Madras High Court
The General Manager vs N.Rajkumar on 29 November, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.A.(MD)No.982 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD)No.982 of 2022
and
C.M.P.(MD)No.7903 of 2022
The General Manager,
Tamil Nadu Newsprint and Papers Limited,
Kagithapuram, Karur,
Karur District. ... Appellant
Vs.
1.N.Rajkumar
2.Umesh Shipping Services Private Ltd.,
Rep., By Director,
N.Rajkumar,
S/o.K.Nambiraj,
No.79, Bryant Nagar,
12th Street, Tuticorin-8.
3.The Inspector of Police,
SIPCOT Police Station,
Tuticorin. ...Respondents
PRAYER: Appeal filed under Clause 15 of Letters patent, against the order
dated 20.07.2022 passed by this Court in W.P.(MD)No.12073 of 2012.
1/7
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.982 of 2018
For Appellant : Mr.ARL.Sundaresan
Senior Counsel
for Mr.M.P.Senthil
For R1 & R2 : Mr.Hari Radhakrishnan
For R3 : Mr.Veeranthiran
Government Advocate
JUDGMENT
(Judgment of the Court was delivered by V.LAKSHMINARAYANAN, J.)
Two contracts had been entered into by the appellant. The first contract
was with an entity by name M/s.R.Flower. The purpose of the contract was to
store imported bleached hard wood sulphate pulp in the godown belonging to the
said entity. Unfortunately, there occurred a theft by which out of 20,803 pulps,
420 pulps went missing. The reason that has been given is that the theft had
occurred in the said godown, which obviously is beyond the control of R.Flower.
2.The appellant also entered into an agreement with one M/s.Umesh
Shipping Services, which was represented by its Director N.Rajkumar. It is
pertinent to point out that M/s.R.Flower belongs to the wife of N.Rajkumar. For
the loss, which had occasioned to an extent of 420 pulps, Tamil Nadu Newsprint
https://www.mhc.tn.gov.in/judis
and Papers Limited (in short 'TNPL) decided to withhold the amount of Rs.
29,36,011/- from the payments payable to M/s.Umesh Shipping Services Pvt.Ltd.,
by the minutes of the meeting dated 24.08.2012. It was agreed by N.Rajkumar
that the loss, which occasioned in M/s.R.Flower's godown was due to the theft and
for that loss, the appellant can recover the same from the pending bills of
M/s.Umesh Shipping Services Private Ltd., which is a sister concern of
M/s.R.Flower. In the minutes, it is also recorded that N.Rajkumar had requested
TNPL for return of the amount, which had been withheld, in case if he is able to
replace the material equivalent in quantity and quality of the above shortfall
material.
3.After having agreed to the said minutes of the meeting, the writ
petition came to be filed before this Court in W.P.(MD)No.12073 of 2012
challenging the minutes. The prayer in the writ petition was for a writ of
certiorari to quash the minutes dated 24.08.2012 and to direct the release of the
aforesaid amount of Rs.29,36,011/-.
4.The learned Single Judge held that M/s.R.Flower and M/s.Umesh
Shipping Services Private Limited are different entities. He went on to hold that
https://www.mhc.tn.gov.in/judis
the loss caused to the appellant due to the theft in M/s.R.Flower cannot be
recovered from M/s.Umesh Shipping Services Private Limited and consequently,
quashed the minutes of meeting and allowed the writ petition. Challenging the
same, the present writ appeal has been filed.
5.We have heard the learned counsel appearing on either side and
perused the materials placed on record.
6.The parties reiterated their contentions as stated before the learned
Single Judge. The point to be considered in this appeal is whether the writ petition
challenging the minutes of the meeting and seeking recovery of money is
maintainable.
7.The aforesaid facts are not disputed. There are two separate contracts.
One contract is with M/s.R.Flower and another contract is with M/s.Umesh
Shipping Services Private Limited. The loss was not due to the act of
M/s.R.Flower, but due to the act of theft. N.Rajkumar had agreed to the minutes
of the meeting dated 24.08.2012 to adjust the loss with the pending bills of
M/s.Umesh Shipping Services Private Limited.
https://www.mhc.tn.gov.in/judis
8.The learned Counsel for the first and second respondents submitted
that the minutes of the meeting was vitiated due to the fact that there was an undue
influence, by which N.Rajkumar agreed to the minutes of the meeting. He further
submitted that the parties have two separate entities. TNPL cannot withheld the
amount, which is due from one entity as against the another.
9.We remind that the civil Courts in this country are still functioning and
remedy for recovery of money is only to present the suit before the Civil Court.
Writ petition for the purpose of recovery of money is not maintainable. We hasten
to add that in case of undisputed amounts, a writ petition would be maintainable.
However, these are the exceptional circumstances. We feel that the present writ
petition is not maintainable, especially since N.Rajkumar had agreed that he had
signed the minutes of meeting dated 24.08.2012. Having agreed to the minutes of
the meeting, the question as to whether it is due to vitiating circumstances or not
are the matter, which require evidence. A writ petition is not a substitute for the
suit of recovery of money, especially when the facts are disputed.
https://www.mhc.tn.gov.in/judis
10.In light of the above, the writ appeal succeeds and the writ petition
stands dismissed. Liberty is granted to the writ petitioner to file a civil suit. The
time taken from September 2012, that is the date on which the writ petition was
filed, till date stands excluded for the purpose of computing the period of
limitation. In a properly instituted civil suit, all defences can be raised by the
respective parties. No costs. Consequently, connected miscellaneous petition is
closed.
(S.M.S., J.) & (V.L.N., J.)
29.11.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
ta
To
The Inspector of Police,
SIPCOT Police Station,
Tuticorin.
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM, J.
AND
V.LAKSHMINARAYANAN, J.
ta
29.11.2023
https://www.mhc.tn.gov.in/judis
