Over 2 lakh Indian cases. Search powered by Google!

Case Details

N.ELANGO versus THE TRICHY MUNICIPALITY ADVISORY

High Court of Madras

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


N.Elango v. The Trichy Municipality Advisory - A.S.No.263 of 1995 [2007] RD-TN 1018 (20 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 20/03/2007

Coram

The HONOURABLE MR.JUSTICE A.SELVAM

A.S.No.263 of 1995

and

A.S.No.210 of 1996

N.Elango .. Appellant in A.S.No.263 of 1995 & respondent in A.S.No.210 of 1996 Vs.

The Trichy Municipality Advisory

Committee, Tiruchirapalli,

rep. By its Executive Authority

the Commissioner. .. Respondent in A.S.No.263 of 1995 & appellant in A.S.No.210 of 1996

These appeals have been filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 21.09.1993 rendered in O.S.No.228 of 1989 by the III-Additional Subordinate Court, Tiruchirapalli. For appellant in

A.S.No.263 of 1995

& respondent in

A.S.No.210 of 1996 : Mr.S.K.Mani

For respondent in

A.S.No.263 of 1995

& appellant in

A.S.No.210 of 1996 : Mr.P.Srinivas

:COMMON JUDGMENT



Both the plaintiff and defendant have challenged the legality of the judgment and decree dated 21.09.1993, rendered in Original Suit No.228 of 1989 by the 3rd Additional Subordinate Court, Tiruchirapalli.

2. The appellant in Appeal Suit No.210 of 1996 as plaintiff, has instituted the Original Suit No.228 of 1989 on the file of the 3rd Additional Subordinate Court, Tiruchirapalli, wherein the appellant found in Appeal Suit No.263 of 1995 has been shown as the sole defendant.

3. The material averments made in the plaint can be stated like thus;

The suit property absolutely belongs to the plaintiff. The plaintiff has used to auction the rights of advertising on the walls, once in three years. The public auction has been conducted on 02.02.1983 by the plaintiff subject to the terms and conditions stipulated in the auction notice. The defendant has become successful bidder for the period commencing from 01.04.1983 to 31.03.1986 and the bid amount has been fixed at Rs.47,100/- per annum. The plaintiff has confirmed the auction of the defendant by its resolution dated 14.02.1983 in M.C.R.No.255. The defendant has deposited a sum of Rs.500/- towards security on 02.02.1983, and a sum of Rs.3,000/- on 16.03.1983 and another sum of Rs.5,002/- on 30.03.1983. The defendant has also deposited Rs.3,936/- on 16.03.1983 towards three months kist. The defendant is a chronic defaulter and till expiry of his licence on 31.03.1986, he has paid Rs.1,308/- by demand draft on 25.07.1983 and in similar way, he has paid Rs.2,616/- on 24.10.1983. During license period, the defendant has made 42 advertisements. The defendant has not paid conditional fee at the rate of 10 paise per advertisement for one day. Now, the defendant is liable to pay to the tune of Rs.35,435/- with interest and under the said circumstances, the plaintiff has come forward with the present suit praying to pass a money decree in its favour against the defendant.

4. The material averments made in the written statement filed by the defendant can be stated like thus;

It is true that the suit property absolutely belongs to the plaintiff. It is also equally true that the defendant has become successful bidder of rights to make advertisement in the suit property for a period of three years in the public auction held on 02.02.1983. Pursuant to the public auction, the defendant has received a communication on 17.02.1983 from the plaintiff, directing him to pay the required deposit within 7 days and also to execute an agreement and register the same. The said intimation has not stipulated the time within which the said agreement has to be executed. The plaintiff has not sent any form or details of the proposed agreement. The defendant has deposited a sum of Rs.3,936/- and he has also deposited Rs.3,000/- & Rs.5,002/-. The plaintiff has no right to compel the defendant to execute a registered agreement. Since the plaintiff has attempted to interfere with the rights of the defendant in making advertisements, the defendant has filed the Original Suit No.784 of 1983 for the relief of permanent injunction against the plaintiff. In the said suit, an order of ad-interim injunction has been granted in I.A.No.497 of 1983. The Original Suit No.784 of 1983 has been dismissed as not pressed, since the license period has become expired on 31.03.1986. The plaintiff has allowed the third parties to make advertisements in the suit property. It is false to say that the defendant has made 42 advertisements during license period. The suit is barred by limitation. There is no merit in the suit and the same deserves dismissal.

