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2002 DIGILAW 76 (MAD)

R. Vetriselvan v. Tamil Nadu Merchantile Bank Ltd

2002-02-06

P.D.DINAKARAN, S.JAGADEESAN

body2002
Judgment : S. Jagadeesan, J. 1. Theappeals arise out of common order of the learned single Judge dated 10.1.2001 in Application Nos.855, 856, 4371 to 4373 and 4631 of 2000 inC.S.685 of 2000. 2. The appeals are taken up for final disposal jointly with the consent of the counsel appearing for the respective parties. The appellant filed the said suit C.S.685 of 2000 seeking the following reliefs: “(a) declaring that the resolution dated 27.6.2000 passed by the first defendant bank, holding that the non disclosure of interest by the plaintiff at the time when the proposals of the third defendant were discussed at the Board meeting of the first defendant Bank would be violation of the provisions in Section 299 of the Companies Act, causing automatic vacation of office of the Director of the first defendant Bank, as null and void and unenforceable, illegal, arbitrary without jurisdiction and violating of the principles of natural justice and equity, and (b) consequently for mandatory injunction directing the first defendant bank to restore the office of the Directors of the first defendant Bank to the plaintiff (c) declaring that the opinion dated 24.6.2000 and 27.6.2000 given by the second defendant to the plaintiff is malicious without any basis, arbitrary, made in violation of the principles of natural justice and equity and definitely. By way of permanent injunction restraining the first defendant Bank from interfering with functioning of the plaintiff as the Board of Director of the first defendant Bank, till the completion of his full term of office. (e) Directing the defendants 1 and 2 jointly and severally to pay the plaintiff, a sum of Rs.10,00,000 as a damage and compensation. (f) By directing the defendants 1 and 2 to pay the plaintiff the costs of the suit and (g) to grant such other relief or reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and thus render justice. 3. It is unnecessary to extract elaborately the pleadings of the parties, since the question involved for the decision of this court falls in a narrow compass. For the sake of convenience the parties are arrayed with their rank in the suit. The plaintiff was removed from the directorship of the first defendant bank by resolution dated 27.6.2000. 3. It is unnecessary to extract elaborately the pleadings of the parties, since the question involved for the decision of this court falls in a narrow compass. For the sake of convenience the parties are arrayed with their rank in the suit. The plaintiff was removed from the directorship of the first defendant bank by resolution dated 27.6.2000. The suit was laid for declaration that the said resolution is null and void and unenforceable and for consequential reliefs. Originally he filed a suit in O.S.224 of 2000 on the file of the District Munsif, Tuticorin for a declaration that he is continuing as the Director of the defendant bank till the annual general meeting of the defendant bank. In the said suit he impleaded the bank alone as defendant, which is the first defendant in the present suit. The said suit was withdrawn with liberty to file a fresh suit on the same cause of action on the ground that the plaintiff wants to implead the Company Secretary as a party in order to bring out real facts happened in the Board meeting of the first defendant bank. Having withdrawn the said suit, the plaintiff filed the present suit on 31.8.2000 on the file of this court by impleading the defendants 2 to 4. However, the plaintiff did not implead the Company Secretary as stated in his affidavit filed to withdraw the suit before the Principal District Munsif, Tuticorin. 4. In the plaint filed in the present suit, paragraph 106 deals with the cause of action. In the said paragraph, it is stated that the cause of action arose at Madras, where the Solicitors Firm having their legal profession on the date on which they gave the opinion to the first defendant. Virtually the said paragraph deals with the opinion given by the second defendant, the Solicitor. In fact the suit was laid after obtaining the leave of the court in Application No.35 58 of 2000. 5. Virtually the said paragraph deals with the opinion given by the second defendant, the Solicitor. In fact the suit was laid after obtaining the leave of the court in Application No.35 58 of 2000. 5. The second defendant herein filed Application Nos.4371 to 4373 of 2000 to strike out their name from the plaint; to strike out the pleadings which are unnecessary, scandalous, frivolous and vexatious which may tend to prejudice the image and reputation of the second defendant as contained in paragraphs 72, 77, 78, 88, 89, 90, 93, 94, 100 and 101 of the plaint; and to reject the plaint as there is no cause of action arising at Madras for this court to try the suit respectively. 6. Application No.4631 of 2000 was filed by the first defendant bank to revoke the leave granted by this court by order dated 7.9.20 00 in Application No.3558 of 2000. 7. Application Nos.855 and 856 of 2000 were filed by the plaintiff seeking temporary injunction restraining the first defendant bank from in any way filling up the post of Director in the first defendant bank. 8. The learned single Judge by order in appeal allowed the applications filed by the first and second defendants and dismissed the injunction applications filed by the plaintiff finding that there is no cause of action for the plaintiff to maintain the suit and the second defendant cannot be sued on the basis of the opinion given by them. Aggrieved by the same, the present appeal has been filed by the plaintiff. 