JUDGMENT
S. Jagadeesan, J.
1. The plaintiff in C.S.No. 156 of 2001 on the file of this Court is the appellant herein.
2. He filed the said suit for recovery of a sum of Rs. 13,91,213 with further interest at 18% per annum on the principal amount at Rs. 10,22,951.58 from the date of plaint till the date of realisation and for a permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property.
3. The respondents herein, who are defendants 2 to 8 in the suit, filed an
application in Appln.No.2135 of 2001 to reject the plaint in so far as the respondents herein are concerned on the ground that there is no privity of
contract between the appellant and the respondents herein and also the plaint does not disclose any cause of action against the respondents herein.
4. The learned Judge, by his order dated 27.9.2001, allowed the said application and ordered deletion of the respondents herein in the suit and the suit was dismissed so far as the respondents herein are concerned. Aggrieved by the same, the present appeal has been filed.
5. Learned counsel for the appellant contended that the respondents herein entered into an agreement with the first defendant in the suit for joint promotion of the plaint schedule property whereby the first defendant undertook to construct the flats and agreed to raise 50% of the construction with the respondents herein. Similarly, the respondents herein agreed to transfer 50% of the undivided share of their interest in the land in favour of the first defendant or their nominee or nominees. Pursuant to the said agreement, the plaintiff was entrusted with the construction work by the first defendant and following the agreement, the plaintiff constructed the building. Hence, he is entitled to recover the construction charges from the first defendant and the respondents herein. Hence, the said suit has been laid against all the parties.
6. On the contrary, learned counsel for the respondents herein contended that there is no privity of contract between the appellant and the respondents herein. The agreement pertaining to the joint promotion is only between the first defendant and the respondents herein. Whatever the work done by the appellant herein may be with regard to the entrustment of the same by the first defendant in the suit to the appellant herein. Hence, the appellant can make a claim only against the first defendant alone. The plaint also does not disclose any cause of action against the respondents herein. Hence, there is absolutely no need to interfere with the order of the learned Single Judge, who allowed the application filed by the respondents herein only on the ground that there is no privity of contract between the appellant and the respondents herein and if at all any claim is made by the appellant herein, it can only be against the first defendant in the suit.
7. We have carefully considered the above contentions of the learned counsel on either side.
8. In order to appreciate the contentions of the learned counsel for the appellant, it is necessary for us to have a look at the averments made in the plaint. The relevant portions read thus:
“….The plaintiff states that the first defendant entrusted the construction work with the plaintiff as per letter dated 17.10.1997 and followed by agreement of the same date and duly signed by their Project Manager Mr.N. Gopal and further agreed to pay bill amounts on presentation of the bill for payment as and when the value of work done reached Rs.5,00,000/- and above.
The plaintiff states that the said letter and agreement dated 17.10.1997 filed along with this plaint and the terms and conditions mentioned thereon may be read as part and parcel of this plaint. The plaintiff states that the defendants 2 to 8 are also aware of the entrustment of construction work in favour of the plaintiff, since the defendants 2 to 8 also agreed to get constructed buildings for them….
…The plaintiff was informed that the defendants 2 to 8 as owners of the property have agreed to take 50% of the constructed building and in lieu of transfer of 50% of the right in the land. As such, the construction of building in the property is for and on behalf of the defendants 2 to 8 also…
The plaintiff states that defendants 2 to 8 in collusion with the first defendant made attempt to enter into the property during the last week of January 2001 which was also duly prevented by the immediate action taken by the plaintiff. The plaintiff states that defendants 2 to 8 are illegally attempting to enter into the property without any intention to pay and settle the plaintiffs dues met by him for the construction work. The plaintiff is willing to deliver possession provided the cost of constructions is paid with further interest at the rate of 18% per annum from 11.1.1999. The plaintiff is also prepared to complete the construction and deliver possession provided the constructions cost already met by him is paid and further the charges for future works are guaranteed by the defendants….
The cause of action for the suit arose at Madras on 17.10.1997 when the first defendant entrusted the work as per letter dated 17.10.1999 and attempt dated 17.10.1997 and all the defendants delivered possession of the property to the plaintiff and subsequently on all days when the construction was carried out by the plaintiff in the suit property, on 11.1.1999 when the account was verified and the amount due and payable by the defendants was fixed, on the date when the plaintiff received caveat notice sent by the defendants 2 to 8, on 12.2.2001, and 15.2.2001 when the plaintiff issued lawyer’s notice and correction notice respectively and subsequently on all days when the suit claim stands and settled and within the jurisdiction of this Hon’ble Court…”
9. From the above averments in the plaint, it is clear that the appellant did not make any averment with regard to any privity of contract between the appellant and the respondents herein. In fact, paragraph 10 of the plaint makes it clear that the appellant was informed that the respondents herein are the owners of the property and they agreed to take 50% of the constructed building. Hence, when there is a specific agreement in respect of the joint venture only between the first defendant and the respondents herein, and in the absence of any privity of contract between the appellant and the respondents herein, it is not known as to how the appellant can proceed against the respondents herein. Even from the averments in paragraph 16, which relates to
the cause of action, it is clear that the receipt of caveat notice from the respondents herein has been mentioned to give rise to the cause of action against them. In our view, the issuance of notice either to safe guard the interests of the respondents herein or to avoid any ex parte order will not amount to independent cause of action. When the entire plaint does not reveal any cause of action against the respondents herein as per Order VII Rule 2 of the Civil Procedure Code, the plaint is liable to be rejected.
10. In the present case, on a fair reading of the plaint filed by the appellant, it is clear that the plaintiff has no cause of action to file the suit. In fact, in the affidavit filed in support of the application, the respondents have clearly stated that the first defendant has failed to fulfill their obligation under the agreement and having committed breach of the said agreement, and in view of the first defendant company having been wound up by the order of this Court in C.P.No.339 of 1999, the suit agreement stood automatically terminated. It is further stated that the plaint does not disclose any cause of action as against the respondents herein. They also added that the agreement between the appellant and the first defendant did not and could not create any privity of contract between the appellant and the respondents herein.
11. For the limited purpose of determining the question as to whether the suit is to be wiped out under Order VII Rule 2 of the Civil Procedure Code or not, only the averments in the plaint are to be looked into. From the averments made in the plaint, as stated earlier, and as stated by the learned Judge, we are of the view that there is no privity of contract between the appellant and the respondents herein and further, there is no cause of action for the appellant to maintain the suit. Consequently, we do not find any ground to interfere with the order of the learned Single Judge.
12. If there is no privity of contract, then the suit against such of those, who are not parties to the contract, is not maintainable as per the ratio dissident laid down by the Apex Court in the case of Aries Advertising Bureau v. C.T. Devaraj, and in the case of Nand Kishore v. State of Bihar, .
13. Hence, this original side appeal is dismissed. No costs. Consequently, the above C.M.P. is also dismissed.