IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25/04/2003
Coram
The Honourable Mr.Justice M. KARPAGAVINAYAGAM
CIVIL REVISION PETITION (PD) No.3665 of 2001
and
C.M.P.No.19550 of 2001
1. Sree Madura Enterprises,
Rep. by its Partner S.Murthy
2. V.R. Subbaraya Gounder & Sons
Rep. by its Partner S.Sadasivam ..Petitioners
-Vs-
1. C. Thangavel
2. S.K.Samy & Sons Ware House,
Rep. by its Partner K.Duraisamy ..Respondents
Civil Revision Petition against the fair and decretal order dated
6.11.2001 made in I.A.No.895 of 2001 in O.S.No.188 of 2001 on the file of the
I Additional Subordiante Judge's Court, Erode.
!For Petitioners : Mr. R. Sekar for
M/s.Sarvabauman Associates.
^For Respondent-1 : Mr.A.K. Kumarasamy
For Respondent-2 : Mr. V.K. Muthusamy, S.C.for
Mr.B. Parthasarathy
:O R D E R
Sree Madura Enterprises and V.R. Subbaraya Gounder & Son, the
petitioners are the defendants 2 and 3 in the suit.
2. C. Thangavel, the first respondent herein filed a suit
against S.K.Samy & Sons Warehouse, the second respondent/first defendant and
the petitioners as defendants 2 and 3 for mandatory injunction directing the
first respondent to deliver the goods deposited by the defendants 2 and 3, the
petitioners herein to them under deposit receipts under which they have been
authorised by the petitioners to receive the said goods from the first
defendant.
3. Pending the suit, the petitioners filed an application in
I.A.No.924 of 2001 under Order 7 Rule 11 C.P.C. requesting the Court to hold
that the suit is not maintainable, since the valuation of the suit is not
correct, inasmuch as the worth of the suit goods is about Rs.23 ,12,100/- and
praying to decide the value of the suit and the Court fee paid as a
preliminary issue.
4. While that being so, C.Thangavel, the plaintiff, the first
respondent filed an application in I.A.No.895 of 2001 to appoint an Advocate
Commissioner to sell the goods deposited with the first defendant by the
defendants 2 and 3 on the ground that the goods are perishable in nature. The
said application was opposed by the defendants 2 and 3, the petitioners
herein.
5. After enquiry in both these petitions, the trial Court allowed the
application in I.A.No.924 of 2001 and decided to take the question of
maintainability of the suit and value of the suit as a preliminary issue.
After deciding so, the trial Court on the same date, ie. on 6.11.2001 allowed
the application in I.A.No.895 of 2001 filed by the first respondent/plaintiff
permitting the goods to be sold by appointing Advocate Commissioner and
directing him to sell the goods in public auction and to deposit the value of
the goods in the Court. The defendants 2 and 3 challenging the said order
have filed this civil revision petition.
6. According to the petitioners, the suit filed by C.Thangavel, the
first respondent herein is in pursuance of the collusive act with the first
defendant M/s.S.K.Samy & Sons Warehouse to whom the goods were entrusted by
the petitioners and having failed in the efforts of M/ s.S.K.Samy & Sons
Warehouse in illegally disposing of the goods had set up C.Thangavel to file
the suit for mandatory injunction.
7. It is further contended that when the jurisdiction was questioned
and payment of Court fee was challenged in the application filed by the
petitioners in I.A.No.924 of 2001, the trial Court, having decided that the
said question of maintainability and jurisdiction must be decided as a
preliminary issue before proceeding further, ought not to have allowed to sell
the goods in question in public auction which was done by the Advocate
Commissioner hurriedly without following the procedure in spite of the fact
that the petitioners requested the trial Court not to allow the Advocate
Commissioner to proceed further in view of the fact that they had made
arrangements to file a revision against that order before this Court.
8. The said contention is opposed by the counsel appearing for the
first respondent as well as the second respondent contending that in pursuance
of the order passed by the trial Court dated 6.11.2001, tenders were called
for and the Advocate Commissioner sold the goods to the highest bidder and the
sale proceeds were deposited in the Court on 20.11.2001 itself and as such,
this revision becomes infructuous.
9. I have heard the counsel for the parties and carefully considered
their submissions.
10. On a perusal of the records and the entire typed set and on
consideration of the history of the case which is a chequered one, it is
obvious that the order impugned suffers from various infirmities. It is also
noticed that the trial Court has unduly directed the Advocate Commissioner to
proceed with the sale of the goods in a hasty manner.
