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2013 Supreme(Mad) 1660
In the High Court of Madras
M. Jaichandren and M.M. Sundresh, JJ.
Anil Nahar and another - Appellants;
Versus
Vijay Nahar - Respondent.
O.S.A. Nos. 280 & 281 of 2012 and M.P. Nos. 1+1 of 2012
Decided on : April 18, 2013
K. Ramu, Advocate for Appellant.
AR.L. Sundaresan, Senior Counsel for Satish Parasaran, Advocate for Respondent.
The principle of res judicata applies to interlocutory applications, and the decision in such applications can bind both parties in subsequent proceedings.
Headnote:
Res Judicata - Injunction - Companies Act, 1956 - O.A. Nos. 47 & 48 of 2012 - Items 1 & 2 of 'A' Schedule properties - O.A. Nos. 84 & 85 of 2004 - Bacha F. Guzdar v. Commissioner of Income Tax, Bombay, AIR 1955 SC 74
Fact of the Case:
The Respondent filed a Suit for partition and separate possession of properties, seeking an order of injunction against alienation and encumbrance. The Appellants, Defendants in the Suit, appealed against the order of injunction granted by the learned Single Judge.
Finding of the Court:
The Court found that the earlier order rejecting encumbrance in O.A. Nos. 84 & 85 of 2004 had become final between the parties and applied the principle of res judicata. The Court allowed encumbrance for availing loan but prohibited construction pending disposal of the Suit.
Issues: The issues involved the applicability of res judicata to interlocutory applications, the maintainability of the Suit against a Company, and the scope of relief sought by the Respondent.
Ratio Decidendi: The Court held that the decision in interlocutory applications would amount to res judicata, binding both parties. It also clarified the scope of relief regarding encumbrance and construction pending disposal of the Suit.
Final Decision: O.S.A. No. 281 of 2012 was dismissed, and O.S.A. No. 280 of 2012 was allowed in part, permitting encumbrance for availing loan. The learned Single Judge was requested to dispose of the Suit within six months.
M.M. Sundresh, J.
These Appeals have been preferred by the Appellants being aggrieved by the Common Order and Decree passed in O.A. Nos. 47 & 48 of 2012, dated 27.6.2012, by which an order of injunction was granted against the alienation and encumbrance over the suit properties.
2. The Appellants herein are the Defendants in the Suit. A Suit is laid by the Respondent for partition and separate possession. The suit properties, namely, Items 1 & 2 of the ‘A’ Schedule properties, were purchased in the name of the Second Appellant. The Second Appellant is the Company registered under the Companies Act, 1956.
3. Earlier, Applications were filed by the Respondent seeking an order of injunction. This Court, by a detailed order in O.A. Nos. 84 & 85 of 2004, granted an order of injunction against alienation alone. In the said order, the learned Single Judge has specifically stated that the prayer sought for against encumbrance cannot be granted. The said order of the learned Single Judge has become final between the parties.
4. Thereafter, the present Applications, namely, O.A. Nos. 47 & 48 of 2012 have been filed by the Respondent before the learned Single Judge, seeking an order of injunction against the proposed alienation and encumbrance as well. The learned Single Judge allowed both the Applications and hence, the present Appeals.
5. Mr. K. Ramu, learned Counsel appearing for the Appellants, would submit that the order passed by the learned Single Judge is contrary to law, as the Principles of res judicata would apply to the Interlocutory Applications as well. The learned Counsel would further submit that while there is no dispute regarding the order passed by the learned Single Judge on the earlier occasion that Appellants could not alienate Items 1 & 2 of ‘A’ Schedule properties, the earlier order would govern the issue regarding encumbrance. Therefore, the learned Single Judge has in fact reviewed the earlier order passed in O.A. Nos. 84 & 85 of 2004, which has become final between the parties.
6. The learned Counsel also submitted that what the Appellants seek is only to process the Application, seeking permission before the appropriate authorities and such a course adopted by the Appellants cannot be prevented.
7. It is further submitted by the learned Counsel for the Appellants that admittedly, the properties stand in the name of the Second Appellant. The Second Appeal being a Company and the Respondent not being a shareholder, the Suit laid as such is not maintainable in law. According to the Counsel, even assuming that the Respondent is a shareholder, such a relief cannot be sought for. The interim relief is incidental to the main relief and the main relief itself is not maintainable in law and hence, the Appeals will have to be allowed. In support of his contention, the learned Counsel for the Appellants relies upon the decision of the Apex Court in Bacha F. Guzdar v. Commissioner of Income Tax, Bombay, AIR 1955 SC 74.
8. Per contra, Mr. AR.L. Sundaresan, learned Senior Counsel for the Respondent, would contend that what is proposed by the Appellants, would in fact, amount to alienation. The third party interest would step in. Therefore, considering the above said facts, the learned Single Judge has rightly allowed the Applications. When the learned Single Judge has considered the materials available on record, this Court, sitting on Appeal, shall not interfere with the same by re-appreciating the same. Hence, the learned Senior Counsel would submit that the Appeals will have to be dismissed.
9. The fact that the earlier Applications filed by the Respondent in O.A. Nos. 84 & 85 of 2004 and the decision rendered therein has become final between the parties, is not in dispute. In the said order, the learned Single Judge has specifically rejected the request of the Respondent regarding encumbrance. Even though the learned Single Judge in the Applications, which are under challenge before us, has taken note of the earl
