Sunny John John Anthraper vs Shaji K.Mthew on 10 August, 2010

Kerala High Court
Sunny John John Anthraper vs Shaji K.Mthew on 10 August, 2010




WP(C).No. 9668 of 2010(O)

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.N.SUBRAMANIAM

                For Respondent  :SRI.S.SREEKUMAR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :10/08/2010

 O R D E R
                   THOMAS P JOSEPH, J.


                     W.P.C.No.9668 of 2010


              Dated this 10th day of August, 2010


Ext.P3, order dated 08-01-2010 on I.A.No.97 of 2009 in

O.S.No.1100 of 2009 of the court of learned Sub Judge,

Ernakulam is under challenge in this writ petition at the instance

of defendant in the suit. Respondent, one Shaji K. Mathew filed

the suit against petitioner for recovery of balance advance sale

consideration pursuant to an agreement for sale (Ext.P1).

Petitioner/defendant contended that he had no transaction with

M/s. V.K.L Plantation Pvt. Ltd and V.K.L Properties Pvt. Ltd.

which are shown to be the company represented by Shaji K.

Mathew in the plaint. Challenging maintainability of the suit on

the ground that petitioner has no privity of contract with the said

companies he filed I.A.No.97 of 2009 (Ext.P2) to hear

maintainability of the suit. Learned Sub Judge passed Ext.P3,

order stating that signature of petitioner is seen in Ext.P1,

agreement for sale dated 08-04-2006, there is acceptance of

Rs.350 lakhs as advance sale consideration and hence it cannot

be said that petitioner has no privity of contract with the plaintiff.

Observing so, application was dismissed. Learned counsel for

W.P.C.No.9668 of 2010
: 2 :

petitioner contends that question raised in Ext.P2, application

was not considered by the learned Sub Judge and instead,

irrelevant matters are stated to dismiss Ext.P2, application. It is

alternatively contended by learned counsel that in case evidence

on the question urged by petitioner was necessary, learned Sub

Judge ought to have recorded evidence before disposing of

Ext.P2, application.

2. I have heard learned counsel for respondent as well.

Learned counsel for respondent asserts that in the agreement

and plaint respondent has joined in his individual capacity and

not as representing companies referred to in the plaint.

3. In Ext.P1, agreement respondent describes him as

Shaji K. Mathew, S/o. K. C. Mathew aged 32 years, Manager

Middle East Hotel Company Pvt.Ltd. while in the plaint plaintiff is

described as Shaji K. Mathew giving his residential address. Of

course, in the body of the plaint it is stated that he is the

Director of M/s. V.K.L Plantation Pvt. Ltd and V.K.L Properties

Pvt. Ltd. It is from the above descriptions that learned counsel for

respondent has contended that agreement and plaint are in

individual capacity of respondent and not as representing any

company as the address of respondent in the plaint and Ext.P1,

W.P.C.No.9668 of 2010
: 3 :

agreement states. Learned counsel for petitioner in response

produced certain documents which according to him would show

that it was the company referred to in Ext.P1, agreement which

had authorised respondent to negotiate and enter into Ext.P1,


4. I am persuaded to think that these matters require

evidence to decide whether respondent had entered in the

agreement and sued petitioner in his individual capacity or it was

on behalf of companies referred to in Ext.P1, agreement and

plaint. Under Order 14 Rule 2 of the Code of Civil Procedure (for

short, “the Code”), an issue can be heard and disposed of as a

preliminary issue if it relates to jurisdiction of the court or bar to

the suit created by any law provided it is based on an issue of law

only. This court in Mathew Vs Allen George (2006(4) KLT

S.N.11 (Page No.8)) has stated that once it is seen that

evidence is to be recorded, issue will not fall under sub rule (2) of

Order 14 Rule 2 of the Code. In the present case having heard

counsel on both sides I am persuaded to think that it requires

evidence to decide the issue raised. In that situation and also

since it is without referring to the contention raised by petitioner

that Ext.P3 order was passed, that order is liable to be set aside.

W.P.C.No.9668 of 2010
: 4 :

Having regard to the facts and circumstances of the case it is

only appropriate that contention raised by petitioner are heard

and decided along with the suit.

Resultantly this writ petition is allowed. Ext.P3, order is set

aside. It is directed that if appropriate contention is raised in the

written statement, learned Sub Judge shall raise an issue

regarding maintainability of the suit in the way it is contended by

petitioner and that issue be tried and decided along with the suit.


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