9. Mr.S. Subbiah, the learned counsel for the appellant vehemently contended that it is the duty of the court to consider the averments made in the plaint as a whole for the grant of leave for the plaintiff to maintain the suit. In this case, the first defendant bank passed a resolution removing the plaintiff from the directorship of the bank on the basis of the opinion given by the second defendant. The first relief sought for in the plaint relates to the resolution of the first defendant bank. The third relief relates to the opinion of the second defendant. When once the second defendant is having the office within the jurisdiction of this court, the suit is maintainable and the leave granted cannot be revoked. The first relief sought for in the plaint relates to the resolution of the first defendant bank. The third relief relates to the opinion of the second defendant. When once the second defendant is having the office within the jurisdiction of this court, the suit is maintainable and the leave granted cannot be revoked. Further the averments made against the second defendant is with regard to the opinion given by them to the first defendant. Hence it is open to the plaintiff to challenge the value of the opinion given by the second defendant as the first defendant had acted upon the same which ultimately prejudice the right of the plaintiff from continuing as the Director of the first defendant. If the plaintiff establishes the opinion given by the second defendant is illegal, it is open to the plaintiff to claim damages on the principle that they mislead the first defendant, thereby causing damage to the reputation of the plaintiff. Hence it is a matter for evidence and at this stage it is not open to the court to consider the merits or demerits of such averments to non suit the plaintiff. He also relied upon some of the judgments of the Apex Court as well as this court to contend that the plaint as a whole to be looked into to consider the question of the maintainability of the suit. Since there is no dispute with regard to that proposition, we are not referring those judgments to discuss the said principle. 10. Mr.R. Krishnamoorthy, the learned senior counsel appearing on behalf of the first defendant contended that the plaintiff filed the suit O.S.224 of 2000 before the Principal District Munsif, Tuticorin against the first defendant for the identical relief. Having withdrawn the said suit with liberty to file a fresh suit on the ground that the Company Secretary was not impleaded as a party to the proceeding and since he is a necessary party, liberty may be given to implead the said Company Secretary as a party, now it is not open to the plaintiff to file the suit before this court by impleading totally different persons as defendants. Hence the suit is liable to be dismissed as barred. 11. Hence the suit is liable to be dismissed as barred. 11. Mr.G. Subramaniam, the learned senior counsel appearing on behalf of the second defendant contended that the Solicitor who offered the opinion to his client cannot be made a party to the suit by a third person. It is a matter between the Solicitor and his client. It is always open to the client to act upon such opinion or not. In case if the client acted upon the opinion and if he feels that he suffered any damage, it is for the said client to proceed against the counsel or the solicitor who gave opinion to his client. More over the opinion of the solicitor or the counsel cannot be the basis to claim any damages, since the opinion is only the view of the concerned solicitor or the counsel. Hence the suit against the second defendant cannot be maintained and the learned single Judge has rightly considered the same and allowed the applications and as such there is no illegality in the order of the learned single Judge. 12. We carefully considered the above contentions of both the counsel. The points arise for consideration in this appeal are: (1) Whether the suit is maintainable on the basis of the cause of action mentioned in the plaint against the first defendant? (2) Whether the liberty obtained by the plaintiff while withdrawing the suit O.S.224 of 2000 on the file of the District Munsif, Tuticorin would enable the plaintiff to maintain this suit? (3) To what relief the parties are entitled to? 13. The admitted facts are: Pursuant to the resolution of the first defendant bank dated 27.6.2000 the plaintiff ceased to be the director of the first defendant bank. The suit was laid challenging the said resolution. While doing so, the second defendant was impleaded as party to the proceeding on the basis that the first defendant acted upon the opinion given by the second defendant pursuant to which the resolution was passed to the effect that the plaintiff ceased to be one of the directors of the first defendant bank. The plaintiff filed O.S.224 of 2000 on the file of the District Munsif, Tuticorin against the first defendant herein alone praying for a declaration that he continues to be a director of the defendant bank till the annual general meeting of the defendant bank. The plaintiff filed O.S.224 of 2000 on the file of the District Munsif, Tuticorin against the first defendant herein alone praying for a declaration that he continues to be a director of the defendant bank till the annual general meeting of the defendant bank. The said suit was sought to be withdrawn by filing an application with liberty to file a fresh suit on the same cause of action. 14. The averments made in the said affidavit are as follows: “In the meanwhile during the pendency of suit I have got certain particulars to substantiate my case. I have to implead the Company Secretary as a party in order to bring out the real facts that happened in the Board Meetings. Because he is the person who recorded the minutes of the meetings. The records to substantiate my case is based on the recording of Board Meetings. Hence I have to implead him also party. .... Hence I am adviced to withdraw the present suit with the permission to file a fresh suit on the same cause of action.” 15. On the basis of the above averments the said suit was permitted to be withdrawn and thereafter the present suit was filed by the plaintiff before this court. 16. It may be pertinent to note that in the suit filed before the District Munsif, Tuticorin the first defendant bank alone was the defendant. In the present suit, the defendants 2 to 4 were impleaded as parties. Even though the present suit was filed for declaration to declare the resolution of the first defendant dated 27.6.2000 as null and void, the further relief is sought for on the ground that the first defendant acted upon the opinion given by the second defendant as Solicitor and since the opinion of the second defendant being not in accordance with law and mislead the first defendant and thereby the first defendant passed the impugned resolution affecting the rights of the plaintiff. Hence the plaintiff is entitled to claim damages against the first and second defendants and equally for the relief of declaration that the opinion given by the second defendant dated 24 .6.2000 and 27.6.2000 is malicious. Hence the plaintiff is entitled to claim damages against the first and second defendants and equally for the relief of declaration that the opinion given by the second defendant dated 24 .6.2000 and 27.6.2000 is malicious. From the averments made in para 1 04of the plaint it is also clear that the present suit was filed on the basis of the liberty obtained by the plaintiff to file a fresh suit on the same cause of action by withdrawing the suit O.S.224 of 200 0 on the file of the District Munsif, Tuticorin. 