Another v. Josephine Sanjeevi

2002-08-02

M.CHOCKALINGAM

body2002
Judgment :- As per the orders of this court in the instant application, Mr.K.R.Ramaswamy and Mr.C.R.Narayana Rao, appointed as valuers, have inspected the property and filed their reports dated 28.8.78 and 29.8.78 respectively. Both sides have filed their objections to the said reports. The plaintiffs have now sought for a direction to the defendant to permit the plaintiffs and their Architect Mr.K.N.Srinivasan to inspect the Pilot Theatre in accordance with the directions contained in the order dated 8.2.79 passed in Application No.3671/79. 2. The rival submissions made by the respective counsel were heard, and the available records were perused. 3. As could be well seen from the plaint, the plaintiffs have filed a suit for declaration that the plaintiffs are the owners of the superstructure viz. the Cinema Theatre "Pilot Theatre" and its annexures and cinema equipments and other installations, etc. It is pertinent to note that even in the relief clause in the plaint, the plaintiffs have asked for the appointment of a Commissioner to determine the value of the properties mentioned in Schedule 'B' and 'C' annexed to the plaint in terms of the lease deed dated 20.10.1967. The said suit was contested by the defendants by a detailed written statement. Both the parties have entered into a compromise, and the said compromise was filed in the court. Pursuant to the said compromise, a compromise decree was passed by this Court on 21.12.1977. In their memo of compromise filed by the parties, they have agreed that a preliminary decree was to be passed as per the terms set out in the compromise memo. Accordingly, in terms of the memo of compromise, this court passed a compromise decree on 21.12.1977. It would be more appropriate to reproduce Clauses 1 to 5 in the decree that was passed by this court. Accordingly, in terms of the memo of compromise, this court passed a compromise decree on 21.12.1977. It would be more appropriate to reproduce Clauses 1 to 5 in the decree that was passed by this court. Clauses 1 to 5 reads: "(1) That the defendant herein shall convey the superstructure, equipment, air conditioning plant, air conditioners, generators, electrical motors, electrical installations, sanitary fittings, projectors, fans, lights, furniture, etc., provided by her at the Pilot Theatre, Madras-14 to the plaintiffs on payment of the market value of the superstructure with the installed equipments, installations, furniture, etc; (2) That the market value shall be computed for the superstructure with the installed machinery, equipments, furniture and fittings, electrical installations, projectors, etc., without taking into account the commercial value of the business of the Pilot Theatre run there and without taking the value of the land but taking into account the normal life of the installations, machineries, equipments, etc., listed in clause 1 supra; (3) That the life of the assets shall be computed from the 15th November 1968 the date on which the Pilot Theatre, Madras-14 commenced its commercial exhibition of motion pictures and that on payment of the market value the defendant shall forthwith deliver possession of all the items specified in clause one supra, except the Cinerama equipments together with its screen, films, scaffold, lenses, accessories, etc., more fully described in the schedule 'B' hereunder which shall be removed by the defendant before handing over possession. (4) That the market value referred to in clause one supra shall be fixed on the above basis as per clause 2 and 3 by an expert valuer or valuers and a Commissioner be appointed for the aforesaid purpose; (5) That the defendant shall deliver possession of the properties mentioned in clause 1 supra as per clauses 2 and 3 supra to the plaintiffs without any encumbrances whatsoever created by the defendant and/or by her husband and deliver to the plaintiff all the original documents of title relating thereto." 4. Pursuant to the compromise decree, stated supra, the plaintiffs have made an application in Application No.219 of 1978 seeking appointment of expert valuers as commissioners with necessary directions to compute the market value of the superstructure with the installed equipments, installations, furnitures, etc., in accordance with the preliminary decree dated 21.12.1977 passed in the suit and to submit the report and to direct the defendant to make necessary deposits and pay all the arrears of taxes and surrender sealed tickets to the Deputy Commercial Tax Officer, Royapettah Assessment Circle, Madras 5, and to make necessary deposits with the Electricity Department to enable the plaintiffs to draw the deposits made by them, and to deposit the credit of the suit a sum of Rs.49,000/- being the balance payable by her as per the undertaking towards the arrears of rent due to the plaintiffs. In the course of the affidavit filed in support of the said application, it has been categorically stated that the expert valuers were to be appointed as Commissioners for the purpose of fixing the market value of the property referred to in the preliminary decree. After hearing both sides, this court has also appointed two Valuation Commissioners by name K.R.Ramaswamy and C.R.Narayana Rao to determine the market value of the suit property, who after making inspections and collecting the necessary data filed their independent valuation reports dated 28.8.78 and 29.8.78 respectively. In his report dated 28.8.78, Mr.K.R.Ramaswamy has estimated the market value of the buildings and equipments at Rs.25,67,000/-, while Mr.C.R.Narayana Rao in his report dated 29.8.78 has given the estimation at Rs.25,75,000/-. The defendant filed her common objections to the said reports of valuation of both the Commissioners. The defendant interalia has raised her objections as to the rate of depreciation adopted in the valuation reports of the Commissioners and has requested the court to alter the value of the property by reducing the depreciation allowed therein by at least fifty per cent and to fix the value of the property. Subsequently, the plaintiffs have filed an affidavit stating that the Commissioners have inspected the property without notice to the plaintiffs, and hence, suitable directions were to be given to the defendant directing her to permit the inspection of the property to be done by an Architect named Mr.K.N.Srinivasan. 5. Subsequently, the plaintiffs have filed an affidavit stating that the Commissioners have inspected the property without notice to the plaintiffs, and hence, suitable directions were to be given to the defendant directing her to permit the inspection of the property to be done by an Architect named Mr.K.N.Srinivasan. 