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2008 DIGILAW 470 (MAD)

P. v. Arumugam VS Gurusamy & Others

2008-02-08

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- 1. This Revision has been directed against the order passed in Transfer O.P. No.84 of 2007 on the file of the First Additional District Court, Erode. The said Petition was filed under Section 24 of C.P.C. for transferring O.S. No.21 of 2006 pending on the file of subordinate Judge, Bhavani to the Court with O.S. No.214 of 2007. The learned First Additional District Judge, Erode, had dismissed the Petition on the ground that the evidence in O.S. No.21 of 2006 will be voluminous on the other hand, the evidence to be recorded in O.S. No.214 of 2007 will be limited. 2. Admittedly, in O.S. No.21 of 2006 and in O.S. No.214 of 2007 both the plaintiff and the first defendant are one and the same. The second defendant in O.S. No.21 of 2006 viz., Mariammal, is the mother of the first defendant Gurusamy and Marimuthu, the third defendant is the vendee under the first defendant Gurusamy. O.S. No.21 of 2006 was filed to declare that the registered sale deed dated 24. 2006 executed by the first and second defendants in favour of the third defendant in O.S. No.21 of 2006 as null and void. But in the cause of action column, it has been clearly stated that the first defendant viz., Gurusamy in O.S. No.21 of 2006 had borrowed a sum of Rs.2,00,000/- on the foot of a promissory note dated 30.6.2005 and that the first and second defendants viz., Gurusamy and his mother Mariammal had with an intention to defraud the creditors to execute the sale deed in favour of the third defendant. Only on that ground, O.S. No.21 of 2006 has been filed for declaration that the sale deed dated 24. 2006 said to have been executed by the first and second defendants in favour of the third defendant as null and void. 3. The promissory note dated 30.6.2005 for a sum of Rs.2,00,000/- is the subject matter in O.S. No.214 of 2007. The plaintiff P.V. Arumugam in O.P. No.21 of 2006 had filed O.S. No.21 of 2006 viz., Gurusamy (Defendant in O.S. No.214 of 2007) for recovery of the amount due under the promissory note dated 30.6.2005 said to have been executed by the first defendant in O.S. No.21 of 2006, who is the defendant in O.S. No.214 of 2007. The plaintiff P.V. Arumugam in O.P. No.21 of 2006 had filed O.S. No.21 of 2006 viz., Gurusamy (Defendant in O.S. No.214 of 2007) for recovery of the amount due under the promissory note dated 30.6.2005 said to have been executed by the first defendant in O.S. No.21 of 2006, who is the defendant in O.S. No.214 of 2007. So it cannot be said that the cause of action for both the Suits are different. 4. According to the plaintiff in both the Suits, the cause of action for both the Suits had arisen out of the promissory note dated 30.6.2005 said to have been executed by the first defendant-Gurusamy in favour of P.V. Arumugam, the plaintiff in both the Suits. The defendants are residing at Salem. It is admitted that Bhavani is nearer to Salem and the suit properties in O.S. No.21 of 2006 are also situate at Bhavani. So the Suit O.S. No.214 of 2007 pending on the file of the Court of Subordinate Judge, Erode is to be withdrawn to be transferred to the file of Subordinate Judge, Bhavani where O.S. No.21 of 2006 is pending, it will be in a way helpful to the defendant to contest both the Suits at one and the same place i.e., Bhavani. 5. The learned counsel appearing for the revision petitioner relying on a decision reported in State Bank of India v. Rangan Chemicals Ltd, 2007 (1) SCC 97 , would contend that when two actions arose out of the same transaction then joint trial of the cases should be ordered. The relevant observation in the said ratio decidendi of the Honourable Apex Court runs as follows: "The Court can order a joint trial if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them is in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial" But in that case, there were two Suits filed to recover money from the borrowers by State Bank of India. One Suit was pending before the Debt Recovery Tribunal and another one was pending before the Civil Court. One Suit was pending before the Debt Recovery Tribunal and another one was pending before the Civil Court. Both the Suits were ordered to be transferred to Debt Recovery Tribunal with a direction to conduct a joint trial since both the proceedings arose out of same transaction. But that is not the case herein because in O.S. No.21 of 2006, the plaintiff P.V. Arumugam had filed the Suit on behalf of all the creditors of the first defendant Gurusamy and for a declaration that the sale deed dated 24. 2006, executed by the first and second defendants in favour of the third defendant in O.S. No.214 of 2007 was filed for recovery of money under the suit promissory note dated 30.6.2005. Under such circumstances, I am of the view that simultaneous trial to be conducted before the learned Subordinate Judge, Bhavani in O.S. No.21 of 2006 and O.S. No.214 of 2007. 6. At this juncture, the learned counsel appearing for the respondents Mr. N. Manoharan would contend that he has filed a Petition under Order 7, Rule 11 of C.P.C. in I.A. No.217 of 2006 in O.S. No.21 of 2006. If it is so, after the transfer of O.S. No.214 of 2007 from the file of the Court of Subordinate Judge, Erode to his file, the learned Subordinate Judge, Bhavani shall dispose of the said I.A. No.217 of 2006 in O.S. No.21 of 2006 before recording the evidence in the Suits. 7. In fine, the Revision Petition is allowed and the order passed in Transfer O.P. No.84 of 2007 by the learned First Additional District Judge, Erode is set aside and O.S. No.214 of 2007 pending before the Court of Subordinate Judge, Erode is ordered to be withdrawn and transferred to be file of Subordinate Judge, Bhavani wherein O.S. No.21 of 2006 is pending. Both O.S. No.21 of 2006 and O.S. No.214 of 2007 are to be tried simultaneously and separate judgment are to be given after recording the evidence separately in both the Suits and shall dispose of both the Suits within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected M.P. Nos.1 and 2 are closed.