Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 3412 (MAD)

J. M. Samy v. B. Varadan (Died)

2007-10-29

G.RAJASURIA

body2007
Judgment :- 1. This appeal is focussed as against the judgment and decree dated 05.12.1990 made in O.S.No.351 of 1988 on the file of the II Additional Subordinate Judge, Madurai. 2. Heard the learned counsel for the petitioner. Despite printing the name of the respondents there is no representation for the respondents either in person or through their counsel. 3. This appeal is focussed as against the Judgment and Decree dated 05.12.1990 in dismissing the original suit. The nitty gritty, the gist and kernel of the case as stood exposited from the records could be portrayed thus: The parties herein are referred to according to their litigation status before the trial Court. The plaintiff/appellant is a registered partnership firm, which took on lease the premises belonging to the defendant for a monthly rent. There were several lease agreements between them which contained so many clauses concerning loan transactions, relating to such loans towards interest a sum of Rs.200/- p.m. had to be deducted from out of the total monthly rent of Rs.600/- and only the remaining Rs.400/- p.m. was payable. While so when such arrangement was going on smoothly, the defendant turned turtle and had a volte face and started disturbing the plaintiff. Maliciously the defendant initiated R.C.O.P. proceedings, in which eviction was ordered on the ground of wilful default in payment of rent. It so happened that there was a delay in filing revision before the High Court as against the order which emerged in the rent control proceedings, but the High Court dismissed it. As against which S.L.P. was filed. At the time of admission the Honourable Apex Court ordered a sum of Rs.25,000/- (Rupees Twenty five Thousand only) towards arrears of rent to be deposited by the plaintiff in the Honble Supreme Court; in compliance with it the plaintiff deposited the said sum of Rs.25,000/-. However, the Honourable Apex Court subsequently dismissed the S.L.P. No.7506 of 1984. Thereupon, the defendant filed an application before the Honble Apex Court and withdrew the said sum of Rs.25,000/-deposited by the plaintiff, even though the defendant was bound to pay a sum of Rs.200/-p.m. as interest towards the loans obtained by the defendant from the plaintiff. Hence, the suit was filed. 4. Thereupon, the defendant filed an application before the Honble Apex Court and withdrew the said sum of Rs.25,000/-deposited by the plaintiff, even though the defendant was bound to pay a sum of Rs.200/-p.m. as interest towards the loans obtained by the defendant from the plaintiff. Hence, the suit was filed. 4. Per contra, challenging and impugning the allegations/averments in the plaint, the defendant filed the written statement to the effect that he was entitled to the monthly rent of Rs.600/- (Rupees Six Hundred only) and accordingly he filed application before the Supreme Court Registry and withdrew the said sum of Rs.25,000/-, which was deposited by the plaintiff at the time of getting admitted the S.L.P. 5. Before the trial Court the following issues were framed: 1. Whether the plaintiff is entitle receive a sum of Rs.38,500/- with interest thereon? 2. To what relief? 6. During trial on the side of the plaintiff P.W.1 was examined and Ex.A1 to A23 were marked and on the side of the defendant, D.W.1 was examined and Ex.B1 to B24 were marked. The trial Court ultimately dismissed the suit. 7. Being aggrieved by and dissatisfied with the judgment of the trial Court, the appellant preferred this appeal on the main ground that the said sum of Rs.25,000/-was deposited in order to get the S.L.P. admitted; in fact the said sum represents only the interest amount due by the defendant in favour of the plaintiff for the loans borrowed and the outstanding payable by the defendant in favour of the plaintiff; the trial court failed to consider Ex.A.1 and Ex.A.15 in proper perspective and in fact in Ex.A.1 there was admission to the effect that the pronote for Rs.34,000/- was executed by the defendant in favour of the plaintiff in addition to borrowal of an advance of Rs.13,200/- and the trial court was wrong in summarily rejecting Ex.A.5 to A.7, over and above not considering Ex.B.9 to Ex.B.17. 8. The point for determination is whether the trial Court was justified in dismissing the suit on the ground that plaintiff failed to object before the Apex Court at the time of defendant withdrawing the sum of Rs.25,000/- from the Court Registry? 9. 8. The point for determination is whether the trial Court was justified in dismissing the suit on the ground that plaintiff failed to object before the Apex Court at the time of defendant withdrawing the sum of Rs.25,000/- from the Court Registry? 9. The gist and kernel of the contention of the plaintiff is that the rent controller and the appellate Court miserably failed to consider that there was no default in payment of the rent at all as there was adjustment of payment of interest towards part of the rent, and the remaining rent was paid. 10. I am of the considered opinion that the suit itself is a misconceived one. The method and manner in choosing the remedy in the plaint, was not in accordance with law. The purpose of the suit itself is to recover a sum of Rs.25,000/- with 18% p.a. interest from the date of the deposit of the said amount before the Honourable Apex Court till recovery. The suit itself was not based on the loan transaction and the amounts due. Rightly or wrongly the competent authority decided while ordering eviction that there were rental dues and accordingly there were defaults in payment of rents and that had been virtually confirmed even by the Apex Court. Hence, it wouldnt lie in the mouth of the plaintiff to contend that such findings were wrong and it should be taken only as adjustment towards the payment of interest for the loan. Precisely the present suit is to recover the sum of Rs.25,000/-which was withdrawn by the defendant from the Supreme Courts Registry. Undisputably and indubitably the facts remain that in the petition filed by the defendant for withdrawal of the said sum of Rs.25,000/- from the Supreme Courts Registry, the plaintiff was given with notice, but at the time before Honourable Apex Court he did not raise objection for releasing in favour of the defendant the said sum of Rs.25,000/- which the plaintiff deposited. Hence, the trial Court was justified in para 17 of its judgment in giving a finding to the effect that the plaintiff was not entitled to file a separate suit for recovery of the said sum. 11. Hence, the trial Court was justified in para 17 of its judgment in giving a finding to the effect that the plaintiff was not entitled to file a separate suit for recovery of the said sum. 11. The learned counsel for the petitioner would try to argue that the withdrawal of the said sum of Rs.25,000/- from the Supreme Court will not be a bar for him to file a suit to recover the said amount, by placing before the Court the realities. At the risk of repetition without being tautologous I would like to highlight that a suit based on the loan transaction and for recovery of the dues, is entirely different from simply filing a suit for recovery of Rs.25,000/-with interest which was withdrawn from the Supreme Courts Registry. Had really the defendant thought that he was intending to file the suit he should have at that time itself got permission from the Honble Apex Court itself and thereafter without prejudice to plaintiffs right to establish his entitlement before the competent civil Court had the amount been released by the Supreme Court, then the matter would have been entirely different. Hence, in these circumstances, this Court finds that the documents and evidence adduced by plaintiff before the trial Court in support of the such recovery of the sum of Rs.25,000/- are totally not tenable. Hence, no interference with the trial Courts findings is warranted. 12. Accordingly, the appeal is dismissed. In the circumstance of the case there is not order as to the costs.