Madras High Court
M/S.Trent Limited vs M/S.Dior Properties And ... on 23 February, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.Nos.264 & 265 of 2017
and
C.M.P.Nos.1167 & 1168 of 2017
M/s.Trent Limited
Trent House, C-60, G-Block,
Next to City Bank,
Bandrakurla Complex, Bandra East,
Mumbai.
Rep. by its Authorized Signatory
Krutika Swamy
... Petitioner / Petitioner / Defendant (in both CRPs)
Vs.
1.M/s.Dior Properties and Investments Private Limited
No.111/2, Sterling Road,
No.2C, Easdale Enclave,
Nungambakkam,
Chennai – 600 034.
Represented by its Director Mr.Vikram Nataraj
... Respondent/Respondent/Plaintiff
2.Natraj Ramaiah
... Respondent / Respondent / Proposed Third Party
(in both CRPs)
https://www.mhc.tn.gov.in/judis
Prayer in CRP (PD) No.264 of 2017 : Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decretal
order dated 05.11.2016 in I.A.No.197 of 2015 in O.S.No.4238 of 2015
passed by the XVIII Additional City Civil Court, Chennai.
Prayer in CRP (PD) No.265 of 2017 : Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decretal
order dated 05.11.2016 in I.A.No.5 of 2016 in O.S.No.4237 of 2015
passed by the XVIII Additional City Civil Court, Chennai.
For Petitioners .. Mr.P.Giridharan (in both CRPs)
For R1 .. Mr.Vinod Kumar (in both CRPs)
For R2 .. Mr.Ramaswamy Meyyappan
for Rajkumar Jhabakh
(in both CRPs)
COMMON ORDER
Though both the Civil Revision Petitions arise from orders passed
in interlocutory applications in two separate suits, since arguments were
advanced in common by the learned counsels, it would only be
appropriate that a common order is passed in both the Civil Revision
Petitions.
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2.It is also to be noted that the parties at lis are also the same and
in both the suits, also sue in the same capacity. The interlocutory
applications have also been filed by the defendants seeking practically
the same relief and having suffered an order of dismissal in the said
application, the defendant in both the suits who is actually the same
Limited Company has now come before this Court by way of these two
Revision Petitions.
3.CRP.No.264 of 2017 arises out of an order in IA.No.197 of 2015
in O.S.No.4238 of 2015 which suit is pending on the file of the XVIII
Additional City Civil Court, Chennai. CRP.No.265 of 2017 had been
filed questioning the order in I.A.No.5 of 2016 in O.S.No.4237 of 2015
which suit is also pending on the file of the XVIII Additional City Civil
Court.
4.O.S.No.4238 of 2015 had been filed by the respondent /
M/s.Dior Properties and Investments Private Limited against the revision
petitioner herein M/s.Trent Limited, seeking a judgment and decree for a
sum of Rs.24,79,444/- together with interest, towards, alleged arrears of
rent payable from September 2013 and thereafter, for maintenance
https://www.mhc.tn.gov.in/judis
charges from June 2014. O.S.No.4237 of 2015 had been filed by the
same plaintiff against the same defendant seeking a judgment and decree
for payment of a sum of Rs.24,33,500/- together with interest towards
costs incurred by the plaintiff towards repair and restoration work on the
premises which had been leased out to the defendant. Both the suits
relate to the premises which had been leased out and which is at
basement and ground floor of the building “Apex Plaza”, No.3,
Nungambakkam High Road, Nungambakkam, Chennai.
5.Written statements have been filed by the revision petitioners
and if issues are framed by the learned Trial Judge, the suit can be taken
for trial.
6.At that stage, the revision petitioner / defendant filed I.A.No.197
of 2015 in O.S.No.4238 of 2015 and I.A.No.5 of 2016 in O.S.No.4237 of
2015 and both the applications had been filed taking advantage of Order
I Rule 10(2) of CPC seeking to implead a third party as a further
defendant in the two suits.
https://www.mhc.tn.gov.in/judis
7.A peep into the background facts reveals that the original lease
deed had been entered into by the plaintiff in the suit with the partnership
firm / M/s.Landmark. Quite interestingly, the lessor which was the
plaintiff was a company registered under the Companies Act, 1956 was
represented by its Managing Director Nataraj Ramaiah and the lessee /
Landmark, Partnership Firm was represented by its partner Hemalatha
Ramaiah / wife of the representative / Managing Director of the lessor.
8.Thereafter, the lessee / partnership firm Landmark under went
metamorphosis. It was converted into a further partnership firm by
bringing in other partners together and then by an order of the Bombay
High Court, was converted to a Private Limited Company. That Private
Limited Company is the revision petitioner herein / defendant in the suit.
