Madras High Court
Indian Oil Corporation vs The Tamil Nadu Civil Supplies on 26 July, 2021
S.A.No.455 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.455 of 2008
Indian Oil Corporation,
Rep. By its Chief Divisional Manager,
Marketing Division,
No.739, Anna Salai,
Chennai-600 018. ... Appellant
Vs.
1. The Tamil Nadu Civil Supplies
Corporation Ltd., Rep. By its
Senior Regional Manager,
Madras Region, 7, Conron Smith Road,
Gopalapuram,
Chennai-600 086.
D.Vaidyalingam (since deceased)
2. D.V.Rajasekharan
3. D.V.Shyam Sundar ...Respondents
PRAYER: Second Appeal filed under section 100 of the Civil Procedure
Code praying to set aside the judgment and decree dated 28.09.2006
made in A.S.No.36 of 2006 on the file of 2 nd Additional District and
Sessions Judge, City Civil Court, Chennai, confirming the judgment
and decree dated 28.07.2005 made in O.S.No.9171 of 1995 on the file
of the 1st Assistant Judge, City Civil Court, Chennai-104.
For Appellant : Mr. S.Udayakumar
1/8
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S.A.No.455 of 2008
For Respondents : Mr. K.Raghuraman for R1
R2 & R3 – set aside ex parte
JUDGEMENT
The second defendant is the appellant before this Court. The
facts which culminated in filing of the above Second Appeal are as
follows:
The parties are referred to in the same litigative status as before
the trial Court viz., I Additional City Civil Court, Chennai in
O.S.No.9171 of 1999.
2. The plaintiff had been appointed as the Dealer of the second
Defendant on 09.04.1991. On the date of taking possession of the
Petroleum Bunk at No.736, Poonamallee High Road, Aminjikarai,
Madras-600 029, there was already stock of petrol and petroleum
products to the value of Rs.54770.33. This amount was collected by
the second defendant from the plaintiff. In the course of running of the
business, the plaintiff had purchased a load of petroleum from the
second respondent and was keeping a stock of petroleum in the bunk.
All of a sudden, on 23.04.1991, one Vaidhyalingam, representing the
first defendant, sole proprietary concern, trespassed into the
petroleum bunk and forcibly took possession of the same along with
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S.A.No.455 of 2008
the help of unruly elements. The plaintiff would submit that when the
first defendant had taken unlawful possession, there was products to
the value of a sum of Rs.142762.56 in the bunk. The plaintiff had
immediately intimated the second defendant and also made several
police complaints. The possession of the bunk was taken on the basis
of an order passed in Tr.CMP.No.5724 of 1991 in O.S.No.6021 of
1997. Against this order, the second defendant filed SLP No.7601 of
1991 on the file of the Hon'ble Supreme Court. Though they had
obtained a stay of operation of the judgment in Tr.CMP. No.5724 of
1991, however, the first defendant continued to enjoy the petrol bunk.
Considering the loss that they had been put to, the plaintiff had filed a
suit directing the defendants to reimburse the sum of Rs.142762.56
together with interest at 18% p.a.
3. The first defendant had passed away and his children were
brought on record as defendants 3 and 4. However, the defendants 3
and 4 remained ex-exparte.
4. The second defendant had filed a written statement inter alia
contending that they were not liable to reimburse the plaintiff and it
was only the first defendant who had to make good the loss to the
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S.A.No.455 of 2008
plaintiff that the suit against the second defendant was misconceived.
They would further contend that they had advised the plaintiff to take
appropriate steps against the deceased first defendant and had made it
clear that it was their look out to collect the money from the first
defendant and that they were in no way liable for the act of omission
and commission by the first defendant.
5. The trial Court had framed issues and during trial, the plaintiff
examined himself as PW1 and marked exhibits A1 to A10 and on the
side of the second defendant, one witness was examined as DW1, who
was one of the representatives of the 2nd defendants and no
documents were marked on their side.
6. The trial Court decreed the suit and the said judgment and
decree was challenged by the second defendant in A.S.No.36 of 2006
on the file of the II Additional City Civil Court, Chennai. The appellate
Court also confirmed the judgment and decree of the trial Court and
dismissed the appeal. Challenging the same, the present Second
Appeal has been filed.
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S.A.No.455 of 2008
7. When the appeal came up for admission, the
respondent/plaintiff who was represented by counsel had agreed to
argue the matter. Therefore, the second appeal was posted for
arguments and ultimately it has been taken up for arguments today.
8. Mr.Udhayakumar appearing on behalf of the appellant would
submit that the outlet had been handed over to the plaintiff who had
thereafter purchased the products from the second defendant and it is
their look out to protect the premises and having failed to do so, they
cannot mulct the second defendant with their loss. Further, it is the
first defendant who has to make good the loss since they have
trespassed illegally and taken charge of the outlet. Therefore, the
finding of the courts below that the second defendant is liable to
reimburse the loss is without any basis. The said argument was stoutly
refuted by the learned counsel appearing for the plaintiff who would
state that the Courts below have analyzed the evidence available on
record in order to decree the suit filed by the plaintiff. The learned
counsel in addition to the above arguments would submit that if the
court is not inclined to allow the second appeal, the interest portion
may be reduced from 12% to 9%.
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S.A.No.455 of 2008
9. Heard the learned counsel and perused the records.
10. The petrol bunk was handed over to the plaintiff when legal
proceedings were pending between the second defendant and the first
defendant. Being fully aware about the same, the second defendant
had inducted the plaintiff into the petrol bunk. The first defendant
entered the premises only on the strength of the orders of this Court.
The second defendant has received the payments for the products both
from the plaintiff as well as the first defendant and the entire episode
of the takeover of the bunk only on account of the dispute between the
second defendant and the first defendant. The Courts below would
refer to the police protection that was sought by the second
respondent for the premises in question from 23.04.1991. However,
despite the above, the plaintiff had been forcibly removed from the
bunk and the products were taken over. Another interesting fact that
has been noticed by the appellate Court is that after the first defendant
had forcibly entered the bunk, the second defendant continued to
make supplies to the first defendant for a period of over a year.
Therefore, the second defendant having received their money cannot
deny the plaintiff of their dues. The courts below have rightly
concluded that the second defendant is liable to reimburse the
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S.A.No.455 of 2008
plaintiff. I do not find any substantial questions of law that merits
interference by this Court. However, considering the request of
Mr.Udayakumar, learned counsel appearing on behalf of the appellant
and taking into account the fact that the second defendant is a public
sector undertaking and the plaintiff is also a statutory body, the
interest is reduced from 12% to 9%. Only to that extent, the Second
Appeal is partly allowed and the judgment and decree in A.S.No.36 of
2006 of the II Additional City Civil Court, Chennai, is modified.
11. In the result, the Second Appeal is partly allowed. No order
as to costs.
26.07.2021
Index : Yes
kal
To
1.The II Additional District and
Sessions Judge, City Civil Court,
Chennai.
2.The 1st Assistant Judge, City Civil Court, Chennai-104.
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S.A.No.455 of 2008
P.T.ASHA, J
kal
S.A.No.455 of 2008
26.07.2021
https://www.mhc.tn.gov.in/judis/
