BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :21/11/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD).No.1318 of 2008 and M.P.(MD).No.2 of 2008 Aramanai Raman Chettiar, Annadana Chatram rep. By its Trustees 1.Rengaraju @ Raju 2.Sethuraman 3.Mohanram 4.Raguraman ... Petitioners Vs. 1.Ravichandran 2.A.R.Jeyaraman 3.Udhayasankaran (The Second and third respondents were impleaded vide of this Court dated 22.07.2008 in CRP.Sr.No.25831/2008) 4.Vasan 5.Rajan ... Respondents Civil Revision Petition filed under Section 115 of C.P.C against the order dated 25.04.2008 made in I.A.No.580 of 2003 in O.S.No.199 of 2002 on the file the Sub Court, Kumbakonam. !For Petitioners ... Mr.V.Sithanranjandas ^For Respondents ... Mr.T.V.Sivakumar for R.1 Mr.S.Parthasaratthy Senior Counsel for Mr.M.S.Sureshkumar for R.2 & 3 Mr.R.RajaraMan for R.4 and R.5 :ORDER
1.The allegations found in the affidavit filed by the petitioners
are as follows:-
1.1. The petitioner is an auction purchaser conducted as per the Scheme
Decree dated 28.12.2003 in O.S.No.199 of 2002. The public auction was held on
19.04.2003. Since the petitioner quoted the higher sale price, the sale was
confirmed in his favour. In pursuance of the auction proceedings, as per the
order of this Court, dated 06.10.2003, he has deposited a sum of Rs.25,00,000/-
(Rupees Twenty Five Lakhs only) by drawing a demand draft on Kumbakonam Union
Bank of India dated 11.10.2003. Further, he has also paid Rs.4/- per square
feet as agreed, apart from the sale price to the plaintiff Trust. Since one
E.S.M.P.Kalil S/o.E.M.M.Pakeer Mohammed was cultivating tenant in the suit
property, he got possession from him in the presence of the Advocate on
01.07.2003 and 02.07.2003 and the same was also intimated to the Trust by means
of an affidavit given by the tenant on 18.10.2003.
1.2. In pursuance of the purchase, since the petitioner has to take and
maintain the property, necessary permission has to be accorded by the plaintiff
Trust. Hence, it is prayed that the plaintiff Trust may be directed to sign the
declaration acknowledging the possession taken by the petitioner for dealing
with all the affairs including getting lay-out approval, maintenance and
security etc of the properties comprised in T.S.No.147/1A in Kumbakonam Taluk.
2. In the counter filed by the fifth respondent, the following
averments are found:-
2.1. The petition is not maintainable. The petitioner attempts to create an
impression as if these plaintiffs have filed this application. The ranks of
parties found in the cause title of the petition have not been properly
described. The plaintiff and the defendants should have been arraigned as
respondents. On 28.01.2003, decree was passed in O.S.No.199 of 2002 permitting
the Trustees to sell the suit properties in public auction. The first plaintiff
by name one A.R.Bhadrusamy, who was elder among others, was authorised to look
after all the affairs of the Trust. All the plaintiffs were authorised to
conduct the sale and the Managing Trustee, namely the first plaintiff, alone
could not act arbitrarily.
2.2.On 30.03.2003, since the first plaintiff was over aged to deal with
the auction proceedings, the third and fifth respondents were appointed as
Executive Trustees by an unanimous resolution. As per the decree in O.S.No.199
of 2002, due notifications were made in dailies, namely, Dinakaran and
Malaimalar, in response to which, 14 individuals presented their offers. On
19.04.2003, an interview was held, but nobody was selected. Hence, it is false
to state that on 19.04.2003, the petitioner was confirmed as the auction
purchaser. Excepting the allegation as to his participation in the auction held
on 19.04.2003, other allegations are not correct. He has not offered the
highest price than the other bidders. In fact, his offer was Rs.81/- per Sq.ft.