5. From all the above it would be clear that pursuant to the compromise decree, the plaintiffs have filed an application in Application No.219/78 for appointment of expert valuers as commissioners, and after hearing both sides, this court has appointed Mr.K.R.Ramaswamy and C.R.Narayana Rao, who filed their respective reports, and objections were raised by both sides. It is not in dispute that subsequent to the filing of the above objections in respect of the reports of the Commissioners, neither the parties were ever heard by the court, nor orders were passed thereon. Under such circumstances, it would be quite evident that no final orders have been passed by this court, after hearing both sides on the valuation reports filed by the Commissioners. The main contention raised by the defendant's side is that it was a suit for declaration; that a decree was passed on 21.12.77, by which the suit was finally disposed of; that at this point of time after a lapse of 25 years, it could not be enforced, and it is actually barred by time. The said contention is stoutly opposed by the plaintiffs' side stating that what was passed by accepting the compromise memo was only a preliminary decree; that in view of the same, the application for appointment of expert valuers was filed in Application No.219/78; that the said application is yet to be disposed of, and hence, the contention of the defendant's side that the decree is barred by time is not sustainable in law, and thus, further orders have got to be passed in order to give final disposal to the suit. 6. After careful consideration of the rival submissions and in view of the legal position the court is of the considered view that the contentions put forth by the defendant's side cannot be countenanced. 7. 6. After careful consideration of the rival submissions and in view of the legal position the court is of the considered view that the contentions put forth by the defendant's side cannot be countenanced. 7. "Decree" is defined under S.2(2) of Code of Civil Procedure as follows: "S.2(2): "decree" means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation:- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." In the instant case, the plaintiffs though asked for a relief of declaration in prayer column 'b', have specifically asked in column 'a' of paragraph 25 in the plaint dealing with the reliefs asked for, as follows: "a) To appoint a Commissioner to determine the value of the properties mentioned in Schedule B and C hereunder, in terms of the lease deed dated 20.10.1967." Though the suit was contested, the parties entered into a compromise and a joint memo of compromise was filed, wherein the parties have prayed for passing of a preliminary decree, as per the terms of the compromise, and accordingly, a decree has been passed. While passing the decree, as per the compromise memo, it has been stated in clear terms that the defendant should convey the superstructure, equipments, ait conditional plant, etc., to the plaintiffs on payment of the market value of the superstructure with installed equipments, etc.; and that the market value shall be fixed by an expert valuer or valuers and a Commissioner appointed for that purpose; and that the defendant should deliver possession of the properties to the plaintiff without encumbrance and all the original documents of title relating thereto. A very reading of the compromise decree would clearly reveal that the decree that was sought for and passed pursuant thereto was only a preliminary decree, since further proceedings were to be taken before the suit can be completely disposed of. It cannot be stated final, because the said adjudication did not completely dispose of the suit and conclusively determine the rights of the parties with regard to the matters in controversy. 8. Needless to say that the compromise decree stated supra is not capable of execution immediately, but depends on the performance of the mutual obligations. It is pertinent to note that no time is specified for such performance. Hence, the contention of the defendant's side that the said decree cannot now be enforced, since it is barred by time cannot be sustained. The basic test that has got to be applied is whether there is a right available to the decree holder to apply for execution immediately, or it depends upon the fulfilment of some condition precedent, and whether it depends on the compliance of the obligations by the parties within a specified time. When no such period is specified, it has to be deemed that the decree is to remain in abeyance, and the limitation would begin to run only from the date when such conditions are put to compliance. In the instant case, the court is of the considered view that the purpose of the suit and the compromise memo entered into between the parties are still pending. 9. Taking into consideration that the instant suit was filed by the plaintiffs in the year 1975 and a compromise decree was passed on 21.12.1977, the court is of the view that it would not be worthwhile after a lapse of nearly 25 years, to appoint a valuer again with a direction to inspect and value the property and file a report. At this juncture, the learned counsel for the plaintiffs would submit that the defendant has been enjoying the plaintiffs' property for all along these years and has made lot of profits out of it. Contrary to the same, the learned counsel for the defendant would submit that the defendant has spent lot of moneys then and there for the purposes of periodical renovation and maintenance of the superstructure; and that the same has got to be taken into consideration. Contrary to the same, the learned counsel for the defendant would submit that the defendant has spent lot of moneys then and there for the purposes of periodical renovation and maintenance of the superstructure; and that the same has got to be taken into consideration. As per the valuation reports filed by both the valuers appointed by the court, the market value of the buildings and equipments was estimated at Rs.25,67,000/- by Mr.K.R.Ramaswamy and Rs.25,75,000/- by Mr.C.R.Narayana Rao. Hence, the court is of the view that the value of the superstructure on that date of the reports could be taken at Rs.25,00,000/-, and awarding reasonable interest thereon would meet the ends of justice. It is pertinent to note at this juncture that prolonging the litigation and causing the delay have got to be attributed to both sides equally, since the compromise decree would speak of mutual obligations to be performed by both sides. Hence, under the circumstances, fixing the rate of interest at 9% per annum on the said value of Rs.25,00,000/- would be just and reasonable. The court is of the view that in order to avoid the avoidable delay and the multiplicity of proceedings, the suit has got to be given a final disposal. Therefore, this application has to be ordered accordingly. 10. In the result, this application is ordered, directing the plaintiffs to pay to the defendant directly or deposit into the Court a sum of Rs.25,00,000/- with subsequent interest at the rate of 9% per annum from the date of the compromise decree viz. 21.12.1977 till the date of realisation within six months herefrom. In other respects, the terms of the decree of compromise entered into between the parties stated supra will hold good. Parties shall bear their own costs.