17. It may be pertinent to have a look at Order 23, Rule 1 C.P.C which reads as follows: Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim...... (2) .... (3) Where the court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b)that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim (4) Where the plaintiff-(a) abandons any suit or part of claim under sub rule (1) or (b) withdraws from a suit or part of a claim without the permission referred to in sub rule (3) he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5).... Sub rule (4) deals with the bar of the second suit in case if the earlier suit filed by the plaintiff was withdrawn without any liberty to file a fresh suit. Sub rule (3) deals with the jurisdiction of the court to grant permission to the plaintiff to withdraw the suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 18. Sub rule (3) deals with the jurisdiction of the court to grant permission to the plaintiff to withdraw the suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 18. Hence it is clear that the plaintiff having obtained the leave of the court at Tuticorin to withdraw the suit O.S.224 of 2000 with liberty to file a fresh suit on the same cause of action and on the same subject matter,it is not open to the plaintiff to file the present suit with totally different cause of action and different subject matter by impleading other parties. The permission granted by the court at Tuticorin is only in respect of the same subject matter. In the said suit, the subject matter is the resolution of the first defendant herein alone. It has nothing to do with the opinion given by the second defendant and the second defendant herein was not a party to the said proceeding. 19. When the appellant was permitted to file a fresh suit on the same cause of action and on the same subject matter, we have no hesitation to come to the conclusion that the present suit not being one on the same cause of action and on the same subject matter, cannot be maintained. Consequently we answer this issue against the plaintiff. 20. The next question arises for consideration is whether the plaintiff can maintain a suit against the second defendant and whether the order of the learned single Judge striking out the second defendant from the proceedings is correct? 21. The second defendant being a Solicitor they are entitled to give opinion in a given subject to their client. It is a matter between the Solicitor and their client. At times the client may seek a second opinion from any other Solicitor or Advocate. It is for the client to accept the opinion and to act or not to act on the basis of such opinion. 22. It is a matter between the Solicitor and their client. At times the client may seek a second opinion from any other Solicitor or Advocate. It is for the client to accept the opinion and to act or not to act on the basis of such opinion. 22. The plaint averments are to the effect that the opinion of the second defendant is arbitrary and malicious and the first defendant had acted upon such opinion and hence both are jointly liable to pay compensation to the plaintiff and further the relief sought for is for declaration that the opinion given by the second defendant is capricious. As already stated, it is a matter between the Solicitor and his client and if the client suffers any damage or loss due to the ill advice or bad opinion of the Solicitor, it is for such client to proceed against their Solicitor. Even there, one should see that the opinion of the Solicitor is only a view expressed by them. The opinion may be sustained in a court of law or may be negatived. In such instance, it has to be seen whether the opinion of the Solicitor is bonafide so far as his client is concerned and not in relation to any third party. If the plea of the appellant is sustained then it will amount to opening of the flood gates to file suits against the advocates appearing for the other side on the basis that the other side acted upon the advice of his counsel, which advice cannot be sustained in law. Even on principle, the plaintiff was not mislead by the solicitor of the first defendant. If the first defendant had been mislead by their Solicitor and thereby the plaintiff is affected, it is open to him to proceed against the first defendant alone. In case if the first defendant’s action is held to be illegal, then it is a matter between the first defend ant and the plaintiff. 23. So far as action against the second defendant is concerned, the plaintiff cannot be in the picture anywhere. Hence we are of the view that the learned single Judge has rightly allowed the application filed by the second defendant for striking out their name from the plaint. 24. The averments made in the plaint with regard to the second defendant also unwarranted so far as the plaintiff is concerned. Hence we are of the view that the learned single Judge has rightly allowed the application filed by the second defendant for striking out their name from the plaint. 24. The averments made in the plaint with regard to the second defendant also unwarranted so far as the plaintiff is concerned. He has no business to make such averments in respect of the opinion offered by a Solicitor to a third party. When no cause of action arises for the plaintiff to maintain the suit against the second defendant, then naturally the suit is not maintainable in this court. Consequently the leave already granted has to be revoked. The learned single Judge has rightly done the same. 25. So far as the appeal filed against the dismissal of the injunction application is concerned, there is no need to discuss the matter elaborately in view of our finding that the suit itself is not maintainable before this court. 26. For the reasons stated above, we do not find any merits in the appeals and accordingly the same are dismissed. However, there will be no order as to cost. Consequently injunction application C.M.P.21606 of 2001 is closed.