The offers of one E.S.M.P.Kalil was Rs.82/- per Sq.ft; of S.Uthaman Rs.85/- per
Sq.ft; of Mohammed Rabi Rs.85/- per Sq.ft ; of Sivaji @ Ganesan Rs.90/- per
Sq.ft., and of A.R.Sethuraman was Rs.90/- per Sq.ft. Further, A.R.Sethuraman
informed the Trustees that he would also add Rs.7/- per Sq.ft and that he would
pay Rs.97/- per Sq.ft. On 19.04.2003, no decision was taken as regards auction
sale, so also, till today.
2.3. On 02.05.2003, 1,3 and 5 plaintiffs gave notice to A.R.Sethuraman to
have discussion with him on 10.05.2003. Since the first respondent did not
sign, the third and fifth respondents also did not sign. The first plaintiff
also agreed to have talk with A.R.Sethuraman. It was learnt that the said
A.R.Sethuraman represented to the first plaintiff that he (A.R.Sethuraman)
wanted to abstain from the sale proceedings and signed on 13.06.2003 to that
effect.
2.4. Thereafter, on 10.09.2003, all the Trustees were served with notice
and a Trust meeting was held on 13.09.2003. However, the first respondent did
not inform that interview was held on 10.05.2003. Even though it was decided to
confirm the purchaser, yet no final decision was taken in this regard. Without
sending notice to A.R.Sethuraman, the first plaintiff held an interview with
other four persons on 10.05.2003, for which there was no resolution from the
Trust Board and the said interview was not valid. No notice was issued to
S.Uthaman, who offered higher price than this petitioner. On 11.05.2003, the
Trust Board met and even at that time, the first respondent did not inform
anything about the interview. Even afterwards, the first and the third
respondents have not stated anything about the sale. The first plaintiff
colluded with this petitioner without the knowledge of the Trust Board. He
acted adverse to the resolution taken by the Trust Board and he signed and filed
petition as if, he alone represented the Trust. It is not sustainable. An
order was obtained from the Court on 06.10.2003, by furnishing false information
to the Court. Hence, it was resolved on 26.10.2003 that a proper order had to
be obtained from the Court by giving correct particulars. Merely because the
petitioner deposited Rs.25,00,000/- into the Court colluding with the first
plaintiff, he cannot become a confirmed auction purchaser. There was no separate
agreement with the petitioner for payment of Rs.4/- per Sq.ft. That fact was
not informed to the Trust Board by the first respondent. However, it was
strongly opposed. Already E.S.M.P.Kalil entrusted possession on 02.07.2003 to
the Trustees, for which he filed an affidavit through the Advocate.
2.5. It is false to state that on 02.07.2003, the petitioner obtained
possession from the tenant. The property is not possessed by the petitioner.
But it is in the possession of the Trust. The property is being maintained by
the Trust and the supervision of the Court is also there. The petitioner has no
right either to maintain or manage the properties. He has got only right to get
refund of the deposit made by him. The property is worth many crores. But if
the petition was not dismissed, there is danger of the petitioner taking over
the properties for a meagre sum. The property is to an extent of five acres and
odd equal to 2,24,540 Sq.ft. If Rs.97/- per Sq.ft is calculated, it would come
to Rs.2,17,80,380 and if the property was sold for Rs.81/- per sq.ft, the trust
would get Rs.1,81,87,740/- alone. So, the trust will incur a loss of
Rs.35,92,640/-.
2.6. It is stated that after the period for submitting the tender was
over, one Bazeer offered Rs.100/- per Sq.ft and he also undertook to pay the
auction amount immediately. In the adjacent areas, named as Bharath Nagar and
Periyathambi Nagar, a square feet is being sold at the rate of Rs.250/- per
Sq.ft. As such, more than Rs.100/- per Sq.ft could be fetched. If the above-
said things are considered, it could be understood that the Trust would lose
crores of rupees. Without the resolution of the Trust Board, the first
respondent acted and hence, the petitioner could not be treated to be an auction
purchaser and he cannot get involved in any affairs of the Trust properties for
his selfish activities. Because of the first plaintiff, the welfare of the Trust
should not be prejudiced. There is no bona-fide in filing the application. The
petitioner has deviated from the decree and the Rules of the Trust. The
petitioner is the third party and hence, he could not file any interlocutory
application and obtain relief in O.S.No.199 of 2002. Hence, the petition has to
be dismissed.