5. On the basis of divergent contentions raised by either party, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit in part. Against the allowed portion, the defendant has preferred Appeal Suit No.263 of 1995 and against the disallowed portion, the plaintiff has preferred Appeal Suit No.210 of 1996.

6. Since a common question of law and facts are involved in both the appeals, common judgment is passed.

7. The learned counsel appearing for the appellant/defendant in Appeal Suit No.263 of 1995 has strenuously contended that the appellant/defendant has become a successful bidder in the public auction held on 02.02.1983 by the plaintiff and bid amount has been fixed at Rs.47,100/- and the appellant/defendant has deposited some amounts and the respondent/plaintiff has compelled the appellant/defendant to execute a registered agreement, but the respondent/plaintiff has failed to send proper form to the appellant/defendant and therefore, the appellant/defendant has not been able to execute a registered agreement in favour of respondent/plaintiff and since the appellant/defendant has failed to execute a registered agreement in favour of the respondent/plaintiff, the respondent/plaintiff has canceled the right of the appellant/defendant on 18.04.1983 and the present suit has been instituted only for the arrears of amount and the present suit ought to have been filed on or before 17.04.1986, but the present suit has been instituted only on 05.08.1987 and therefore, the same is clearly barred by limitation, but the trial Court without considering the plea of limitation raised on the side of the appellant/defendant, has erroneously decreed the suit in part and therefore, the judgment and decree passed by the trial Court are liable to be reversed and the suit is also equally liable to be dismissed.

8. The learned counsel appearing for the appellant/plaintiff in A.S.No.210 of 1996 has also equally contended that even though the right of license granted in favour of the respondent/defendant has been canceled on 18.04.1983, the respondent/defendant has filed the Original Suit No.784 of 1983 against the appellant/plaintiff for the relief of permanent injunction and also obtained temporary injunction against the appellant/plaintiff and till the expiry of the license period that is upto 31.03.1986, the respondent/defendant has enjoyed his rights and the said suit has been dismissed as not pressed only on 06.06.1988 and further, the respondent/defendant has paid amounts till 24.10.1983 and the present suit has been instituted on 05.08.1987 and therefore, the same is not barred by limitation.

9. Before considering the rival submissions made by either counsel, the Court has to meticulously analyse the nature of the amount claimed in the plaint. From the close scrutiny of the plaint, it reveals that the appellant/defendant in A.S.No.263 of 1995 has become successful bidder in the public auction held on 02.02.1983 and bid amount has been fixed at Rs.47,100/-. The appellant/defendant has also agreed to pay 10 paise per advertisement. Therefore, it is very clear that the present suit has been instituted only to recover the balance of bid amount as well as the advertisement charges with interest at the rate of 24 per annum.

10. The specific case of the appellant/defendant in Appeal Suit No.263 of 1995 is that the suit is barred by limitation. The specific case of the appellant/plaintiff in Appeal Suit No.210 of 1996 is that since the defendant has filed the Original Suit No.784 of 1983 and obtained temporary injunction against the plaintiff and the said suit has been dismissed as not pressed only on 06.06.1988 and since the defendant has paid amount on 24.10.1983, the present suit is not barred by limitation.

11. At this juncture, it would be more useful to look into Exs.A6 & B9. Ex.A6 is a certified copy of the plaint filed in Original Suit No.784 of 1983. It is an admitted fact that the present defendant as plaintiff has instituted the said suit against the present plaintiff wherein it has been specifically prayed to grant a permanent injunction, restraining the defendant, its men, agents, etc., from interfering with the plaintiff's possession of making advertisements in the suit property. In the Original Suit No.784 of 1983 an application under Order 39 Rule 1 & 2 of Civil Procedure Code, has been filed by the plaintiff therein and in the said application, an order of ad-interim injunction has been passed against the defendant therein and since counter has not been filed, the order of ad-interim injunction has been made absolute till the disposal of the suit. The plaintiff found in Original Suit No.784 of 1983 has not claimed any relief to the effect that the defendant therein (plaintiff in the present suit) should collect the arrears of bid amount or the plaintiff is not entitled to claim the same. It is a suit for permanent injunction, restraining the defendant therein, its men and agents, from interfering with the rights of the plaintiff to make advertisements. Therefore, there is no interdiction or embargo against the present plaintiff to claim arrears of auction amount. In short, the pendency of the original Suit No.784 of 1983 is not a bar to claim arrears of bid amount. The specific case of the defendant herein is that the limitation starts from 18.04.1983, the date on which the right of the defendant has been canceled by the plaintiff.

