IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9668 of 2010(O) 1. SUNNY JOHN JOHN ANTHRAPER,S/O.LATE ... Petitioner Vs 1. SHAJI K.MTHEW,S/O.K.C.MATHEW,ANCHORAGE, ... 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 JUDGMENT
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
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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
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
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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.
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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.
(THOMAS P JOSEPH, JUDGE)