3. The learned Principal Sub-Judge, Kumbakonam, on 25.04.2008 allowed
the application with costs granting the reliefs as prayed for in the petition.
The said order is under challenge before this Court.
4. The learned counsel for the petitioners Mr.V.Sitharanjandas would
contend that the Court below has not considered the rate of Rs.97/- per Sq.ft
quoted by A.R.Sethuraman, but approved the lower offer of Rs.81/- per Sq.ft.
cited by the petitioner. It is mentioned in grounds of Revision that besides
other petitions, the following Interlocutory Applications are also pending:-
(a) I.A.No.594 of 2003 is for direction to implement the resolution dated
13.03.2003 passed by the Trust Board authorising the first petitioner and the
second respondent to take care of the sale transaction.
(b) I.A.No.595 of 2003 is for directing the first plaintiff
A.R.Bhadrusamy not to have direct dealing with the first respondent namely one
Ravichandran in respect of sale transaction.
(c) I.A.No.596 of 2003, is to set aside the order dated 06.10.2003
permitting the first respondent to deposit Rs.25,00,000/- and to refund the same
to him.
5. Referring to the pendency of those petitions, the learned counsel
for the petitioners would state that without disposing of the above said
applications, the direction issued in I.A.No.580 of 2003 is erroneous.
5.1. In view of death of A.R.Bhadrusamy on 22.10.2005, I.A.No.595 of 2003
has become infractuous.
6. The learned counsel for the first respondent Mr.T.V.Sivakumar would
repel the contention of the learned counsel for the petitioners, by submitting
that as per the Scheme Decree passed in O.S.No.199 of 2002, the auction was held
by the first petitioner and the second respondent along with deceased first
plaintiff / A.R.Bhadrusamy and hence, the action was valid, that even though
there were authorised offers, excepting the first respondent, no bidder
subsequently expressed his willingness to have the auction in his favour, that
the market value of the property has to be considered as on the date of the
sale, namely on 19.04.2003 and the subsequent escalation in the price could not
be considered and that the auction in favour of the first respondent was valid
in the eye of law.
7. The learned Senior Counsel Mr.S.Parthasarathy, appearing for
Mr.M.S.Suresh Kumar, for the second and third respondents would contend that
even though A.R.Sethuraman quoted higher price, he withdrew from the auction
proceedings afterwards. The learned counsel for the respondents R.4 and R.5
would submit that though the decree passed in O.S.No.199 of 2002 is a judgment
under Order 12 Rule 6 CPC, a suit filed in O.S.No.114 of 2005 for setting aside
the Scheme is pending and hence, further proceedings could not be taken up.
8. Repelling the contention of the learned counsel for the respondents
4 and 5, the learned counsel for the first respondent would say that the 4th and
5th respondents have no locus standi to contend anything in this civil revision
petition since the petition filed by them in I.A.No.50 of 2007, under Order 1
Rule 10 CPC, to implead them as respondents in I.A.No.580 of 2003, was dismissed
on 25.04.2008 by the learned Principal Sub-judge, Kumbakonam, and no appeal nor
revision has been preferred from the said order and the order has become final
and hence, the 4th and 5th respondents could not have any say in the
proceedings.
9. O.S.No.199 of 2002 was filed by Trustees of Aramanai Raman Chettiar
Annadhana Chathram Trust (for short ‘the Trust’) against the present 4th and
5th respondents for a decree permitting them to sell the suit Trust properties,
from which no income is derived at present, by auction sale and to deposit the
corpus amount in a Nationalised Bank and to receive periodical interest to meet
the charity and other expenses and to frame a Scheme and also for management of
the Trust.
10. The defendants are the sons of one Sundaragopal, who has been
reportedly disqualified to be the Trustee of the Trust, and it is alleged in the
suit that they were not entitled to function as Trustees. The suit ended in a
compromise. A memo filed by the defendants for framing a Scheme to administer
and manage the plaintiff’s Trust after evidence, dated 10.01.2003, in which the
defendants namely the 4th and 5th respondents and the learned counsel for the
defendants have also singed.
