Full Judgment Text
2024 INSC 515
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………….……. OF 2024
( Arising out of SLP (Civil) No……………………….2024)
@Diary No.14716 of 2017)
UNIWORLD LOGISTICS
PVT. LTD. ...APPELLANT(S)
VERSUS
INDEV LOGISTICS
PVT. LTD ...RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. Delay, if any, is condoned.
2. Leave granted.
3. This appeal assails the correctness of the judgment
and order dated 24.11.2016 passed by the High
Court of Judicature at Madras whereby, it dismissed
the civil revision registered as CRP(PD) No.1872 of
2016 and also an application under Order VII Rule
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2024.07.12
17:31:41 IST
Reason:
11 CPC registered as Application No.3666 of 2016 in
SLP (CIVIL) D. NO. 14716 OF 2017 Page 1 of 11
Commercial Suit No.323 of 2016. Aggrieved by the
same, the defendant in both the proceedings is
before this Court.
4. Brief facts giving rise to the present appeal is as
follows:
A Leave and License agreement was originally
entered into between the appellant and the
respondent on 25.11.2008. This agreement was
superseded by another agreement dated
01/12/2010 whereby the appellant became a
licensee in respect of a warehouse on a monthly
license fee of Rs.30 lakhs with an escalation clause.
As there was default in payment of storage charges,
the respondent gave a legal notice dated 27.11.2014
terminating the license, claiming dues towards
storage charges, damages and directing the
appellant to vacate the warehouse premises within
two months. The appellant replied to the said notice
on 18.12.2014 denying the dues and also raising
some objections regarding extent of the building
SLP (CIVIL) D. NO. 14716 OF 2017 Page 2 of 11
mentioned in the notice. The respondent instituted
a suit for permanent injunction and also to hand
over vacant possession in the Court of District
Munsif, Sriperumbudur registered as O.S. No.101
of 2015. The respondent in the plaint of the above
suit had clearly mentioned that there were
outstanding dues and arrears of storage charges of
Rs.2,04,68,464/-. It was further specifically
mentioned that respondent-plaintiff reserves its
rights to claim against the defendant-appellant for
recovery of arrears and also damages due to the
illegal use and occupation of the Schedule-B
property.
5. After about seven months, the appellant filed a
commercial suit before the Madras High Court
registered as C.S. No.914 of 2015 against the
respondent and also Small Industries Promotion
Corporation of Tamil Nadu for the relief of
declaration that the respondent had given only
1,03,522 sq. ft. area of the factory shed and not
SLP (CIVIL) D. NO. 14716 OF 2017 Page 3 of 11
1,50,000 sq. ft. under the Leave and License
agreement dated 25.11.2008.
6. On 24.11.2015, the respondent filed an application
under Order II Rule 2(3) read with Section 151 CPC
in its pending O.S. No.101 of 2015 seeking leave to
sue the appellant by way of a separate suit claiming
arrears of storage charges, warehouse charges and
damages for illegal use and occupation beyond the
period allowed in the notice dated 27.11.2014. The
said application registered as IA No.2001 of 2015,
was allowed by the District Munsif Court on the
same day. However, the High Court, upon revision
by the appellant, set aside the said order and
remanded the matter back to the Trial Court for a
fresh decision after affording due opportunity of
hearing to the defendant to the suit i.e. the appellant.
This order was passed by the High Court on
28.01.2016. After remand, the District Munsif Court,
by a detailed reasoned order dated 15.04.2016,
again granted leave under Order II Rule 2(3) CPC to
SLP (CIVIL) D. NO. 14716 OF 2017 Page 4 of 11
the respondent to file a separate suit against the
appellant. Aggrieved, the appellant challenged the
same before the High Court under Article 227 of the
Constitution, which was registered as CRP (PD)
No.1872 of 2016.