11. The brief history of the case would be relevant in order to point
out the invalidity of the order impugned:
“The petitioners/defendants 2 and 3 deposited the suit goods, namely,
4048 bags of Bengal gram weighing 100 kg. each, 2695 bags of gram dhall
weighing 100 kg. each, 1351 bags of gram dhall weighing 50 kg. each, 3239
bags of Bengal gram weighing 100 kg. each, 738 bags of gram dhall weighing
100 kg. each and 2445 bags of gram dhall weighing 50 kg. each with S.K.Samy
& Sons Warehouse, the first defendant, the second respondent herein under
Exs.A1 to A8 deposit receipts. The petitioners demanded the said Warehouse to
return the goods on receipt of warehouse charges. However, S.K.Samy & Sons
Warehouse, the second respondent herein did not oblige. Therefore, the
petitioners gave a police complaint against the Warehouse. When the
investigation was on, S.K.Samy & Sons Warehouse filed a suit in O.S.No.16 of
2001 on the file of the Principal District Munsif, Erode against the police
officials and the petitioners for injunction. Though the petitioners were
impleaded as defendants in that suit, the second respondent/ Warehouse filed
an application for exonerating the petitioners in that suit. The petitioners
filed an application thereafter to implead them, but it was dismissed.
Therefore, they filed a revision in C.R.P.No. 296 0 of 2001 before this
Court. At that point of time, the second respondent/Warehouse collusively
filed the present suit in O.S.No.188 of 2 001 through Thangavel, the first
respondent for mandatory injunction to deliver the goods entrusted with the
Warehouse by the petitioners as if he was authorised by the petitioners to
receive the goods from the Warehouse. Though the value of the suit go ods is
Rs.20,12,100/-, the suit was undervalued as if the value is only Rs.30,100/-.
Therefore, the petitioners filed an application in I.A.No.924 of 2001 to
decide the value of the suit and the maintainablity with regard to
jurisdiction as a preliminary issue. Thangavel, the first respondent herein
filed an application in I.A.No.895 of 2001 seeking for direction to appoint an
Advocate Commissioner to sell the goods as they are perishable in nature. The
trial Court, as indicated above, allowed the application filed by the
petitioners holding that the jurisdictional issue can be decided first as a
preliminary issue before proceeding further. At the same time, it allowed the
application filed by the first respondent as well in I.A.No.895 of 2001 to
sell the goods through the Advocate Commissioner.”
12. On the face of it, the order of the trial Court which is in the
nature of ‘oxymoron’ is illegal for the following reasons.
13. When the question of jurisdiction and payment of Court fee is
directed to be decided as a preliminary issue through the order passed by the
trial Court on the application filed by the petitioners in I.A.No.924 of 2001,
all the other further proceedings cannot be allowed to go on. Having decided
to take up the question regarding jurisdiction and maintainability of the suit
first as a preliminary issue, the trial Court ought to have conducted enquiry
in that matter and decided the said issue speedily. The act of allowing the
application filed by the petitioners to decide the maintainability of the suit
as a preliminary issue as well as allowing the application appointing the
Advocate Commissioner to sell the goods would amount to blowing hot and cold.
14. Even though the trial Court has decided in I.A.No.924 of 2001
that the jurisdictional issue will be taken as a preliminary issue and it
should be decided first, unfortunately, the trial Court held in the impugned
order in I.A.No.895 of 2001, which was passed on the same day, that all the
issues relating to the entitlement of the relief sought for by the plaintiff
would be decided only at the conclusion of trial and therefore, sale of suit
goods is essential. This would indicate that the trial Court has already
pre-judged the preliminary issue and indicated in the impugned order that the
trial will go on in this case and in that event, it would take time and as
such, the suit goods which are perishable in nature are to be sold.
15. The reading of the order passed in I.A.No.924 of 2001 would
clearly reveal that the trial Court wanted to decide the preliminary issue
first because if the same is decided in favour of the defendants 2 and 3, the
petitioners herein, the suit will be dismissed. But, the perusal of the
impugned order in I.A.No.895 of 2001 would indicate the mind of the trial
Court that the trial in the suit would go on and all the issues would be
decided only at the conclusion of trial. This shows that the trial Court has
taken a decision in I.A.No.895 of 20 01 which is quite contradictory to the
spirit of the order in I.A.No.924 of 2001 passed on the same day.
16. Furthermore, the trial Court by the order dated 6.11.2001
appointed one Devarajan as Advocate Commissioner to sell the suit goods after
proper notice to the parties concerned and directed the report to be filed on
6.12.2001. In order to challenge this order, the petitioners applied for the
certified copies and got them delivered only on 13.11.2001. In the meantime,
the Advocate Commissioner inspected the premises and made paper publication
about the proposed auction on 13.11.2001, 14.11.2001 and 15.11.2001 and h e
fixed the date as 19.11.200 1 for receiving the sealed tenders. On
19.11.2001, the petitioners filed an application before the trial Court
seeking for stay and to adjourn the matter to enable them to file a revision
before this Court. However, the trial Court orally directed the Advocate
Commissioner to conclude the auction sale on 20th itself and to deposit the
amount in the Court.