11. The learned counsel for the first respondent also stresses a point
that inasmuch as the petitioners filed I.A.No.351 of 2005 on the file of Sub-
court, Kumbakonam for the relief of appointment of a Receiver to manage the
Trust properties and directing him to submit the accounts once in a month,
impleading the second and third respondents and also one A.R.Senthilkumar, son
of the second plaintiff A.R.Raghavan, in O.S.No.199 of 2002, the petition having
been dismissed on merits, and they having not preferred any appeal or revision,
their contention in the present petition is barred by res judicata and that they
are precluded from approaching the Court with identical contentions before the
Court in this proceedings.
12. A suit in O.S.No.114 of 2005 has been instituted by the present 4th
and 5th respondents for declaring that the decree dated 28.01.2003 made in
O.S.No.199 of 2002 is invalid, unsustainable and non-est and consequently to
cancel the same and also for granting permanent injunction restraining the
defendants from in any way instituting or participating in any proceedings with
election of Managing Trustee or taking any other action or step in pursuance of
the decree dated 28.01.2003 in O.S.No.199 of 2002 on the file of Sub-Court,
Kumbakonam. Even though, these petitioners, second and third respondents were
impleaded as defendants in the suit, the first respondent is not a party to the
suit. There is no stay or injunction granted in the said suit for further
proceedings of the auction held on 19.04.2003.
13. Presently, A.R.Jeyaraman is the Managing Trustee of the Trust and he
has been acting in the capcity as such in the proceedings.
14. The quintessence of the contention of the learned counsel for the
first respondent is that having invited an adverse order in I.A.No.351 of 2005
and the present petitioners not filed any revision or appeal from the said
order, now their identical contention and claim are barred by principle of res
judicata and that it is applicable not only to different suits between the same
parties, but also in the subsequent stages of the same proceedings. In order to
appreciate the contentions in the background of the settled legal proposition,
it is inevitable to have a discussion as to the decision made in I.A.No.351 of
2005 in the presence of pleadings of respective parties thereon.
15. As stated above, I.A.No.351 of 2005 was filed by the present
petitioners 1 to 3 and one A.R.Raghavan against the second and third respondents
herein and also one A.R.Senthilkumar S/o.A.R.Ragavan praying for the relief of
an appointment of a Receiver to manage the Trust properties. In the affidavit
annexed to the petition, these petitioners have alleged that A.R.Bhadrusamy and
A.R.Jeyaraman are acting against the interests of the Trust and A.R.Bhadrusamy
attempted to knock down the sale in favour of Ravichandran. But, ignoring the
individuals, who cited higher sale price, 1 to 3 respondents, namely
A.R.Jeyaraman, A.R.Udayasankaran and Senthilkumar were assisting A.R.Bhadrusamy
to sell the property for a lesser price, which is worth about crores of rupees
and that some other properties were sold without knowledge of the petitioners,
that A.R.Bhadrusamy received a sum of Rs.10,00,000/- for expenses to meet
expenses for the lay out process and the said amount was not properly accounted
and hence, a Receiver has to be appointed.
16. In the counter filed for I.A.No.351 of 2005 by the first respondent
A.R.Jeyaraman, adopted by the other respondents, it is stated that in I.A.No.594
of 2003 filed by the petitioners to appoint him (A.R.Jeyaraman) as Executive
Trustee and presently, they are filing a contradictory affidavit with false
averments and ulterior motive. It is further stated that the petitioners are
scheming persons and they are dragging on the proceedings without conducting
enquiry. When the Scheme Decree is not challenged under law, the petition for
appointing of a Receiver and for stay are not maintainable. The averment that
the letters handed over by A.R.Bhadrusamy and Jayaraman to Ravichandran, were
entered in the minutes on 26.10.2003 are not correct. The present petition is
also against the averments made in the minutes signed by all the parties. On
26.10.2003, the minutes book was snatched from A.R.Bhadrusamy and returned only
after one week.
