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MADRAS HIGH COURT
S. Nagamuthu, J.
Tamil Nadu Small Industries Development Corporation Ltd., Rep by its Chairman and Managing Director, Chennai - 600 006 - Appellant
Versus
P. Kalavathy Sukumar – Respondent
Second Appeal No. 642 of 2014 and M.P. No. 1 of 2014
Decided on : 10-02-2015.
Code of Civil Procedure, 1908 - Order 2 Rule 2 - Limitation Act,1963 - Article 54 - Partnership Act,1932 - Evidence Act,1872 - Section 5 - Sale Agreement - Partnership - Defendant sent a letter informing plaintiff that cost of land and building had been fixed at Rs.1,42,815/- including interest and further declaring that balance of amount, after adjusting sums already paid, should be paid in one lump sum on or before 30.09.1985, to consider approval of change in constitution and to revoke cancellation of allotment already issued and if the amount was not paid before 30.09.1985 further action would be taken to resume shed. - The plaintiffs partnership firm was aggrieved over same and therefore a suit was filed – Held, Learned counsel for respondent would submit that this argument is not available for learned senior counsel appearing for appellant in view of the decree and subsequent conduct of appellant - Though it is true that originally lease cum sale agreement was between Mr.Dikshitalu 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 recognising partnership - It is true that as of now there is no order recognising partnership, but suit was filed by partnership firm and decree is in favour of partnership firm - Further, subsequent communications would also go to show that partnership has been recognised 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 and Mr.Dikshitalu - As per Partnership Act, as rightly contended the learned counsel for respondent, plaintiff has acquired all rights of the partnership and therefore there is privity of contract between plaintiff and defendant and therefore suit filed by her in present form is certainly maintainable – Appeal Dismissed.
S. Nagamuthu, J.
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 allotted 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 Co
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