17. Then, on 20.11.2001, this revision has been filed and this Court
passed an order of stay on 22.11.2001. On behalf of the first respondent/the
Caveator, A.K.Kumarasamy requested time for filing counter. Permitting the
petitioners to take private notice on the second respondent, this Court
adjourned the matter to 3.12.2001. On 22.11.200 1, it was not intimated to
this Court by the counsel for the first respondent that it was sold on
20.11.2001 itself. However, it is now brought to the notice of this Court
that as per the oral direction by the trial Court on 19.11.2001, the auction
sale was held on 20.11.200 1 and the amount of Rs.22,00,000/- was deposited
after deducting the sum of Rs.66,328/- to clear the warehouse charges and the
bill for paper publication. On this representation made by the counsel for
the first respondent, the commission report filed by the Advocate Commissioner
has been called for from the trial Court. Accordingly, the report was
received. On perusal of the same, it is noticed that the sale proceeds of
Rs.22,86,328/- was collected on 21.11.2001 and after deducting the other
charges, Rs.22,00,000/- was deposited on 23.11.2001. As a matter of fact, the
order of stay was directed to be communicated through wire to the trial Court
on the very same date, i.e. on 22.11.2001.
18. The fact that the trial Court orally directed the Advocate
Commissioner to finish the sale on 20th itself in spite of the fact that the
petitioners filed a petition before the trial Court intimating that they
wanted to go to High Court by filing a revision and the act of the Advocate
Commissioner in hurriedly finishing the auction process and selecting the
highest bidder and collecting the sale amount from the said highest bidder on
20.11.2001 itself and Advocate Commissioner deposited the amount on 23.11.2001
despite the stay order dated 2 2.11.2001 by this Court would indicate that it
does not sound well and on the other hand, the trial Court on some reason or
the other wanted to see that the goods must be sold hurriedly.
19. It is to be noted in this context that the impugned order dated
6.11.2001 would show that the Advocate Commissioner was given one month time
to sell the suit goods directing to file the report on 6.12.2 001. Having
given one month time and fixed the date to file the report as 6.12.2001, it is
not known as to why the trial Court had to give oral direction to the Advocate
Commissioner on 19.11.2001 to finish the sale on 20.11.2001 itself.
Strangely, it is noticed from the Commissioner’s report that the report was
filed only on 13.2.2002.
20. The questions which have not been answered by the counsel for the
respondent in this case are two fold:
(1) Why the trial Court having decided to consider the question of
maintainability of the suit as a preliminary issue should appoint an Advocate
Commissioner to sell the goods holding that all the issues would be decided
only at the time of conclusion of trial and as such, it would take long time?
(2) Having given one month time through the impugned order dated 6.1
1.2001, why the trial Court directed the Advocate Commissioner to finish the
sale on 20.11.2001 itself, that too orally, and that too when the petitioners
filed an application on 19.11.2001 before the trial Court seeking for stay of
the order and informed the Court that they intend to file a revision?
21. The mere fact that this sale was over on 20.11.2001 itself even
before the stay order passed by this Court on 22.11.2001 would not be a ground
to ask the Court to hold that the revision is infructuous and as such, this
Court would not go into the merits of the impugned order. If such a
contention is accepted, it would amount to abdication of duty by the Court by
shutting its eyes over the impugned order which is totally unjustified.
22. Even according to the plaintiff, the petitioners are the owners.
It is settled law that once this Court comes to the conclusion that the trial
Court has committed a patent error and the order is liable to be set aside, it
is the duty of the trial Court to put back the parties into their original
position. It is the contention of the plaintiff that he is an agent of the
petitioners to receive the goods. The petitioners have produced the documents
Exs.B6 and B7 terminating the said agency and requesting the Warehouse
Corporation to hand over the goods to the owners, the petitioners.
23. As correctly pointed out by the counsel for the petitioners, the
plaintiff, the first respondent herein though claims to be an authorised agent
as he is a creditor, has not chosen to mention what was the actual amount lent
to the petitioners by him. In those circumstances, this Court feels that
through the impugned order ordering sale through the Advocate Commissioner,
the owners of the goods, viz., the petitioners have been deprived of their
valuable right in the goods belonging to them.
24. On a scrutiny of the entire materials placed before this Court,
it is obvious that the trial Court, as indicated above, has hastened to pass
orders for sale hurriedly even though the petitioners were prepared to pay the
hire charges and take back the goods from the Warehouse Corporation. The way
in which the two impugned orders expressing two contradictory views have been
passed on the same day and the nature of speedy oral orders directing to sell
the goods on 20.11.2001 itself and entertaining the sale deposit on
23.11.2001, even though the stay order has been passed by this Court on
22.11.2001, would prima facie show that the trial Court wanted to pass some
orders in order to defeat the rights of the petitioners/defendants 2 and 3.
25. Therefore, the impugned orders are set aside. The trial Court is
directed to put back the parties into their original position. The trial
Court is further directed to decide the preliminary issue by giving
opportunities to the parties, as expeditiously as possible, in pursuance of
the order of the trial Court in I.A.No.924 of 2001.
26. Before parting with this case, this Court cannot but express its
displeasure over the conduct of the trial Court Judge in having hurriedly
passed the orders impugned, resulting in the injustice to the interest of the
petitioners, which I am unable to hold bona fide. The Registry is directed to
keep a copy of this order in his confidential file.
27. With the above observations, the civil revision petition is
allowed. Consequently, C.M.P.No.19550 of 2001 is closed.
Index: Yes
Internet:Yes
mam
To
1) The I Additional Subordiante Judge, Erode.
2) -do- through the Principal District Judge, Erode.