17.1. After hearing both parties in I.A.No.351 of 2005, the learned Sub-
Judge, dismissed the application on 17.01.2006 observing that had the auction
been irregular, either the trustees / petitioners or the beneficiaries or the
individuals, who participated in the auction should have taken legal steps and
no material is shown to infer that any one has applied the Court for setting
aside the auction dated 19.04.2003 and that O.S.No.333 of 2003 filed by the
petitioners for a decree restraining the Sub-registrar from handing over the
sale deed to Ravichandran has also been dismissed, that there is no evidence to
show that A.R.Bhadrusamy acted in derogation to the interests of the Trust in
arranging sale of Trust property for a paltry sum and that however it was true
that A.R.Bhadrusamy misappropriated Rs.10,00,000/- received from Ravichandran,
but there were no criminal proceedings or civil litigation to recover the money
from him, that in the Trust Board Meeting held on 30.03.2003, as per the Scheme
Decree, it was resolved by the petitioners and the respondents to sell the
property to Ravichandran, in which they have signed and hence, now the version
that the respondents colluded with Ravichandran is not acceptable.
17.2. It is further observed that the Managing Trustee A.R.Bhadrusamy was
responsible to convene the Trust Board Meeting, who died on 22.10.2005 and hence
for non-convening the meeting, the respondents could not be held responsible.
As for bank accounts of the Trust to be operated by the first petitioner and the
deceased A.R.Bhadrusamy jointly, they are also subjected to the auditing and
hence the contention that the accounts were not properly maintained could not be
countenanced. The petitioners filed I.A.No.184 of 2003 to appoint the first
respondent as Executive Trustee and the same is pending, that there had been no
steps to remove him from the Trust Board levelling allegations that he acted
against the interests of the Trust and that the clauses in the Scheme Decree
have to be respected and that no ground has been made out for appointment of
Receiver.
18. Going by the pleadings of the parties and the material findings in
the order passed by the learned Principal Sub-Judge as extracted above, in
I.A.No.351 of 2005, it is seen that the sale has been held as per the procedure
formulated by the Trust Board, that there was no irregularity in holding
auction, that the contention that A.R.Bhadrusamy acted against the interests of
the Trust remains unproved and that nobody else, who participated in the
auction, felt aggrieved that in spite of his quoting higher price the sale was
not knocked down in his favour. It is admitted that A.R.Sethuraman after
quoting the highest amount had not turned up and furnished solvency to pursue
the matter, so also, Kalil, S.Uthaman, Mohammed Rabi and Sivaji @ Ganesan. The
remaining bidder is only Ravichandran and he has to be termed to be the
successful bidder.
19. While the point of res judicata was covered by the arguments of both
sides, the learned counsel for the petitioners would place reliance upon a
Larger Bench decision of the Supreme Court reported in (1964) 5 SCR 946, Arjun
Singh v. Mohindra Kumar in which it is held that if the principle of res
judicata is to be applicable, no new facts should have been adduced in the
subsequent proceedings and the Court is precluded from making fresh
investigation. The principles set out in the decision are as follows:-
“13. Thus if an application for the adjournment of a suit is rejected, a
subsequent application for the same purpose even if based on the same facts, is
not barred on the application of any rule of res judicata, but would be rejected
for the same grounds on which the original application was refused. The
principle underlying the distinction between the rule of res judicata and a
rejection on the ground that no new facts have been adduced to justify a
different order is vital. If the principle of res judicata is applicable to the
decision on a particular issue of fact, even if fresh facts were placed before
the Court, the bar would continue to operate and preclude a fresh investigation
of the issue, whereas in the Other case, on proof of fresh facts, the court
would be competent, may would be bound to take those into account and make an
order conformably to the facts freshly brought before the court.”
20. It is well settled that the res judicata applies not only in
separate proceedings but also subsequent stageS of the same proceedings. The
Larger Bench of the Supreme Court in a decision reported in (2005) 1 SCC 787 =
2005 (1) CTC 368, Bhanu Kumar Jain v. Archana Kumar, referring to its earlier
decisions reported in AIR 1960 SC 941, Satyadhyan Ghosal and others V.
Smt.Deorajin Debi and another, in paragraphs:18, 28 and 30, has held thus:-
“18. It is now well settled that principles of res judicata apply in
different stages of the same proceedings. (See Satyadhyan Ghosal and others v.
