Madras High Court
N.Prabu Raj vs M/S.Poineer Software Park Pvt. ... on 15 June, 2022
O.S.A.No.90 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM
THE HON'BLE Mr.JUSTICE M.DURAISWAMY
AND
THE HON'BLE Mr.JUSTICE SUNDER MOHAN
O.S.A.No. 90 of 2022
and C.M.P.No.6657 of 2022
1. N.Prabu Raj
2. N.Swarnalatha
3. R.Sugunavadhi
4. Vijayakumari
... Appellants
Versus
1.M/s.Poineer Software Park Pvt. Ltd.,
Rep by its Director S.Kakumanu
Having its Office at New No.132,
Old No.33, Nelson Manickam Road,
Aminjikarai, Chennai-600 029
2. S.Vidhyalakshmi
R.Nithiyanandan (deceased)
3. R.Sivanandan
R.Yogarani (deceased)
4. C.Saravanan
5. S.Moses
6. Ve.Al.Sinna Alagappan ... Respondents
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1/11
O.S.A.No.90 of 2022
PRAYER: Original side Appeals filed under Order XXXVI Rule 9 of
Original Side Rules 8 read with Clause 15 of the Letters Patent Appeal
challenging the order dated 03.01.2022 passed by the learned Judge in
A.No.3861 of 2019 in C.S.No.163 of 2010 on the file of this Court.
For Appellants ... Mr.V.Radhakrishnan
Senior Counsel
for Mr.M.Vijay Anand
For Respondents ...Mr.P.S.Raman (Senior Counsel)
for Mr.Abishek Jenasenan
JUDGEMENT
Judgment was delivered by SUNDER MOHAN,J.
The Original Side Appeal has been filed to set aside the fair and
decreetal order dated 03.01.2022 passed by the Learned Single Judge in
Application No.3861 of 2019 in C.S.No.163 of 2010. The appellants filed
the said applications praying to set aside the Compromise Decree dated
08.12.2016 passed against the appellants/defendants 1, 2, 7 and 11 in
C.S.No.163 of 2010 which was passed in terms of Memorandum of
Compromise dated 08.12.2016. Originally the suit in C.S.No.163 of 2010
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was filed by the first respondent herein, praying for the following reliefs:
(a) To declare the consent decree passed in
C.S.No.573 of 2006 has been vitiated by fraud
O.S.A.No.90 of 2022
collusion and non-est in law and not binding on the
plaintiff.
(b) And consequently declare the sale deed
dated 29.03.2007 by the Registrar of this Hon’ble
Court in favour of the 9th Defendant pursuant to the
decree in C.S.No.573/2006 as null and void.’’
2.During the pendency of the suit, one Moses the 9 th defendant in
the suit in C.S 163 of 2010, who is the Power of Attorney of the
Appellants, entered into the Memorandum of Understanding dated
20.02.2015 with the first respondent along with the 8th defendant,
Saravanan and one Appasamy Real Estate Ltd., Chennai who was not a
party to the suit. As per the terms of the said MOU, the first respondent
was liable to pay a sum of Rs.10,00,00,000/- (Rupees Ten Crore only) to the
9th defendant/ Moses, out of which, Rs.3,50,00,000/- (Rupees Three Crore
and Fifty lakhs only) was to be paid to them at the time of resolving
disputes with the appellants. The appellants claimed that in view of the said
compromise, they were made to believe that if consent decree is passed in
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C.S.No.163 of 2010, they would be paid a sum of Rs.3,50,00,000/- (Rupees
Three Crore and Fifty lakhs only) by the first respondent herein through the
9th defendant .
O.S.A.No.90 of 2022
3. Accordingly, the Appellants entered into a compromise and filed
a compromise memo dated 08.12.2016, by which, they agreed to pass a
compromise decree in C.S.No.163 of 2010 as against them. This Court
recorded the said memo of compromise and passed a Compromise Decree
on November 2016 decreeing the suit as prayed for. It is the case of the
appellants that though they had given consent to the decree pursuant to the
Memorandum of Understanding dated 20.02.2015 entered into between the
parties, no payments were made to them as per the MOU inspite of several
repeated demands and requests. They alleged that a fraud was played on
them and hence the consent decree is liable to be recalled.
4.The first respondent filed a counter in the said application and
contended that as per the MOU dated 20.02.2015, payments were due to
be paid only to the 8th and 9th defendants; that the appellants were not
parties to the MOU; and that there is no payment due to the 8 th and the 9th
defendant as per the MOU.
