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HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
The Tamil Nadu Small Industries Development Corporation Ltd. – Appellant
Versus
P. Kalavathy Sukumar – Respondent
Second Appeal No. 642 of 2014 & M.P. No. 1 of 2014
Decided On : 10-02-2015
Evidence Act - Section 5 - Limitation Act - Civil Procedure Code - Order 2 - Rule 2 - Pecuniary jurisdiction – Condo nation of delay - Proprietary concern known as Products - Subject matter of suit is a shed bearing at Industrial Estate - Said she was originally allotted by appellant Tamil Nadu Small Industries Development Corporation Limited to one proprietor of Products on a rental scheme - Due to loss in business took one as a partner under same name and style and conducted business - Said partnership was later on dissolved as retired from partnership – Thereafter took respondent herein and one as partners under a partnership deed - Business was continued in subject shed in same name and style - While so defendant issued a letter offering land and building on lease cum sale basis - Provisional cost of land and building was fixed and plaintiff was asked to pay a sum of being of above cost - Partnership firm accepted terms and conditions and paid amount – Thereafter defendant was informed about above change in Constitution by letter - A reply was sent by defendant requiring partnership firm to furnish certain particulars individual declaration certificates etc - Partnership firm complied with same under letter - Later on defendant issued yet another letter again reiterating same terms and conditions for lease cum sale - Until this stage there was no dispute between parties – Held, senior counsel would nextly contend that this suit has been filed by as proprietary of Products with whom there is no privity of contract - Learned counsel for respondent would submit that this argument is not available for learned senior counsel appearing for appellant in view of decree and subsequent conduct of appellant - Though it is true that originally lease cum sale agreement was between and appellant defendant but subsequently when partnership was sought to be introduced defendant also agreed with same and demanded for production of certain documents like declaration etc and such particulars were submitted it is in evidence – Subsequently letter was sent demanding more amount for purpose of recognizing partnership - It is true that as of now there is no order recognizing partnership but suit was filed by partnership firm and decree is in favor of partnership firm - Further subsequent communications would also go to show that partnership has been recognized by defendant – Therefore contention of learned senior counsel for appellant that there was no privity of contract between partnership and defendant cannot be accepted - It is in evidence that new partnership was dissolved between present plaintiff - As per Partnership Act as rightly contended by counsel for respondent plaintiff has acquired all rights of partnership and therefore there is privity of contract between plaintiff and defendant and therefore suit filed by her in present form is certainly maintainable - In view of all above court answer all substantial questions of law against appellant and court also hold that there is no merit at all in this appeal even on facts – Appeal dismissed
1. The defendant in O.S.No.295 of 1996 on the file of the learned District Munsif, Ambattur is the appellant herein. This suit was originally filed before the Subordinate Court, Poonamallee on 22.04.1996 and numbered as O.S.No.295 of 1996. Then, after the change in the pecuniary jurisdiction, the suit was transferred to the learned District Munsif, Ambattur and accordingly the same was renumbered as O.S.No.95 of 2004. The respondent herein is the sole plaintiff in the said suit. The said suit was filed for specific performance of contract seeking a direction to the defendant to execute a sale deed relating to the Shed bearing No.L-16 at Ambattur Industrial Estate, Ambattur in the name of the plaintiff. The suit was resisted by the appellant herein (defendant in the suit). The learned District Munsif, Ambattur by decree and judgment dated 13.04.2009, decreed the suit as prayed for. As against the same, the appellant herein filed an appeal in A.S.No.66 of 2009 and by decree and judgment dated 09.11.2010, the lower appellate Court dismissed the appeal thereby confirming the decree and judgment of the trial Court. As against the same the appellant is before this Court with this second appeal.
2. This second appeal was presented on 13.12.2012, with a delay of 660 days. Seeking to condone the said delay, the appellant herein filed M.P.No.1 of 2013 in S.A.(SR)No.106476 of 2012 and notice was ordered in the said petition to the respondent and accordingly the respondent made appearance. The delay was condoned by an order dated 05.06.2014, and thereafter the second appeal came up for admission. The learned counsel for the respondent continued to appear in the second appeal. The matter was listed for admission on 23.06.2014, 30.06.2014, 02.07.2014, 04.07.2014, 08.07.2014, 16.07.2014, 21.07.2014, 22.07.2014, 07.08.2014, 13.08.2014, 27.08.2014, 03.09.2014, 10.09.2014, 15.09.2014, 17.09.2014, 19.09.2014, 23.09.2014, 13.10.2014, 30.10.2014, 11.11.2014, 25.11.2014, 05.12.2014, 06.01.2015, 20.01.2015, 22.01.2015, 29.01.2015, 30.01.2015, 03.02.2015. The matter stood adjourned at the request of the counsel. When it lastly came up for hearing on 05.02.2015, the learned counsel on either side submitted that records be called for and the appeal be heard finally. The records have been now received by this Court.
3. Today the matter has come up for admission and for final hearing. I have heard the learned senior counsel appearing for the appellant and the learned counsel appearing for the respondent and also perused the records carefully.
4. The case of the plaintiff in brief is as follows:
The plaintiff is one Mrs.P.Kalavathy Sukumar, describing herself as the Proprietrix of a
proprietary concern known as "M/s Gitkara Products". The subject matter of the suit is a shed bearing No.L-16 at the Industrial Estate, Ambattur. The said shed was originally alloted by the appellant, the "Tamil Nadu Small Industries Development Corporation Limited", to one Mr.Dikshitalu, the proprietor of M/s Gitkara Products in the year 1972 on a rental scheme. Mr.Dikshitalu, due to loss in the business, took one Mr.Elumalai as a partner under the same name and style and conducted the business. The said partnership was later on dissolved on 18.10.1982, as Mr.Elumalai retired from the partnership. Thereafter, Mr.Dikshitalu took Mrs.P.Kalavathi Sukumar-the respondent herein and one Mr.P.Vijayaraghavalu Chetty as partners under a partnership deed dated 27.10.1982. The business was continued in the subject shed in the same name and style. While so, the defendant issued a letter dated 20.09.1982, offering the land and building on lease cum sale basis. The provisional cost of the land and building was fixed at Rs.46,817/- and the plaintiff was asked to pay a sum of Rs.9,364/- being 20% of the above cost. The partnership firm accepted the terms and conditions and paid the amount. Thereafter, the defendant was informed about the above change in the Constitution by letter
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