Smt. Deorajin Debi and Prahlad Singh v. Col. Sukhdev Singh, 1987(1) scc 727
In Y.B. Patil it was held:
“4. ? It is well settled that principles of res judicata can be invoked
not only in separate subsequent proceedings, they also get attracted in
subsequent stage of the same proceedings. Once an order made in the course of a
proceeding becomes final, it would be binding at the subsequent stage of that
proceeding.”
28. Res judicata debars a court from exercising its jurisdiction to
determine the lis if it has attained finality between the parties whereas the
doctrine issue estoppel is invoked against the party. If such an issue is
decided against him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res judicata creates a different kind of estoppel
viz. estoppel by accord.
30. The said dicta was followed in Barber v. Staffordshire County Council.
A cause of action estoppel arises where in two different proceedings identical
issues are raised, in which event, the latter proceedings between the same
parties shall be dealt with similarly as was done in the previous proceedings.
In such an event the bar is absolute in relation to all points decided save and
except allegation of fraud and collusion. [See C. (A Minor) v. Hackney London
Borough Council”
21. An identical view has been echoed by the Supreme Court in the
following other cases also. In Iswar Dutt Vs. Land Acquisition Collector and
another reported in (2005) 7 Supreme Court Cases 190, in which the Supreme Court
in paragraphs: 14 and 27 has held thus:-
“14. It is not in dispute that the High Court issued a writ of mandamus. It is
also not in dispute that the direction of the High Court was acted upon. The
principle of res judicata, as is well known, would apply in different
proceedings arising out of the same cause of action but would also apply in
different stages of the same proceedings. As the judgment and order passed in
CWP No. 510 of 19851 attained finality, we are of the opinion that the
respondents herein could not have raised any contention contrary thereto or
inconsistent therewith in any subsequent proceedings.” urther noticed: (SCC p.
64, para 42)
27…..
“42. In Ishwardas v. State of M.P., this Court held: (SCC p.166, para 7)
‘In order to sustain the plea of res judicata it is not necessary that all the
parties to the two litigations must be common. All that is necessary is that the
issue should be between the same parties or between parties under whom they or
any of them claim.’ ”
22. In Chhabil Das v. Pappu, (2006) 12 SCC 41 = 2006(5) CTC 606, in
para:13, it is held as follows:-
“12. It is now well known that the principle of res judicata also applies in
different stages of the same proceedings. (See Bhanu Kumar Jain v. Archana
Kumar., 2005(1) CTC 368; 2005(1) SCC 787 and Ishwar Dutt v. Land Acquisition
Collector & Anr., 2005 (7) SCC 190.)”
23. Even though fraud and collusion were pleaded in the earlier
proceedings, the Court has negatived the same. Having remained without
preferring any appeal or revision, now the respondents could not comment that
the auction is tainted with fraud and collusion.
24. In the previously instituted proceedings namely I.A.No.351 of 2005,
the first respondent was not a party. However, his interest in the subject
matter was subjected for consideration. If a person having interest in any
action or interest in an estate created by another, a person who derives
interest from contract to which he is not himself, a party is termed as
“privies”.
25. Employing the term “privies” the Apex Court in Iswar Dutt’s case has
observed as follows:-
“The principle of res judicata is a species of the principle of estoppel.
When a proceeding based on a particular cause of action has attained finality,
the principle of res judicata shall fully apply. Cause of action estoppel
arises where the cause of action in the later proceedings is identical to that
in the earlier proceedings, the latter having been litigated between the same
parties or their privies and having involved the same subject matter.”
26. In order to satisfy the terms “between the same parties”
incorporated in Section 11 CPC, the person who derives interest should also be
considered. The Apex Court has held that the latter proceedings shall be
litigated between the same parties or their “privies” and the same subject
matter be involved.