9.The lease continued and on termination the leased out premises
was handed over back to the lessor. The lessor was not satisfied in taking
back the possession and had instituted two suits, one for recovery of
rental arrears and another one for the expenses incurred in making the
aforesaid premises once again marketable and in a position to be put to
commercial use. In the said two suits, the revision petitioner as aforesaid
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filed applications under Order I Rule 10(2) of CPC seeking to bring on
record another defendant.
10.It must be kept in mind that the said application was not filed
by the plaintiff, but by the defendant. It is normally construed that the
plaintiff as the dominant litus has the option to chose against whom the
suit should be filed with respect to the issues raised.
11.If the plaintiff, had not joined a necessary party, then the
consequences of non-joinder would be fatal to the suit. These are
provision which are in built in the Civil Code of Procedure. The mis-
joinder of party may not be fatal. Therefore, it is generally for the
plaintiff to decide the parties against whom the relief sought in the plaint
can be claimed.
12.In the instant case, the plaintiff in the two suits / respondent
herein had taken a conscious decision to implead, the revision petitioner
alone as a sole defendant in the suit. However, taking into consideration
the fact that when the lease was originally entered, the said Natraj
Ramaiah represented the lessor / respondent herein / plaintiff, in his
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capacity as Managing Director and later there were so many
transformation, which took place over the lessee / revision petitioner, the
revision petitioner filed the aforesaid application to implead the said
Natraj Ramaiah as a party defendant in the two suits. The two
applications in the two suits came to be rejected by the learned Trial
Judge necessitating the filing of the present revision petitions.
13.Heard arguments advanced.
14.It is the contention of Mr.P.Giridharan, learned counsel for the
revision petitioner that the presence of Natraj Ramaiah would be
absolutely necessary to decide the issues in the suit. One of the primary
issue to be decided in O.S.No.4238 of 2015 is whether there are rental
arrears due and payable by the revision petitioner. The primary issue to
be decided in O.S.No.4237 of 2015 would be whether when the premises
was handed back, it was in a habitable condition and whether further
expenditure were incurred by the plaintiff in the suit, to put the premises
for commercial use.
https://www.mhc.tn.gov.in/judis
15.But these issues are further widened by Mr.P.Giridharan,
learned counsel who stated that Natraj Ramaiah who is sought to be
impleaded was the Managing Director and as Director of the Private
Limited Company, having entered into a commercial transaction, which
commercial transaction is now put to test in both suits, it would be
appropriate that as a necessary party he is impleaded to answer the
various allegations made by the plaintiff.
16.It was under these circumstances, that applications under
Order I Rule 10(2) CPC was filed by the defendant claiming that though
the plaintiff was the dominant litus, still to decide the issues in their
proper perspective and to examine the role of Natraj Ramaiah in all these
transactions namely, the conditions with respect to the lease, the rental
arrears and damages and also with respect to his individual role as
Director / Managing Director, he is a necessary and proper party in the
two suits.
17.The learned Trial Judge had taken a view that the parties can
very well call him as witness and thereafter refused to take into account
the provisions under Sections 297 and 300 of the Companies Act, 1956.
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18.It was insisted by Mr.P.Giridharan, that if a holistic view is
taken in relation to the aforementioned provisions under the Companies
Act, then it would be evident that Natraj Ramaiah would be a necessary
party to the suits and he should be added as a defendant and that issues
raised in the suits can be decided only when he is present as a litigant in
the two suits.
19.In this connection, Mr.P.Giridharan while presenting a series of
judgments, placed specific reliance only on 2007 (2) CTC 73 : 2007-2-
LW810, (2006) 4 MLJ 593, S.Krishnan v. Rathinavel Naicker and
Others, wherein, a learned Single Judge of this Court
(V.Ramasubramanian, J. as his Lordship then) while considering a
application under Order I Rule 10(2) CPC had laid the guidelines to be
examined to determine whether the party who is sought to be impleaded
should actually be impleaded as a party to the lis.
“16.A party to a ligation is not entitled to use
the provisions of Order I, Rule 10(2), CPC to
implead a person, just for the purpose of eliciting a
statement from him, in whatever form, so as to make
use of the same as a piece of evidence. As observed
by this Court in Somasundaram Chettiyar and Ors.
v. Balasubramanian MANU/TN/0121/1998 : (1998)
IIMLJ 562, a person does not become a necessary
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party merely because he has some evidence relevant
to the case on hand. A necessary witness is different
from a necessary party.