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5.The learned Single Judge dismissed the application on two
grounds:
(A) That there was no material on record to show
that the plaintiff/first respondent herein had
defrauded the appellants or the Judicial process.
O.S.A.No.90 of 2022
(B) That when substantial part of the MOU was
perfomed, it would be difficult for the Court to
recall a decree merely because certain amounts
payable were not paid.
6.Aggrieved by the order of the learned Single Judge, the appellants
have filed the above appeal.
7.Heard Mr. V.Radhakrishnan, Senior Counsel for Mr.Vijay
Anand, learned counsel for the petitioners and Mr.P.S.Raman, learned
Senior Counsel for Mr.Abishek Jenasenan, learned counsel for the first
respondent.
8.Mr.V.Radhakrishnan, the learned Senior counsel for the
appellants reiterated the submissions made before the learned Single Judge
that no money as per the MOU dated 20.12.2015 was paid to them and that
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the first respondent played fraud on the appellants and thereby made them
to give consent to the decree. The learned senior counsel for the appellants
also submitted that the application to set aside the consent decree was
maintainable since a separate suit to set aside the compromise decree was
barred in view of Order XXIII Rule 3A of CPC . In support of the said
submission, the learned senior counsel relied upon the decisions of the
O.S.A.No.90 of 2022
Hon’ble Supreme Court reported in 2022 SCC Online SC 165 [Sree Surya
Developers and Promoters Vs. N.Sailesh Prasad and Others] and (2021)
9 SCC 114 [ R.Janakiammal Vs. S.K.Kumarasamy ]
9. As regards the maintainability of the Application, the legal
position is very clear and there cannot be any dispute over that position that
an application is maintainable. Therefore, the only point involved in this
Appeal is as to whether the appellants were defrauded by the first
respondent and were made to submit to the decree pursuant to the fraud. A
reading of the compromise memo dated 08.12.2016 would show that though
there is a vague reference about a compromise entered into between 8th and
9th defendants in C.S.No.163 of 2010, the first respondent and one
Appasamy Real Estate Ltd., Chennai, we find no reference to any payments
that the plaintiff/first respondent were allegedly liable to make to the
Appellants. Secondly, the Memorandum of Understanding was not placed
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before the learned Judge, who passed the compromise decree and the
compromise decree was not based on the terms of the MOU dated
20.02.2015. Thirdly, the appellants were not parties to the MOU and the
first respondent had only agreed to pay the 9th defendant, viz., Moses, who
was the Power of Attorney Agent for the Appellants. The MOU was not
O.S.A.No.90 of 2022
entered in the names of the Appellants. Thus, there was no agreement
between the appellants and the plaintiff/first respondent herein. Fourthly,
the
9th defendant, viz., Moses, who was entitled to receive the payments from
the first respondent as per the MOU, had not challenged the consent decree
passed against him alleging that payments were not received by him. Thus,
it cannot be said that the first Respondent is liable to make payments to the
Appellants. If the Power of Attorney viz., the 9th defendant has not
rendered proper accounts, the Appellants, can only pursue legal action
against him.
10. The learned senior counsel for the Appellants submitted that
two other parties to the suit, who consented to the Compromise Decree,
were paid money in terms of the MOU.
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11.In our view that cannot be a ground to hold that the first
respondent /plaintiff is liable to make payments to the Appellants in terms
of the Compromise Decree or the MOU.
12.For the foregoing reasons, we hold that there is nothing to
suggest that the first Resondent/Plaintiff played fraud on the appellants
and that the consent decree was obtained by fraud. We are of the view
that
O.S.A.No.90 of 2022
there is no merit in this appeal. Hence, the Original Side Appeal stands
dismissed. No Costs. Consequently, the connected miscellaneous petition is
closed.
[M.D.J] [S.M.J]
15.06.2022
Index : Yes/No
Internet : Yes
Speaking/Non-Speaking orders
vsn
https://www.mhc.tn.gov.in/judis
O.S.A.No.90 of 2022
https://www.mhc.tn.gov.in/judis
O.S.A.No.90 of 2022
M.DURAISWAMY. J,
and
SUNDER MOHAN J,
vsn
https://www.mhc.tn.gov.in/judis
O.S.A.No. 90 of 2022
and C.M.P.No.6657 of 2022
15.06.2022
https://www.mhc.tn.gov.in/judis
