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2014 DIGILAW 1801 (MAD)

Rajkishore Bhagwatsaran v. Maxworth Home Ltd.

2014-06-30

T.MATHIVANAN

body2014
Judgment T. Mathivanan, J. 1. This memorandum of civil revision petition has been directed against the Judgment and Decree, dated 31.10.2013 and made in C.M.A. No. 3 of 2013, on the file of the learned Principal District Judge, Chengalpattu, reversing the fair and decretal orders, dated 26.02.2013 and made in I.A. No. 1019 of 2012 in O.S. No. 146 of 2012, on the file of the learned Subordinate Judge, Tambaram. 2. The revision petitioners herein are the defendants 3 to 5 in the suit in O.S. No. 146 of 2012, on the file of the learned Subordinate Judge, Tambaram, whereas the respondent herein is the plaintiff therein. 3. On perusal of the records it is revealed that the respondent/plaintiff has filed the suit in O.S. No. 146 of 2012, on the file of the learned Subordinate Judge, Tambaram, seeking the following reliefs:- (i) To direct the defendants 1 and 2 to receive the amount that is arrived and fixed by the Court, as the amount refundable to them, and execute and register a re-conveyance/sale deed in favour of the respondent/plaintiff within a specified time and in the event of any default in executing such re-conveyance deed/sale deed to direct the Registry of the Court to execute the said re-conveyance/sale deed in favour of the respondent/plaintiff on behalf of the defendants 1 and 2 in respect of the suit schedule property. (ii) To grant an order of permanent injunction restraining the defendants, their men, agents, servants, nominee or anyone claiming under/through them, in any manner alienating or encumbering the suit schedule property or from putting up any construction in the suit schedule property or from interfering in any manner with the peaceful and lawful possession of the respondent/plaintiff in so far as the suit schedule property is concerned. Totally, five defendants have been arrayed in the suit, of them the revision petitioners are the defendants 3 to 5. 4. During the pendency of the suit, the revision petitioners/defendants 3 to 5 have taken out an interlocutory application in I.A. No. 1019 of 2012, under Section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 read with Section 151 of the Code of Civil Procedure, to decide and fix proper Court fee payable by the respondent/plaintiff. This interlocutory application was strenuously contested by the respondent/plaintiff by way of filing his counter statement. 5. This interlocutory application was strenuously contested by the respondent/plaintiff by way of filing his counter statement. 5. After hearing both sides, the learned Subordinate Judge, has proceeded to allow the interlocutory application on 26.02.2013 and the plaint was directed to be returned for representation before the proper Court having pecuniary jurisdiction subject to the payment of additional Court fee (less the Court fee already paid on the plaint) and subject to the question of limitation if any. Both the parties were directed to bear their own costs. 6. Having been aggrieved by the said Order dated 26.02.2013 the respondent/plaintiff has preferred a civil miscellaneous appeal in C.M.A.No.3 of 2013, on the file of the learned Principal District Judge, Chengalpattu. 7. The said civil miscellaneous appeal was allowed, on 31.10.2013, reversing the order dated 26.02.2013, passed by the learned Subordinate Judge, Tambaram, in I.A. No. 1019 of 2012 and consequently the said interlocutory application in I.A. No. 1019 of 2012 was dismissed. 8. It may be more relevant and significant to note here that the revision petitioners/defendants 3 to 5, during the pendency of the civil miscellaneous appeal in C.M.A. No. 3 of 2013, have approached this Court by way of filing a memorandum of civil revision petition in C.R.P. (PD) No. 1757 of 2013, after invoking the provisions of Article 227 of the Constitution of India, to strike off the grounds of appeal in C.M.A. No. 3 of 2013, on the file of the learned Principal District Judge, Chengalpattu. 9. When the revision petition came up for admission before the Principal Seat, on 23.04.2014, it was dismissed by this Court on the ground that under Order XLIII Rule 1(a), an order returning the plaint is appealable and that the order of the learned Subordinate Judge presumed to be passed under Order VII Rule 10 C.P.C. and that there is no other provision available for the present parties excepting to prefer an appeal. Hence, the Order of the Trial Judge should be considered to have been passed under Order VII Rule 10 C.P.C. which is undoubtedly appealable under XLIII Rule 1(a) C.P.C. 10. Heard Mr. Muthukumarasamy, learned senior counsel, appearing for Mr. B. Chandrasekaran, learned counsel on record for the revision petitioners/defendants 3 to 5 as well as Mr. K.V. Subramanian, learned senior counsel, appearing for Mr. G. Sundaram, learned counsel on record for the respondent/plaintiff. 