27. In the Law Lexicon by P.Ramanatha Iyer, Reprint 2004, the term
“privies” has been defined as follows:-
“PRIVIES: All who have mutual or successive relationship to the same rights ;
persons connected together, or having a mutual interest in the same action or
thing, by some relation other than that of actual contract between them; persons
who are parties to, or have an interest in, any action or thing, or any relation
to another; persons whose interest in an estate is derived from the contract or
conveyance of others; those who are partakers or have an interest in any action
or thing, or any relation to another”
28. The first respondent could very well be brought within the
purview of the term “privies”. Hence, there is no doubt about the
application of principles of res judicata in this proceedings. In order to
sustain the plea of res judicata, it is not necessary that all the parties to
the two proceedings must be common. Necessary it is that the issue should be
between the same parties or between parties under whom or any of them derive
rights and claim.
29. Following are the circumstances under which the auction in favour of
the first respondent could be upheld. The auction was held on 19.04.2003, after
due publication in the dailies as per the terms of compromise decree, by the
authorised Trustees on 19.04.2003. (Para 29(i) to 29 V)
29.(i) . Even though it is alleged in the counter in I.A.No.580
of 2003 that E.S.M.P.Kalil quoted Rs.82/- per Sq.ft ; S.Uthaman’s as Rs.85/ per
Sq.ft ; Mohammed Rabi’s as Rs.85/- per Sq.ft ; Sivaji @ Ganesan’s as Rs.90/- per
Sq.ft., ; A.R.Sethuraman as Rs.90/- per Sq.ft., excepting the first respondent
no body turned up to furnish solvency as required by the procedure to the
satisfaction of the Trustees.
29.(ii). S.Uthaman filed application I.A.No.593 of 2003 to set aside the
sale in favour of the first respondent. After contest, the petition was
dismissed on 30.11.2004 and there had been no appeal nor revision.
29.(iii). In the counter filed by A.R.Bhadrusamy and the second
respondent, A.R.Jayaraman, it has been categorically admitted that the Court,
after perusing all the records, has chosen one Ravichandran as qualified person
for the auction and directed him to deposit Rs.25,00,000/- and the same was
deposited and that S.Uthaman had not produced any solvency, either on the date
of auction or any subsequent date.
29.(iv). In I.A.Nos.594,595,596 of 2003, A.R.Bhadrusamy and A.R.Jeyaraman
filed counters in which they have stated as follows:-
A.R.Sethuraman never agreed for Rs.97/- per Sq.ft and gave in writing that
he was prepared to pay Rs.73/- per Sq.ft. Afterwards, in the minute book
instead of Rs.73/-, A.R.Sethuraman wrote Rs.90/- per Sq.ft. It was approved by
A.R.Rengaraju @ A.R.R.Raju and accepted by other Trustees. It is further
alleged that Sivaji @ Ganesan also did not furnish any solvency as per the
procedure and that among all the bidders who were interviewed, the quotation by
Ravichandran (the first respondent) and his others responses were found in
favour of the welfare of the Trust. He agreed and signed in the minutes and the
said minutes as well as interim report were submitted to the Court. It is also
stated that it is incorrect in alleging that A.R.Jeyaraman colluded with
Ravichandran. In addition to quoting
Rs.81/- per Sq.ft, Ravichandran agreed to pay Rs.4/- per Sq.ft in addition, for
getting lay out etc and he reduced it to writing in the auction minutes and
singed in the presence of the Trustees and hence, his quotation for one Sq.ft
comes to Rs.85/- A.R.Bhadrusamy did not act arbitrarily and A.R.Jeyaraman was
also not assisting him. As per the auction minutes, when the total value of the
property is calculated, if per Sq.ft Rs.85/- is paid, it comes to
Rs.1,91,05,450/- and if other expenses for getting G.O., and formation of park
are included, the auction purchaser has to spend considerable amount and hence
price for one Sq.ft, would be Rs.100/- and it is incorrect to state that one
Sq.ft would fetch Rs.250/- It is learnt that for formation of lay outs on the
other three sides of the auctioned land, approach roads with a width of 30
feet, a community hall and parks, and also streets have to be provided, which
would constitute 35% to 40% of the total area and thereafter, G.O. has to be
obtained from the Government and then only the guidelines value could be
prepared by the Registration Department and the above-said matters were reduced
to writing in which A.R.Bhadrusamy, A.R.Rengaraju @ A.R.R.Raju and A.R.Jeyaraman
singed and that the petitioners are not competent to file the petition for
direction to refund of Rs.25,00,000/- to Ravichandran.