12. At this juncture, the Court has to analyse Ex.B8. In Ex.B8, it has been clearly stated by the plaintiff that since the defendant has failed to execute a registered agreement and since he has failed to pay kist for three months, license granted in his favour has been cancelled. It has already been stated that the present suit has been instituted only to recover the arrears of bid

amount. Therefore, the relevant Article applies to the present case is Article 55 of the Limitation Act. It reads like thus;

55. For compensation for the breach of any contract, express or implied not herein specially provided for

Three years

When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.

13. From the close reading of the said Article, it reveals that for claiming compensation for breach of any contract, express or implied the period of limitation is three years from the date on which the concerned contract is broken.

14. In the instant case, as per Ex.B8, the contract created in favour of the defendant has been terminated on 18.04.1983 and therefore, the period of limitation starts from 18.04.1983 and the present suit ought to have been filed on or before 17.04.1986. Admittedly, the present suit has been instituted on 05.08.1987. Therefore, the present suit is clearly barred by limitation.

15. In the cause of action, it has been stated that the defendant has made payments till 24.10.1983, but to prove the same no such document has been filed on the side of the plaintiff. In fact, on the side of the defendant Exs.B4 to B6 have been filed. Ex.B6 has come into existence on 30.03.1983. Therefore, on the basis of particulars of payments given in the cause of action also, the suit is barred by limitation.

16. Even though the plaintiff has cancelled the license granted in favour of the defendant on 18.04.1983 by virtue of Ex.B8, the plaintiff has schemingly suppressed the factum of termination of license in the plaint. In fact, the plaintiff has not stated in the plaint as to how the present suit is not barred by limitation. The plaintiff has taken umbrage only on the basis of payment alleged to have been made on 24.10.1983 by the defendant, but the same has also not been proved by way of adducing documentary evidence.

17. As adverted to earlier, the limitation starts from 18.04.1983 and therefore, the suit ought to have been filed on 17.04.1986. Therefore, the contention urged on the side of the plaintiff with regard to limitation is totally erroneous and the same can be eschewed.

18. The learned counsel appearing for the appellant/defendant in A.S.No.263 of 1995 has drawn the attention of the Court to the decision reported in AIR 2003 Kerala 201 (M/s Delta Foundation and Constructions, Kochi and others Vs. Kerala State Construction, Corporation Ltd., Ernakulam) wherein it has been held that the limitation starts when contract terminated as provided under Article 55 of the Limitation Act.

19. The learned counsel appearing for the appellant/defendant in Appeal Suit No.263 of 1995 has also drawn the attention of the Court to the decision reported in 2005 (2) CTC 516 (Tamil Nadu Civil Supplies Corporation Limited, through Senior Regional Manager, Madras 600 010 Vs. M/s. Food Fats Fertilizers Limited, No.759, Fountain Plaza, 7th Floor, Pantheon Road, Egmore, Madras - 600 008) wherein the Division Bench of this Court has held that in a suit for compensation for a breach of contract, limitation starts running from date when breach in respect of which suit is instituted occurs or where breach is continuing, when it ceases.

20. In the instant case, even at the risk of jarring repetition, the Court would like to point out that the license granted in favour of the defendant has been terminated by virtue of Ex.B8 on 18.04.1983 and as per the decisions referred to supra, the limitation for the present suit starts from the said date and therefore, the present suit should be filed on or before 17.04.1986, but admittedly the present suit has been instituted on 05.08.1987. Therefore, it is needless to say that the present suit is clearly barred by limitation. Since the present suit is clearly barred by limitation, the plaintiff is not entitled to get the relief sought for in the plaint.

21. In view of the foregoing narration of both the factual and legal premise, this Court has found a considerable force in the argument advanced by the learned counsel appearing for the appellant/defendant in A.S.No.263 of 1995 and no such force is in existence in the argument advanced by the learned counsel appearing for the appellant/plaintiff in A.S.No.210 of 1996.

22. In fine, the Appeal Suit No.263 of 1995 is allowed without costs. The judgment and decree rendered in Original Suit No.228 of 1986 by the 3rd Additional Subordinate Court, Tiruchirapalli, are set aside and the suit is dismissed without costs.

23. In fine, the Appeal Suit No.210 of 1996 is dismissed without costs.

To.

The 3rd Addl. Subordinate Court,

Tiruchirapalli


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.