11. Heard Mr. Muthukumarasamy, learned senior counsel, appearing for Mr. B. Chandrasekaran, learned counsel on record for the revision petitioners/defendants 3 to 5 as well as Mr. K.V. Subramanian, learned senior counsel, appearing for Mr. G. Sundaram, learned counsel on record for the respondent/plaintiff. 11. Presumably, the prime parties to the suit viz. defendants 1 and 2 have not been impleaded in the interlocutory application in I.A. No. 1019 of 2012. 12. The conspectus of the facts: The respondent/plaintiff is a Public Limited Company incorporated under the Indian Companies Act, 1956 with the object of developing integrated township and according to them they have been in business from 1955 onwards. 13. With a view to develop an integrated township on the outskirts of the Chennai, they had acquired certain lands in approved layout bearing approval Nos. 351/73, 373/73 and 12/75, by DTCP, totally measuring an extent of more than 300 Grounds, comprised in Survey Nos. 392, 393, 394, 397, 398, 399, 499, 401/2 (part), 411, 412, 413, 414, 415, 418, 417 at No. 153, Sunnambu Kolathur/97 Madipakkam II Village, Tambaram Taluk, Kancheepuram District. This project is named as Maxworth Nagar Project. 14. Further, the respondent/plaintiff has submitted that the defendants 1 and 2, who are not parties in the revision petition, being the husband and wife, had applied for an independent house with the built up area of 1,280 sq. ft. in Plot Nos. 143 and 144, measuring a total extent of 4,720 sq. ft. by their declaration and selection, dated 30.04.1996 and an allotment advice, dated 30.05.1997, was also issued to the defendants 1 and 2, on payment of Rs. 2,25,000/-. In this allotment advice, it is clearly stated that the ground area of Plot Nos.143 and 144 is 4,720 sq. ft. and a house with built up area of 1,280 sq. ft. would be constructed at a cost of Rs. 14,76,800/-. It is also stated in the said advice that the defendant would be required to pay 25% of the total cost i.e. Rs. 3,69,200/- for completing the first step i.e., to execute the sale deed. However, the defendants 1 and 2 have confirmed the design drawings only on 30.05.1997, after a delay of 11 months. 15. That on 10.06.1997, a development and construction agreement was entered into between the respondent/plaintiff and the defendants 1 and 2. Consequent to this agreement, the possession of the land measuring 4,720 sq. However, the defendants 1 and 2 have confirmed the design drawings only on 30.05.1997, after a delay of 11 months. 15. That on 10.06.1997, a development and construction agreement was entered into between the respondent/plaintiff and the defendants 1 and 2. Consequent to this agreement, the possession of the land measuring 4,720 sq. ft. was handed over to the respondent/plaintiff by the defendants 1 and 2 in terms of Clause 6 of the development and construction agreement for taking up the construction activities in the said plot. The defendants 1 and 2 have paid 25% of the total cost of the house in installments and thereafter the sale deed, dated 09.06.1997, was executed by the respondent/plaintiff in favour of the defendants 1 and 2 and the said sale deed was registered as document No.1824 of 1997, in the Sub Registrar Office at Pallavaram. 16. It is also the case of the respondent/plaintiff that the original sale deed, dated 09.06.1997 and the development and construction agreement, dated 10.06.1997, were handed to the defendants 1 and 2. Subsequently, after informing the development and progress of the construction work, the defendants 1 and 2 were requested to make payment of Rs. 2,34,060/- immediately, so as to enable the respondent/plaintiff to take up further works. 17. Though the defendants 1 and 2 made had some payment, they had not made full payment and on account of this reason, letters were issued to the defendants 1 and 2 on various dates and finally one such letter was issued on 06.07.1998. The defendants 1 and 2 had paid a total sum of Rs. 6,25,000/- as against the total payable amount of Rs. 14,76,800/-and thereafter they did not pay the balance amount. 18. As the defendants 1 and 2 were not prepared to pay the balance outstanding amount, the respondent/plaintiff was constrained to issue a notice, dated 01.08.2008, to them, invoking clause No.18 of the development and construction agreement, dated 10.06.1997. In response to this notice, the defendants 1 and 2 had issued their notice, dated 02.08.2008, informing that they had cancelled the agreement and therefore the plots and the building should be handed over to them 'as is where is' condition. 