M/s Trans Medica (India) Limited v. R. Palanisubramanian

In the High Court of Judicature at MadrasDated: 28.08.2009Coram:The Honourable Mr.Justice M.CHOCKALINGAMandThe Honourable Mr.Justice R.SUBBIAHOriginal Side Appeal Nos.42 and 43 of 2009and M.P.Nos.1 and 1 of 20091. M/s.Trans Medica (India) Limited, (Earlier known as Tans Plastic (India) Limited), rep.herein by its Managing Director, T.A.Rathod, No.17, Tiger Varadhacari 1st Street, Kalakshetra Colony, BesantNagar, Chennai-600 090.2. R.Ramasubramanian ..Appellants in both OSAs. Defendants..vs..R.Palanisubramanian ..Respondent in both OSAs. PlaintiffOriginal Side Appeals filed under Clause 15 of the LettersPatent read with Order XXXVI Rule 1 of Original Side Rules, againstthe common order dated 06.02.2009 passed by a learned single Judge ofthis Court in Application Nos.936 and 937 of 2008 in c.S.No.811 of2008 respectively.For Appellants : Mr.T.V.Ramanujam, Senior Counsel for Mr.C.Uma ShankarFor Respondent : Mr.AR.L.Sundaresan, Senior Counsel for Mr.P.Mohanraj COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.,) This judgment shall govern both these appeals, which havearisen from a common order dated 06.02.2009 of a learned single Judgeof this Court made in Original Application Nos.936 and 937 of 2008 https://hcservices.ecourts.gov.in/hcservices/ respectively, whereby the applications seeking for an interiminjunction restraining the defendants from interfering with thepeaceful possession and enjoyment of the suit property by theapplicant/plaintiff and also from alienating the suit property tothird parties, were allowed. 2. The court heard the learned senior counsel for theappellants as well as the respondent. 3. The respondent herein is the plaintiff. He filed a suit fora declaration that the sale deed executed by the 1st defendantcompany in favour of the 2nd defendant on 11.04.2008 in respect of theplaint schedule property as void, non est in law and illegal sincethe suit property was the subject matter of prior agreement of saledated 29.09.2005 entered into between the plaintiff and the 1stdefendant and also seeking for a relief of specific performance toexecute a sale deed on the strength of the agreement of sale dated29.09.2005 entered into between the plaintiff and the 1st defendant.Pending suit, the said applications were taken up by the plaintiffwith the following averments:The applicant/plaintiff entered into an agreement of sale on29.09.2005 with the 1st respondent/1st defendant, who is the owner offlat bearing door No.20, Vasan Street, T.Nagar, Madras. The saleconsideration was fixed at Rs.12 lakhs and a sum of Rs.10 lakhs waspaid as advance by the plaintiff to the 1st defendant, enabling him toobtain the original sale deeds of the suit property from the IndianOverseas Bank for clearing the subsisting equitable mortgage createdby him already. The 1st defendant also put the applicant/plaintiff inpossession of the suit property. The agreement also permitted theplaintiff either to use the property for his own purpose or to leaseout the same to any third party. In July, 2007, the plaintiff leasedout the property to one Dr.V.Ramakrishnan and has been put inpossession and enjoyment of the property as a tenant. An attempt wasmade on 07.05.2008 to dispossess him. On enquiry, the plaintiff cameto know that the 1st defendant/1st respondent sold the property tothe 2nd respondent on 11.04.2008 suppressing the earlier agreement.The plaintiff has already paid 85% of the sale consideration and heis also ready and willing to pay the balance of the saleconsideration. Apart from that, the 1st and 2nd defendants areattempting to dispossess the tenant inducted by the plaintiff on thestrength of the agreement and also to alienate the property to thirdparties. Under such circumstances, the said applications have beenfiled before the Court. 