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2007 Supreme(Mad) 3389
Before the Madurai Bench of Madras High Court
G. RAJASURIA
J.M. Samy
Versus
B. Varadan (Died) & Others
Appeal Suit No.902 of 1991
Decided On : 29-10-2007
For the Appellant:R. Subramanian, Advocate. For the Respondents: No Appearance.
The plaintiff's failure to object to the withdrawal of the amount from the Supreme Court barred them from filing a separate suit for recovery.
Headnote:
Withdrawal - Recovery of Deposited Amount - -
Fact of the Case:
The plaintiff, a registered partnership firm, leased premises from the defendant and deposited a sum of Rs.25,000 in compliance with a Supreme Court order. The defendant later withdrew the amount, leading to the plaintiff filing a suit for recovery.
Finding of the Court:
The trial court dismissed the suit, stating that it was misconceived and not in accordance with law. The court found that the suit was based on the recovery of the withdrawn amount and not on the loan transaction and amounts due. The court held that the plaintiff's failure to object to the withdrawal of the amount from the Supreme Court barred them from filing a separate suit for recovery.
Issues: The main issue was whether the trial court was justified in dismissing the suit on the ground that the plaintiff failed to object to the defendant's withdrawal of the deposited amount from the Supreme Court.
Ratio Decidendi: The court determined that the suit was misconceived and not in accordance with law, as it was based on the recovery of the withdrawn amount and not on the loan transaction and amounts due. The plaintiff's failure to object to the withdrawal of the amount from the Supreme Court barred them from filing a separate suit for recovery.
Final Decision: The appeal was dismissed, and no costs were awarded.
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. 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 t