19. This notice was suitably replied by the respondent/plaintiff and thereafter the defendants 1 and 2 had filed a complaint before the State Consumer Disputes Redressal Commission, in C.C. No. 42 of 2008, on 15.09.2008. 19. This notice was suitably replied by the respondent/plaintiff and thereafter the defendants 1 and 2 had filed a complaint before the State Consumer Disputes Redressal Commission, in C.C. No. 42 of 2008, on 15.09.2008. In the said complaint, two miscellaneous petitions in M.P. Nos. 65 and 66 of 2008 were filed seeking interim injunction as against the respondent/plaintiff and the interim injunction was also granted on 10.10.2008 and subsequently that order was also made absolute on 22.06.2010. 20. According to the respondent/plaintiff, they are in possession of Plot Nos. 143 and 144, consequent to the development and construction agreement dated 10.06.1997. This has been admitted by the defendants 1 and 2. The above complaint in C.C. No. 42 of 2008 is still pending and no orders have been passed directing the respondent/plaintiff to hand over the possession to the defendants 1 and 2. In the meanwhile, the defendants 1 and 2 had created a third party interest over the schedule mentioned properties by executing two sale deeds both dated 02.12.2011, one in favour of the revision petitioners 1 and 2/defendants 3 and 4 and the another one in favour of the third revision petitioner/ fifth defendant. These sale deeds bearing document Nos. 7672 and 7673 of 2011 were registered in the Sub Registrar Office at Pallavaram. Only under this circumstance, the respondent/plaintiff was constrained to file the above suit seeking the reliefs as afore-stated. 21. It is obvious to note here that the interlocutory application in I.A. No. 1019 of 2012 seems to have been filed by the revision petitioners/defendants 3 to 5, on 13.08.2012. On perusal of the counter statement filed by the respondent/plaintiff, which is filed in the interlocutory application, it is revealed from Paragraph No.7 that the respondent/plaintiff Company has filed the present suit in the Vacation Court and along with the suit they have also filed an interlocutory application in I.A. No. 356 of 2012, seeking permission to file a separate suit for cancellation of the two sale deeds, both dated 02.12.2011 and registered as document Nos. 7672 and 7673 of 2011 in the Sub Registrar Office at Pallavaram, executed in favour of the revision petitioners/defendants 3 to 5 by the defendants 1 and 2 in respect of the schedule mentioned properties. 22. 7672 and 7673 of 2011 in the Sub Registrar Office at Pallavaram, executed in favour of the revision petitioners/defendants 3 to 5 by the defendants 1 and 2 in respect of the schedule mentioned properties. 22. The Vacation Court vide it's Order dated 16.05.2012 permitted the respondent/ plaintiff to file a separate suit to cancel the sale deeds and therefore it has been stated in Paragraph No. 7 of the counter statement of the respondent/plaintiff, that the above referred sale deeds, dated 02.12.2011, bearing document Nos. 7672 and 7673 of 2011 are not sought to be set aside in the present suit. 23. With the respondent/plaintiff was permitted to withdraw part of the claim of the suit, in respect of the documents bearing Nos. 7672 and 7673 of 2011, dated 02.12.2011, the competency of the revision petitioners/defendants 3 to 5, to maintain the interlocutory application in I.A. No. 1019 of 2012, under Section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 read with Section 151 of the Code of Civil Procedure, has become questionable. If at all any question is to be maintained, with regard to the question of Court Fee, the defendants 1 and 2 in the suit, who are the parties to the construction agreement, alone can maintain such application. As afore-stated, they have not come forward with such application to raise question, with regard to adequate Court fee. Therefore, the facts of the case in its entirety need not be traversed in this petition. 