4. The applications were contested by the defendants statingthat the 1st defendant/1st respondent was the Public Limited Companyand was the owner of the suit property. It was in absolute possession https://hcservices.ecourts.gov.in/hcservices/ and enjoyment of the same till 11.04.2008, when the same was sold tothe 2nd defendant/2nd respondent and on the said date, the 1strespondent also delivered vacant possession of the same to the 2ndrespondent. No agreement for sale was actually entered into betweenthe plaintiff and the 1st defendant either on 29.09.2005 or thepossession was actually given or no advance amount was received, asaverred in the plaint. Then, the question of dispossession does notarise at all. The documents are fabricated and already, the suit inO.S.3332 of 2008 was filed before the XI Assistant Judge, City CivilCourt, Madras, by V.Ramakrishnan, claiming to be the tenant inrespect of the suit property and I.A.8107 2008 seeking interiminjunction was dismissed on 16.06.2008, after hearing the submissionsmade by both parties. Under such circumstances, both the applicationswere liable to be dismissed.5. The learned single Judge, on consideration of the materials,took a view that it is a fit case, where prima facie case has beenmade out, and granted the order of interim injunction. Aggrieved overthe same, the defendants broughtforth the present appeals beforethis Court.6. Advancing the arguments on behalf of the appellants,Mr.T.V.Ramanujam, the learned Senior Counsel, would submit that inthe instant case, admittedly, the suit property belonged to the 1stdefendant; that the property has been sold in favour of the 2nddefendant by a registered sale deed and the 2nd defendant was also putin possession of the property; that while the matter stood thus, onthe strength of the forged documents, the plaintiff has approachedthe Court and sought for two reliefs, one for to declare the saledeed between the 1st defendant and 2nd defendant as void and illegaland also another for the specific performance on the strength of theagreement for sale i.e.alleged to have been entered into between theplaintiff and the 1st defendant on 29.09.2005; that pending suit, thetwo applications were filed, one for interim injunction not tointerfere with the possession and enjoyment of the tenant and theother for interim injunction restraining the defendants fromalienating the suit property; that the trial Judge has granted thereliefs, without appreciating the factual position and in the instantcase, it was the specific plea that was made by theappellants/defendants that the sale agreement relied on by theplaintiff dated 29.09.2005 was a forged document and also it wasspecifically denied the averments that the sale consideration wasRs.12 lakhs; out of which Rs.10 lakhs was already paid and that wasnot to the Managing Director, who, according to the plaintiff, signedthe alleged agreement, but to one Mr.Srinivasan. https://hcservices.ecourts.gov.in/hcservices/

7. Added further the learned senior counsel that the propertybelonged to the Public Limited Company and it was not the property ofthe Managing Director and hence, the alleged agreement entered into,would not be binding upon. Added further the learned senior counselthat in the instant case, even the part of the consideration of Rs.10lakhs was not paid to the Managing Director but to one Srinivasan,who has actually handed over the agreement; that it is a case, wherethe tenant has filed a suit in O.S.3332 of 2008 on the file of XIAssistant Judge, City Civil Court, Madras and also filed an interiminjunction application and the same was dismissed on 16.06.2008;that the instant suit was filed on 20th August 2008 thereafter, whichwould be clearly indicated that one suit was filed by the allegedtenant before the trial court and while the application wasdismissed, the plaintiff has come forward with the suit containingfalse averments as to snatch the property, which originally belongedto the 1st defendant company; that it is also to be pointed out thatthe 1st defendant sold the property to the 2nd defendant on 11.04.2008and thus, a perusal of the document, namely, the alleged agreementdated 29.09.2005, would go to show that it was a forged andfabricated one; that under such circumstances, no prima facie casehas been made out for granting injunction, but the trial Judge hastaken an erroneous view and hence, the order has got to be set aside.8. The Court heard the learned senior counsel for therespondent, who reiterated the contentions, which were putforthbefore the learned single Judge, in his sincere attempt of sustainingthe order.9. The Court has paid its anxious consideration on thesubmissions made by the learned senior counsel on either side and hasconsidered all the available materials.10. Admittedly the property, which is in question, wasoriginally belonged to the 1st defendant Public Limited Company andthe alleged agreement was entered into on 29.09.2005 i.e. between