1. Leave and License agreement — Default in payment — Suit for possession with reserved rights for recovery — Subsequent suit for arrears and damages — Application for rejection of plaint. (Para 4 , 6 , 7 )
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2024 Supreme(SC) 583
SUPREME COURT OF INDIA
VIKRAM NATH, PRASANNA BHALACHANDRA VARALE, JJ.
Uniworld Logistics Pvt. Ltd. – Appellant
Versus
Indev Logistics Pvt. Ltd – Respondent
Civil Appeal No. 7308 of 2024 (Arising out of SLP (Civil) No. 10387 of 2024) @Diary No.14716 of 2017)
Decided on : 10-07-2024
Advocates Appeared:
For the Petitioner(s): Mr. K. K. Mani, AOR, Ms. T.archana, Adv., Ms. Rajeev Gupta, Adv.
For the Respondent(s): Mr. Aditya Kumar Choudhary, Adv., Mr. Sandeep Pandey, Adv., Mr. Gurmehar Vaan Singh, Adv., Mr. Rajesh Singh Chauhan, AOR.
For the Petitioner(s): Mr. K. K. Mani, AOR, Ms. T.archana, Adv., Ms. Rajeev Gupta, Adv.
For the Respondent(s): Mr. Aditya Kumar Choudhary, Adv., Mr. Sandeep Pandey, Adv., Mr. Gurmehar Vaan Singh, Adv., Mr. Rajesh Singh Chauhan, AOR.
IMPORTANT POINT
Bar on subsequent suit – Causes of action being separate, second suit will be maintainable.
Headnote:
Civil Procedure Code, 1908 – Order II Rule 2(2) – Bar on subsequent suit – Respondent had specifically stated in plaint of first suit that there were claims for damages and warehouse charges to be recovered for which it reserved its claim for recovery of same – At no stage had respondent given up its claim, nor was there any omission to claim relief of recovery – It was neither a case of relinquishment of claim or omission – Plaintiff-respondent had specifically reserved its rights in first suit regarding claim against warehousing charges, damages for illegal use and occupation etc. and further had applied for leave before Trial Court for filing a separate suit, which leave had been granted – There was neither any relinquishment at any stage, nor omission to claim relief – Both causes of action being separate, second suit was clearly maintainable – Impugned order does not suffer from any infirmity – Appeal dismissed. (Paras 12, 17, 18 and 19)
Facts of the case:
Present appeal assails correctness of judgment and order dated 24.11.2016 passed by High Court of Judicature at Madras whereby, it dismissed civil revision registered as CRP(PD) No.1872 of 2016 and also application under Order VII Rule 11 CPC registered as Application No.3666 of 2016 in Commercial Suit No.323 of 2016. Aggrieved by the same, defendant in both proceedings is before this Court.
Findings of Court:
Both causes of action being separate, second suit was clearly maintainable. Appellant, who is facing recovery of more than Rs.8 Crores, is unnecessarily trying to delay progress in suit, which is pending since 2016.
Result : Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a subsequent suit for recovery of arrears and damages is barred under Order II Rule 2 CPC when rights were reserved in a prior suit for possession. (Para 14 , 15 )
3. The court found separate causes of action for possession and recovery of arrears, noting that leave under Order II Rule 2(3) CPC was granted and rights were reserved. (Para 12 , 17 )
4. A suit for possession and a suit for damages/arrears constitute different causes of action; a second suit is maintainable if leave is granted under Order II Rule 2(3) CPC. (Para 16 , 17 )
5. Appeal dismissed; impugned order upholding the maintainability of the recovery suit and dismissing the application for rejection of the plaint is affirmed. (Para 18 , 19 )
6. Does a suit for possession bar a subsequent suit for recovery of arrears and damages?
No. A suit for possession and a suit for claiming damages for use and occupation of the property are based on two different causes of action. Therefore, a second suit for recovery of arrears and damages is maintainable. (Para 16 , 17 )
7. How does Order II Rule 2(3) of the CPC affect the filing of a subsequent suit?
Under Order II Rule 2(3) CPC, a plaintiff may seek leave of the court in the first suit to omit a claim or relief, allowing them to sue for that relief later in a separate suit. (Para 6 , 12 )
8. What constitutes relinquishment or omission of a claim under Order II Rule 2 CPC?
Relinquishment or omission occurs when a plaintiff gives up a claim or fails to include a relief they were entitled to in the first suit. If the plaintiff specifically reserves their rights to claim recovery in the first plaint, it is neither relinquishment nor omission. (Para 12 , 17 )
JUDGMENT :
Vikram Nath, J.
