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2019 Supreme(Mad) 2374
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
M/s. Sellam Associates Rep. By its Managing Partner Palanisamy, Erode District - Appellant
Versus
The State of Tamilnadu rep. By the District Collector, Erode District & Others - Respondents
S.A. No. 151 of 2019 & C.M.P. No. 2831 of 2019
Decided On : 04-10-2019
For the Appellant :N. Manokaran, Advocate
For the Respondents:M. Sricharan Rangarajan, Spl.G.P. (CS), Assisted by N. Manikandan, Government Advocate (CS).
Headnote:
Civil Procedure Code,1908 – Sections 9 and 100 - Order 1 Rules 9 and 13 - Challenge is made to judgment and decree - Suit on ground of non joinder of necessary parties in absence of any pleading and issues - Whether the first appellate court is right in law in dismissing the suit on the ground of maintainability as per clause 24 of Contract under Ex.B1 particularly when jurisdiction of the civil court has not been specifically ousted - Plaintiff has laid the suit against the defendants seeking for relief of declaration that letter/notice sent by defendant is null and void, arbitrary and unenforceable and not binding upon plaintiff and for relief of permanent injunction restraining the defendants their men their agents etc from in any way and any manner collecting the amounts due under notice and for the relief of mandatory injunction directing defendants to refund sum of deducted from deposits made by the plaintiff and for the costs - Held, First Appellate Court has erred in holding that plaintiff-s suit is not maintainable as per clause 24 of general conditions of contract - When it is found that by way of above said clause jurisdiction of Civil Court has not been ousted and more particularly when plaintiff has challenged impugned letter on ground that same had come to be issued without hearing him and without providing an opportunity to present his case and in compliance with principles of natural justice and in such view of matter - It is found that the suit laid before the Civil Court is legally sustainable and there is no bar in instituting the suit and clause 24 of the general conditions of the contract does not bar the jurisdiction of Civil Court and furthermore plaintiff having impleaded all the proper and necessary parties to list in such view of matter first appellate court has committed an error in holding that suit is bad for non-impleadment of the District Collector and Officials of Highways Department and accordingly substantial questions of law formulated in Second Appeal are accordingly answered in favor of plaintiff and against the defendants - Second Appeal is allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 13.09.2012 made in A.S.No.30 of 2012 on the file of the First Additional Sub Court, Erode reversal of the judgment and decree dated 21.10.2011 made in O.S.No.135 of 2010 on the file of the Second Additional District Munsif Court, Erode.)
In this Second Appeal, challenge is made to the judgment and decree dated 13.09.2012 passed in A.S.No.30 of 2012 on the file of the First Additional Subordinate Court, Erode reversing the judgment and decree dated 21.10.2011 passed in O.S.No.135 of 2010 on the file of the Second Additional District Munsif Court, Erode.
2. The Second Appeal has been admitted on the following substantial questions of law:
(a) Whether the first appellate court is right in law in dismissing the suit on the ground of maintainability as per clause 24 of the Contract under Ex.B1 particularly when the jurisdiction of the civil court has not been specifically ousted under Sec. 9 of CPC?
(b) Whether the Civil Court is debarred from adjudicating the unilateral demand made by the fourth defendant under Ex.A25 dated 29.12.2009 especially when the impugned demand is per se illegal and non-est for want of prior opportunity of hearing in compliance with the principles of Natural Justice?
(c) Whether the first appellate court has committed an error in dismissing the suit on the ground of non joinder of necessary parties in the absence of any pleading and issues, more particularly, no suit shall be dismissed on that ground as per Order 1 Rules 9 and 13 CPC?
(d) Whether the suit filed by the plaintiff before the civil court to declare the impugned demand notice dated 29.12.2009 (Ex.A25) is maintainable in law in the absence of any statutory bar?
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
5. Suit for declaration, permanent injunction and mandatory injunction.
6. The plaintiff has laid the suit against the defendants seeking for the relief of declaration that the letter/notice sent by the 4th defendant dated 29.12.2009 in Na.Ka.No.3732/2005/A2/ is null and void, arbitrary and unenforceable and not binding upon the plaintiff and for the relief of permanent injunction restraining the defendants, their men, their agents etc., from in any way and any manner collecting the amounts due under the notice dated 29.12.2009 and for the relief of mandatory injunction directing the defendants to refund the sum of Rs.23,80,489/- deducted from the deposits made by the plaintiff and for the costs.
7. It is found that the plaintiff was entrusted with certain road improvement works by the defendants and according to the defendants the plaintiff has failed to fulfill the terms of the contract and carry out the work entrusted to it successfully and also unable to complete the work within the stipulated period and also within the extended period, hence according to the defendants they had terminated the contract issued to the plaintiff and entrusted the unfinished work left by the plaintiff to another contractor and accordingly it is put-forth that on account of the above said factors, as the defendants had sustained loss to the extent of Rs.41,90,404/-, according to the defendants deducting the deposit amounts made by the plaintiff and accordingly thereafter determining that the plaintiff has to pay a sum of Rs.18,12,975/- , it is put-forth by the defendants that the letter dated 29.12.2009 has been issued by the 4th defendant calling upon the plaintiff to pay the above said sum to the defendants. Impugning the above said notice, the plaintiff has come forward with the suit seeking for appropriate reliefs as above stated.
8. As to on what grounds the plaintiff has impugned the above said letter dated 29.12.2009 ma