theManaging Director of the Company and the plaintiff. A perusal of thedocument would clearly indicate that the sale consideration was Rs.12lakhs and out of which, Rs.10 lakhs was paid on that date. Theaverments in the plaint would go to show that Rs.10 lakhs was paidnot to the Managing Director, viz., Rathod, but it was paid only toMr.Srinivasan, who also handed over the agreement in question and itwas urged by the appellants before the trial court and also equallybefore this Court that the document was a forged and fabricated one.Apart from the above, according to the plaintiff, the suit propertywas leased out to one Ramakrishnan, who is in possession of theproperty and further, he has also filed a suit in O.S.3332 of 2009 https://hcservices.ecourts.gov.in/hcservices/ before the XI Assistant Judge, City Civil Court, Madras, seeking therelief of permanent injunction, restraining the defendants frominterfering with his possession. At this juncture, it is pertinent topoint out that the suit came to be filed after the sale was made bythe 1st defendant in favour of the 2nd defendant on 11.04.2008,whereas the said Ramakrishnan filed the suit on 16.06.2008. Now, atthis juncture, it is relevant to point out that the injunctionapplication filed by the tenant, pending suit, was dismissed onmerits and thus, if so, the plaintiff, in fairness, should havebrought to the notice of the learned single Judge that a suit wasalready filed by the alleged tenant before the City Civil Court andalso the dismissal of the injunction application; but those factswere actually not mentioned in the plaint and also in the injunctionapplication. Thus, the Court is of the considered opinion, in a caselike this, when the defendants came before the specific plea that itwas a forged document and actually they were in possession, theCourt should have considered the same. Apart from the above, areading of the plaint would actually indicate that the plaintiff hadsought for permanent injunction that the defendants should notinterfere with the possession of not the plaintiff, but of thetenant, who has already filed a suit before the City Civil Court andthe application for interim injunction has also been dismissed. Undersuch circumstances, the Court is unable to notice any prima faciecase to grant an injunction either not to interfere with thepossession or not to alienate the suit property further. Hence, theCourt is of the considered opinion that the orders have been passederroneously and they have got to be set aside.11. At this juncture, the learned senior counsel for therespondent/plaintiff brought to the notice of the Court that sincethe matter is pending before this Court, where all the questions havegot to be decided, further alienation by the 2nd defendant should berestrained. In answer, the learned senior counsel for the 2nddefendant brought to the notice of the Court that he wants to makeconstruction in the property, for which purpose, he has to makeborrowal. Under such circumstances, the Court is of the opinion thatthe 2nd defendant has to be restrained from making sale of theproperty in question, pending disposal of the suit.Accordingly, both the appeals are disposed of. No costs.Consequently, connected M.Ps.are closed.When the suit has got tobe disposed, the trial Judge has to take a decision on merits of thematter and in accordance with law, uninfluenced by any of theobservations made above. In the interest of both parties and in theinterest of justice and also in order to avoid delay, it is fit andproper that the suit pending before the City Civil Court in O.S.3332of 2008 has got to be transferred, to be tried jointly along with thepresent suit. Accordingly, O.S.No.3332 of 2008 pending on the file of https://hcservices.ecourts.gov.in/hcservices/ XI Assistant Judge, City Civil Court, Madras, is ordered to betransferred to this Court and to be tried along with C.S.No.811 of2008. gl Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The sub Assistant Registrar Original side High Court, Madras.2. The Sub Assistant Registrar, Judicial Department, High Court, Madras.3. The Section Officer V.R. Section High Court Madras.4. The Registrar City Civil Court Madras.5. The XI Assistant Judge city civil Court Madras.+ 1 cc to Mr. C. Uma Shankar, Advocate, SR.42896+ 1 cc to Mr. P. Mohanraj Advocate SR.42825.Common Judgment in O.S.A. Nos.42and 43 of 2009BV(CO)EU 14.09.2009.