29.(v). The first respondent filed petition in I.A.No.90 of 2008 on
04.06.2008 with a prayer for direction to the Managing Trustee to execute and
register sale deed in his favour, in default the same may be executed by the
Court. The said petition is pending. A.R.Jeyaraman ( the second respondent)
filed counter on 25.06.2008, to the said petition for the present third
respondent also in which he has stated that in pursuance of the auction,
Ravichandran had to pay the entire sale price by 01.04.2004 and it is not known
whether it is the lapse on his part or on the part of Trustees, A.R.Raju @
A.R.Rengaraju, A.R.Sethuraman, A.R.Jeyachandran, A.R.Mohanram and
A.R.Raghuraman. If interest is calculated for Rs.1,56,05,450/- at the rate of 8%
upto 30.06.2008, it would come to Rs.50,52,697/-. Worthwhile it is to note that
A.R.Jeyaraman has not raised any dispute about the validity of auction.
30. The above-said statements of by A.R.Jeyaraman in I.A.Nos.594, 595 and
596 of 2003 and I.A.No.90 of 2008 which are in favour of the first respondent
herein would amply show that the Trust has been recognising the auction in his
favour.
31. Yet another contention of the learned counsel for the petitioner is
that when several interlocutory applications are pending before the Court below,
this petition alone has been disposed of and that a direction has to be issued
by this Court to dispose of all the applications along with this application.
This Court is unable to accept the contention for the reason that with co-
operation of all the parties the matter was enquired and a considered order has
been passed by the Court below in I.A.No.580 of 2003. Hence, orders to be
passed in those interlocutory applications may be consequential to the orders
passed in I.A.No.580 of 2003 and I.A.No.351 of 2005.
32. In pursuance of the order of the Court below dated 06.10.2003, the
first respondent deposited a sum of Rs.25,00,000/- in Union Bank of India,
Kumbakonam on 11.10.2003 in the name of the plaintiffs’ trust. Thereafter, he
filed a memo dated 28.04.2008 to permit him to deposit Rs.1,56,05,450/- into the
Court and he was permitted to deposit as such without prejudice to both parties.
By means of three fixed deposits on 02.06.2008, the first respondent has
deposited Rs.1,56,05,450/- and those receipts were received by the Court below
on 03.06.2008. It is also contended by him that he handed over Rs.10,00,000/- to
A.R.Bhadrusamy, for lay out expenses, which was admitted by the respondents.
33. The learned counsel for the petitioner would submit that since the
decree passed in O.S.No.199 of 2002 was not a compromise decree but the judgment
on admission, it would require registration because the decree creates rights
for the first time. In support of his decision, he relied upon a decision of
the Supreme Court reported in AIR 1996 Supreme Court 1996, Bhoop Singh V. Ram
Singh Major and Others in which the Apex Court has discussed the matter under
Order 23 and Rule 3 and Order 12 Rule 6 CPC.
34. In the above said case, the suit was decreed in view of the written
statement filed by the defendant admitting the claim of the plaintiff to be
correct. Decreeing of suit in such a situation is covered by Order 12 Rule 6,
and not by Order 23 Rule 3, which deals with compromise of suit, whereas the
former is on the subject of judgment of admission.
35. But the facts in the present case are distinguishable. The judgment
in O.S.No.199 of 2002 was passed on the consent memo filed by the defendants
submitting that the suit may be decreed for framing a Scheme to administer and
manage the plaintiff’s Trust.
36. Since the claim of the first respondent is entertained by the Court
below, it shall expeditiously dispose of I.A.No.50 of 2008
filed by him. On the in-depth study of the records of this case, this Court is
of the considered view that the auction held on 19.04.2003 is a valid one and
the auction purchaser, namely the first respondent, has to be extended the
benefit of auction by the Trust and in this regard, the order passed by the
Court below deserves to be confirmed. It is accordingly confirmed. The civil
revision petition is liable to be dismissed.
37. In fine, the civil revision petition is dismissed. Consequently,
connected M.P. is closed. No costs.
ssm
To
The Sub Court,
Kumbakonam