Delay, if any, is condoned.
2. Leave granted.
3. This appeal assails the correctness of the judgment and order dated 24.11.2016 passed by the High Court of Judicature at Madras whereby, it dismissed the civil revision registered as CRP(PD) No.1872 of 2016 and also an application under Order VII Rule 11 CPC registered as Application No.3666 of 2016 in Commercial Suit No.323 of 2016. Aggrieved by the same, the defendant in both the proceedings is before this Court.
4. Brief facts giving rise to the present appeal is as follows:
A Leave and License agreement was originally entered into between the appellant and the respondent on 25.11.2008. This agreement was superseded by another agreement dated 01/12/2010 whereby the appellant became a licensee in respect of a warehouse on a monthly license fee of Rs.30 lakhs with an escalation clause. As there was default in payment of storage charges, the respondent gave a legal notice dated 27.11.2014 terminating the license, claiming dues towards storage charges, damages and directing the appellant to vacate the warehouse premises within two months. The appellant replied to the said notice on 18.12.2014 denying the dues and also raising some objections regarding extent of the building mentioned in the notice. The respondent instituted a suit for permanent injunction and also to hand over vacant possession in the Court of District Munsif, Sriperumbudur registered as O.S. No.101 of 2015. The respondent in the plaint of the above suit had clearly mentioned that there were outstanding dues and arrears of storage charges of Rs.2,04,68,464/-. It was further specifically mentioned that respondent-plaintiff reserves its rights to claim against the defendant-appellant for recovery of arrears and also damages due to the illegal use and occupation of the Schedule-B property.
5. After about seven months, the appellant filed a commercial suit before the Madras High Court registered as C.S. No.914 of 2015 against the respondent and also Small Industries Promotion Corporation of Tamil Nadu for the relief of declaration that the respondent had given only 1,03,522 sq. ft. area of the factory shed and not 1,50,000 sq. ft. under the Leave and License agreement dated 25.11.2008.
6. On 24.11.2015, the respondent filed an application under Order II Rule 2(3) read with Section 151 CPC in its pending O.S. No.101 of 2015 seeking leave to sue the appellant by way of a separate suit claiming arrears of storage charges, warehouse charges and damages for illegal use and occupation beyond the period allowed in the notice dated 27.11.2014. The said application registered as IA No.2001 of 2015, was allowed by the District Munsif Court on the same day. However, the High Court, upon revision by the appellant, set aside the said order and remanded the matter back to the Trial Court for a fresh decision after affording due opportunity of hearing to the defendant to the suit i.e. the appellant. This order was passed by the High Court on 28.01.2016. After remand, the District Munsif Court, by a detailed reasoned order dated 15.04.2016, again granted leave under Order II Rule 2(3) CPC to the respondent to file a separate suit against the appellant. Aggrieved, the appellant challenged the same before the High Court under Article 227 of the Constitution, which was registered as CRP (PD) No.1872 of 2016.
7. In the meantime, the respondent filed a Commercial Suit No.323 of 2016 before the Madras High Court against the appellant for recovery of arrears of storage charges, warehouse charges and damages for an amount of Rs.8,42,88,761/-. In the said C.S. No.323 of 2016, the appellant filed an application being IA No.3666 of 2016 under Order VII Rule 11(d) read with Order II Rule 2 of CPC for rejection of the said claim. This application was filed on 21st July, 2016.
8. The civil revision as also the application under Order VII Rule 11 CPC were heard together by the High Court and vide judgment and order dated 24.11.201
