IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7984 of 2008(A)
1. M.S. NATARAJAN, S/O. SANKARAN,
... Petitioner
Vs
1. VASUDEVAN, S/O. KARUNAKARAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.ABRAHAM SAMSON
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
WP(C).No. 7984 OF 2008
............................................
DATED THIS THE 26th DAY OF JUNE, 2008
JUDGMENT
Petitioner is the defendant and respondent, the plaintiff in
O.S.15 of 2007 on the file of Munsiff Court, Ranni. Suit was one
for injunction. The plaint schedule property belongs to the
petitioner. It is a Rubber Estate. Petitioner and respondent
admittedly entered into an agreement on 12.1.2006, whereunder
respondent was permitted slaughter tapping of rubber trees for
two years and thereafter to cut and remove the rubber trees for
a total consideration of Rs.3,85,000/-, out of which Rs.1,00,000/-
was paid at the time of the agreement and Rs.50,000/- was to be
paid on or before 30.1.2006 and out of the remaining balance,
Rs.1,17,500/- was to be paid on or before 12.1.2007 and the
remaining Rs.1,17,500/- before cutting and removal of the
rubber trees. Respondent admittedly paid Rs.1,50,000/-, which
should have been paid on or before 30.1.2006. But on or before
12.1.2007, Rs.1,17,500/- was not paid. According to the
respondent, he approached petitioner and offered to pay the
amount in the evening of 12.1.2007, but petitioner refused to
receive the same. According to petitioner, respondent failed to
WP(C) 7984/2008 2
pay the amount and therefore he sent a notice dated 13.1.2007,
terminating the contract. The suit was instituted thereafter.
I.A.113 of 2007 was filed by the respondent under Order XXXIX
Rule 1 of Code of Civil Procedure, restraining petitioner from
causing any obstruction to his rubber tapping.
2. I.A.194 of 2007 was filed by petitioner seeking an order
of injunction under Order XXXIX Rule 1 of Code of Civil
Procedure, restraining respondent from trespass. As per
common order dated 9.4.2007, learned Munsiff dismissed
I.A.113 of 2007 holding that remedy of the respondent is to seek
damages or for specific performance of the contract. Holding
that respondent is not entitled to conduct slaughter tapping
subsequent to the termination of the contract, an order of
injunction was granted in favour of the petitioner. Petitioner
filed CMA 34 of 2007, challenging the order in I.A.113 of 2007.
Under Ext.P2 order, learned District Judge set aside the order of
learned Munsiff in I.A.113 of 2007 and permit respondent to
deposit Rs.1,17,500/- within seven days from the date of the
order holding that if he fails to do so, the order dismissing his
petition for injunction would stand and on deposit, he is entitled
to the order of injunction in I.A.113 of 2007. Learned District
WP(C) 7984/2008 3
Judge vacated the order in I.A.194 of 2007. Petitioner was also
directed to pay a cost of Rs.1000/-. This petition is filed under
Article 227 of Constitution of India, challenging Ext.P2 order.
3. Learned senior counsel appearing for petitioner and
learned counsel appearing for respondent were heard. Learned
senior counsel argued that when the agreement between the
parties was terminated by notice dated 13.1.2007, and learned
Munsiff rightly found that remedy of respondent is only to claim
damages and learned District Judge was not justified in granting
an order in favour of respondent and that too, by permitting
respondent to deposit Rs.1,17,500/- within seven days from the
date of that order. It was argued that by the said order, District
Court has created a new contract between the parties, without
the consent of the petitioner and Ext.P2 order is to be quashed.
Learned senior counsel also pointed out that petitioner should
have filed two separate appeals challenging the orders in two
applications and CMA 34 of 2007 could only be treated as an
appeal against the order in I.A.113 of 2007 and if so as the order
in I.A.194 of 2007 was not separately challenged, that order
would operate as res judicata in challenging the order in I.A.113
of 2007.
WP(C) 7984/2008 4
4. Learned counsel appearing for respondent argued that
the contract is not for any personal service but to enable
respondent slaughter tapping for two years and thereafter to
cut and remove rubber trees and respondent has performed his
part of the contract and even though respondent was prepared to
pay the amount due on 12.1.2007, petitioner did not receive the
same and after 12.1.2007, a notice was sent by respondent,
terminating the contract, which is invalid and therefore
respondent is entitled to enjoy the benefit available to him under
the contract and learned District Judge rightly permitted
respondent to enjoy the benefit under Ext.P2 reasoned order and
it cannot be interfered by this court in exercise of the powers of
this court under Article 227 of Constitution of India. Learned
counsel also argued that respondent has deposited Rs.1,17,500/-
as directed by District Judge and claim for damages cannot be an
appropriate remedy for respondent as damages cannot be
quantified as value of the rubber is fluctuating and in such
circumstances, there is no reason to interfere with Ext.P2 order.
5. The agreement admittedly executed by the parties on
12.1.2006 permits respondent to slaughter tap the rubber trees
for two years and thereafter to cut and remove the rubber trees.
WP(C) 7984/2008 5
But that privilege was given to respondent, subject to the
payment of the amount provided thereunder. Admittedly
respondent paid Rs.1,00,000/- on the date of execution of the
agreement and also paid Rs.50,000/-, which is to be paid on or
before 30.1.2006. Admittedly, second instalment of
Rs.1,17,500/-, which should have been paid on or before
12.1.2007 was not paid. There is a dispute whether respondent
offered to pay the same in the evening of 12.1.2007 as claimed
by respondent or respondent failed to pay the amount at all. That
is a matter which can be decided in the suit and that too on
evidence. Whatever be the case, it is admitted case that there
was no payment of Rs.1,17,500/- as provided under the
agreement on or before 12.1.1007. It is also admitted case that
thereafter, petitioner sent a notice, terminating the contract as
per notice dated 13.1.2007. The question of validity of notice is
also not to be decided at this stage. The question is what is the
remedy of the respondent, who was permitted slaughter tapping
of rubber trees for two years and had to cut and remove the
rubber trees thereafter. As per the contract period of agreement
is from 12.1.2006 to 12.1.2008. Even that period expired
subsequent to the filing of the suit. In such circumstances, the
WP(C) 7984/2008 6
question whether respondent is to be permitted to cut and
remove the trees as it would be the consequence if Ext.P2 order
is to be upheld. When a contract is broken, respondent is
entitled to claim damages. I cannot agree with the submission of
learned counsel that there is no possibility of quantifying the
damages, if any. In such circumstances, as found by the learned
Munsiff, remedy of respondent is to claim damages. He cannot
be permitted to cut and remove the trees at this stage. Ext.P2
order is therefore quashed. Consequently respondent is not
entitled to trespass into the property or slaughter tap rubber
trees or to cut and remove the trees as sought for. Respondent
is at liberty to withdraw the amount deposited before the court,
if so advised or to claim damages, if he is otherwise entitled to.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-