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2017 Supreme(Mad) 1288
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
V.R. Senthilnathan Chettiar (Died) and others – Appellants
Vs.
V.R. Arunachalam Chettiar – Respondent
A.S.No.829 of 1998 and C.M.P.No.9706 of 2002 & M.P.(MD) Nos.2 of 2007 & 1 of 2008
Decided On : 13-06-2017
For the Appellant : Mr. R.A. Mohan Ram
For the Respondent: Mr. R.Sundar Srinivasan
Headnote:
Appeal Suit has been filed against the Judgment and Decree of the learned Subordinate Judge, at Devakottai – Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent – defendant in the suit in O.S. on the file of the Subordinate Court, Devakottai, is the first appellant in the above appeal – Respondent in the appeal has filed the above suit for recovery of a sum of with interest at 12% p.a., on the sum of from the date of plaint and with future interest at 12% p.a., till realization – During the pendency of this appeal, the defendant/appellant died and his legal representatives have come on records as appellants –Held, After referring to the Provisions under order 7 Rule 13 of C.P.C., the trial Court found that the previous suit which was filed for recovery of money on the basis of the Promissory Note was not dismissed on merits – From the facts recorded by the trial Court, it is clear that the plaint in the previous suit was rejected under Order 7 Rule 11 of C.P.C., for non-payment of deficit Court fee within the time granted by the Court. When the plaint was rejected under Order 7 Rule 11 of C.P.C., it does not preclude the plaintiff to present a fresh plaint in respect of the same cause of action – Now in this case, the suit is not on the basis of the Promissory Note, but on the original cause of action – Hence, the rejection of the plaint, on the earlier occasion is nothing to do with the present suit and the present suit is not barred because of the rejection of the plaint earlier –Appeal is therefore dismissed.
This Appeal Suit has been filed against the Judgment and Decree of the learned Subordinate Judge, at Devakottai, in O.S. No.118 of 1995, dated 29.06.1998.
2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
3. The defendant in the suit in O.S.No.118 of 1995 on the file of the Subordinate Court, Devakottai, is the first appellant in the above appeal. The respondent in the appeal has filed the above suit for recovery of a sum of Rs.6,79,333.30/- with interest at 12% p.a., on the sum of Rs.5,00,000/- from the date of plaint and with future interest at 12% p.a., till realization. During the pendency of this appeal, the defendant/appellant died and his legal representatives have come on records as appellants 2 to 4.
4. The case of the respondent/plaintiff in the suit are as follows:-
The defendant is the plaintiff's younger brother and the plaintiff and the defendant are the sons of AL.VR.ST.Veerapa Chettiyar and Unnamalai Achi. The said Veerapa Chettiyar pre-deceased Unnamalai Achi.
5. As between the plaintiff and the defendant, there was an oral family arrangement regarding partition of the properties of the family at Devaram Village. This oral family arrangement was evidenced and also written as Yadast, dated 25.12.1985. The defendant, the plaintiff's younger brother was in the management of the family properties at Devaram Village. A house property which was purchased in the name of the defendant was allotted to the plaintiff and it was agreed that the defendant should execute suitable document conveying the property in favour of the plaintiff. However, during this arrangement, the defendant alienated the said house and there was a dispute. Similarly, the defendant was managing the properties at Devaram Village, there was some dispute because of the failure of the defendant to render accounts. It was only to resolve the dispute, the oral family arrangement as intended in the Yadast was necessitated during the last week of April 1988. As per the family arrangement, the defendant agreed to pay a sum of Rs.5,00,000/- out of the amount lying in Court deposit in the name of the mother of the plaintiff Unnamalai Achi as soon as the money was withdrawn from the Court.
6. In the furtherance of the family arrangement, the defendant executed a Promissory Note for the said sum of Rs.5,00,000/- as security and another letter, dated 28.04.1988 at Devakottai. In that letter, the defendant undertook to pay the said sum of Rs.5,00,000/- without interest out of the amount lying in the Court deposit in the Subordinate Court, Periyakulam, in the name of Unnamalai Achi. As soon as the amount was withdrawn from the Court, the defendant admitted his liability to pay a sum of Rs.5,00,000/- to the plaintiff and undertook to pay the said sum.
7. The defendant did not repay the said amount of Rs.5,00,000/-, even after the amount in the Court deposit was withdrawn by Unnamalai Achi, on 21.08.1992. The defendant is estopped in law from disputing his liability to pay the amount.
8. From the reading of the plaint, the case of the plaintiff rests on the oral family arrangement, dated 25.12.1985 and the legal obligation of the defendant to honour his promise to pay to the plaintiff as part of the family arrangement which was acknowledged by the defendant under the Promissory Note, dated 28.04.1988 and the letter dated 28.04.1988.
9. The suit was contested by the defendant by filing a detailed written statement, in the following lines:-
(a) The Promissory Note and the Varthamanam letter are devoid of consideration and hence they are invalid and unenforceable.
(b) Either on 28.04.1988 or on any subsequent date, no amount mentioned in the Promissory Note and in the Varthamanam letter was paid to the defendant by the plaintiff and hence, there is no consideration for the Promissory Note and Varthamanam letter, dated 28.04.1988.
(c) There was no promise by the defendant under the letter to pay the money by