17.In a nut shell, the tests to be applied for
determining the right of a party to implead another,
in a pending suit or other proceeding, may be
crystallized into the following categories-
(a)If without his presence no effective and
complete adjudication could be made;
(b)If his presence is necessary for a complete
and effectual adjudication of the dispute though no
relief is claimed against him;
(c)If there is a cause of action against him;
(d)If the relief sought in the suit or other
proceedings is likely to be made binding on him;
(e)If the ultimate outcome of the proceedings
is likely affect him adversely;
(f)If his role is really that of a 'necessary
witness' but is sought to be camouflaged as a
'necessary party';”
20.It is insisted by Mr.P.Giridharan, learned counsel, that Natraj
Ramaiah qualifies the first three tests above whereby, without his
presence no effective and complete adjudication could be made and his
presence is required for effective adjudication and that actually the
plaintiff has a cause of action as against him also.
https://www.mhc.tn.gov.in/judis
21.I have carefully considered the arguments advanced.
22.It must be kept in mind, however, that the revision petitioner /
defendant is a Limited Company, which can be independently sued and
can also sue. It has a juridical identity and presence. It is that company,
which is now sought to be proceeded against by the respondent /
plaintiff. The company is answerable to the claims in the two suits and
the accounts of the company would reflect whether rents have been paid.
If further there are any damages to be paid to the plaintiff as sought in
O.S.No.4237 of 2015, then the assets of the company alone will be
proceeded by the respondent / plaintiff in the suits. It is not the personal
effects of the said Natraj Ramaiah which can be proceeded against by the
respondent / plaintiff, if at all a decree is passed in either one of the two
suits. He can reasonably plea to delink himself from the activities of the
revision petitioner / defendant / company and claim that it is the company
which is answerable to the claims of the respondent / plaintiff.
23.Therefore, it is clear that he can and does indeed stand apart
from the company. He could be even on date a Director of the company,
but still it is the revision petitioner / limited company / defendant which
is answerable to the claims of the plaintiff.
https://www.mhc.tn.gov.in/judis
24.Widening the scope of the suits by bringing him as a defendant
would not be of any advantage. He can always be summoned as a
witness. If summons are issued from a competent Court, then a duty is
cast on the individual to whom such summons are issued to answer such
summons. The scope of the Code of Civil Procedure is wide enough to
ensure that any individual to whom summons are served calling upon
him to adduce evidence does indeed adduces evidence in the Court.
25.It must also be kept in mind, even though it is not a deciding
factor, that though the lessor/ respondent/ plaintiff M/s.Dior Properties
and Investments Private Limited, at the time when the lease entered into,
was represented by the said individual Natraj Ramaiah in his capacity as
Managing Director, now the suit had been verified by his own son, who
now claims to be the Managing Director.
26.Therefore, the dual role which will have to be performed by
Natraj Ramaiah will also have to assessed. He cannot represent the
lessor/plaintiff and be impleaded as defendant. It would only be
appropriate that he stands apart and adduces evidence if summoned.
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27.The learned Trial Judge had also examined the provisions
under Sections 297 and 300 of the Companies Act, 1956 and stated that
the said provisions speak only about the duty of a Director.
28.I am not prepared to interfere with the findings of the learned
Trial Judge of the Court below and I would confirm the said orders.
29.At any point of time, an option is always open, either to the
revision petitioner / defendant or the respondent / plaintiff, if they feel
that any aspect has to be clarified by way of evidence from Nataraj
Ramaiah, then summons can always be issued, calling upon him to
appear before the Court to give evidence.
30.I would therefore confirm the order in I.A.No.197 of 2015 in
O.S.No.4238 of 2015 and I.A.No.5 of 2016 in O.S.No.4237 of 2915
dated 05.11.2016 passed by the XVIII Additional Judge, City Civil Court
Chennai.
31.Accordingly, the Civil Revision Petitions stands dismissed. No
order as to costs. Consequently, the connected Civil Miscellaneous
Petitions are closed.
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32.If the suit proceeds in its normal way namely, trial by
examining of witness without any obstruction or stuttering or
meandering around owing to filing of interlocutory applications, then an
obligation is placed on the XVIII Additional Judge, City Civil Court
Chennai to dispose of both the suits on or before 31.12.2022.
23.02.2022
Internet:Yes/No
Index:Yes/No
smv
To
The XVIII Additional City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
smv
C.R.P.PD.Nos.264 & 265 of 2017
and
C.M.P.Nos.1167 & 1168 of 2017
23.02.2022
https://www.mhc.tn.gov.in/judis