24. According to the revision petitioners/defendants 3 to 5, the respondent/plaintiff has filed the suit in O.S. No. 146 of 2012, seeking to pre-empt the sale deeds registered as document Nos. 7672 and 7673 of 2011, which have been registered with a declared market value totalling upto Rs. 80,00,000/- (Rupees eighty lakhs). But, the respondent/ plaintiff with reference to prayer portion 'A' has valued the suit at Rs. 6,25,000/- and accordingly the Court Fee to the extent of Rs. 46,875.50, under Section 42(1) of Tamil Nadu Court Fees and Suits Valuation Act, has been paid. Since the relief of permanent injunction has been claimed in prayer (b) portion, the suit in respect of perpetual injunction has been valued at Rs. 1,000/- and therefore a sum of Rs.75.50, under Section 27(c) of Tamil Nadu Court Fees and Suits Valuation Act, has been paid. Since the relief of permanent injunction has been claimed in prayer (b) portion, the suit in respect of perpetual injunction has been valued at Rs. 1,000/- and therefore a sum of Rs.75.50, under Section 27(c) of Tamil Nadu Court Fees and Suits Valuation Act, has been paid. As herein before stated, since the respondent/plaintiff was permitted to withdraw a part of the claim in respect of the two sale deeds executed in favour of the defendants 1 and 2, the question of payment of Court fee to the extent of Rs. 80,00,000/- being the declared market value in respect of the above two sale deeds, does not arise. 25. In this connection, this Court would like to have reference to the provisions of Order XXIII Rule 1 of the Code of Civil Procedure. The provisions of Rule 1 to Order XXIII covers the following two types of cases:- (i) Where the plaintiff withdraws a suit or part of a claim with the permission of the Court to bring in fresh suit on the same subject matter. (ii) Where the plaintiff withdraws a suit without the permission of the Court. In the former case, where the leave of the Court is obtained for filing of a fresh suit on the same subject matter, the plaintiff is entitled to file a fresh suit, subject to such terms, if any, on which the leave might have been granted. Secondly, where the plaintiff chooses to withdraw his suit or any part of a claim unconditionally and without leave of the Court to file a fresh suit on the same cause of action, the plaintiff is forbidden from bringing in a fresh suit on the same subject matter. Because, an order under the provisions of Rule 1 of Order XXIII is based on public policy. This proposition of law has been laid down in Maharashtra K.S. Samiti vs. Horizan, The Beach Hotel, reported in 2006 AIHC 1367 (Bom) : AIR 2006 NOC 1054. 26. Because, an order under the provisions of Rule 1 of Order XXIII is based on public policy. This proposition of law has been laid down in Maharashtra K.S. Samiti vs. Horizan, The Beach Hotel, reported in 2006 AIHC 1367 (Bom) : AIR 2006 NOC 1054. 26. It may be more relevant to note here that the prayer 'A' portion of the plaint appears to be in the nature of specific performance, based on Clause 18 of the development and construction agreement, dated 10.06.1997, which is extracted as under: "The customer hereby covenants and undertakes that if for any reason he/she/they is/are unable to or unwilling to keep to the schedule of payment or for any reason desire to terminate this agreement, MHL is specifically accorded a pre-emptive right to purchase the land as well as the superstructure for an amount equal to the amount paid by the customer till the date, less cancellation charges. This rights of MHL on account of breach of this agreement by way of specific relief or by liquidated damages or penal interest on default or delayed payments or in no way affected." 27. It is significant to note here that the defendants 1 and 2 have not questioned the prayer or maintainability of the suit and their written statement is yet to be filed. Therefore, this Court, on perusal of the Judgment and Decree of the Lower Appellate Court as well as the Order passed by the learned Subordinate Judge, Tambaram, is of view that the respondent/plaintiff has got every right to seek the relief of specific performance dehors the subsequent sale and in this connection they were permitted to file a separate suit for cancellation of the two earlier sale deeds bearing document Nos. 7672 and 7673 of 2011, dated 02.12.2011. 28. Keeping in view of the above facts, the revision petitioners/defendants 3 to 5 in the suit cannot have any competency or locus standi to raise the question of Court Fee under Section 12 (2) of Tamil Nadu Court Fees and Suits Valuation Act and therefore this Court finds that the Judgment and Decree passed by the Lower Appellate Court do not require any interference of this Court and the memorandum of civil revision petition liable to be dismissed. 29. 29. In the result, this memorandum of civil revision petition is dismissed and the Judgment and Decree, dated 31.10.2013 and made in C.M.A. No. 3 of 2013, on the file of the learned Principal District Judge, Chengalpattu, reversing the fair and decretal orders, dated 26.02.2013 and made in I.A. No. 1019 of 2012 in O.S. No. 146 of 2012, on the file of the learned Subordinate Judge, Tambaram, are confirmed. Consequently, connected miscellaneous petition is closed. No costs.