7. In the meantime, the respondent filed a Commercial
Suit No.323 of 2016 before the Madras High Court
against the appellant for recovery of arrears of
storage charges, warehouse charges and damages
for an amount of Rs.8,42,88,761/-. In the said C.S.
No.323 of 2016, the appellant filed an application
being IA No.3666 of 2016 under Order VII Rule 11(d)
read with Order II Rule 2 of CPC for rejection of the
st
said claim. This application was filed on 21 July,
2016.
8. The civil revision as also the application under Order
VII Rule 11 CPC were heard together by the High
Court and vide judgment and order dated
24.11.2016, the High Court dismissed both the civil
revision as also the application. Aggrieved by the
SLP (CIVIL) D. NO. 14716 OF 2017 Page 5 of 11
same, the present appeal has been filed.
9. In the meantime, the appellant vacated the
warehouse and handed over the keys to the
th
respondent on 30 September, 2016. Accordingly,
the respondent on 11.04.2017 withdrew its O.S.
No.101 of 2015 as possession had already been
delivered to it.
10. Further, the appellant filed another Commercial Suit
No.160 of 2017 before the Madras High Court
claiming refund of security deposit, additional
deposit, penalty paid to the University Board, cost of
improvements and damages amounting to
Rs.5,77,03,621/- against the respondent.
11. From the above, it is noticeable that both the sides
preferred two suits each, however, one of the suits
i.e. Suit No.101 of 2015 has already been withdrawn
by the respondent and, as such, three suits remain
pending which are all commercial suits pending
before the Madras High Court inter se parties.
12. It would be worthwhile to mention here before
SLP (CIVIL) D. NO. 14716 OF 2017 Page 6 of 11
proceeding any further that the Trial Court as also
the High Court had found that both the suits were
filed based upon different causes of action. The High
Court had further found that the respondent had
taken leave for instituting the second suit against the
appellant under Order II Rule 2(3) CPC. It also found
that the respondent had specifically stated in the
plaint of the first suit that there were claims for
damages and warehouse charges to be recovered for
which, it reserved its claim for recovery of the same.
At no stage had the respondent given up its claim,
nor was there any omission to claim the relief of
recovery. It was neither a case of relinquishment of
claim or omission. The High Court has dealt with in
great detail the object of Order II Rule 2(3) CPC. It
has also discussed the law on the point. It had
thereafter arrived at the conclusion that neither
there was infirmity in the order of the Trial Court
granting leave to file the second suit for recovery of
arrears, nor was there any merit in the application
SLP (CIVIL) D. NO. 14716 OF 2017 Page 7 of 11
under Order VII Rule 11 CPC filed by the appellant.
13. We have heard Sri Shyam Divan, learned Senior
Counsel for the appellant and Sri Aditya Kumar
Choudhary, learned counsel appearing for the
respondent and have also perused the material on
record.
14. The submissions advanced on behalf of the appellant
by the learned Senior Counsel are summarized as
under:
(i) The commercial suit bearing C.S. No.323 of 2016
was clearly barred by Order II Rule 2(2) CPC.
(ii) The Courts below failed to distinguish between
relinquishment of claims and omissions of relief. The
High Court wrongly relied upon the Full Bench
Judgment of the Bombay High Court in the case of
Shankar Lal Laxminarayan Rathi and Ors. Vs.
1
Gangabisen Manik Lal Silchi and another as the
said judgment had no applicability in the facts of the
1
AIR 1972 Bom.326 (FB)
SLP (CIVIL) D. NO. 14716 OF 2017 Page 8 of 11
case.
15. On the other hand, Shri Choudhary, learned counsel
for the respondent submitted that the judgment and
order of the High Court does not suffer from any
infirmity warranting any interference by this Court.
Further, strong reliance was placed upon a judgment
of this Court in the case of Bharat Petrolium
Corporation Ltd. And another Vs. ATM
2
Constructions Pvt. Ltd . , wherein under similar
facts, this Court held that a second suit for arrears
of rent and damages would not be barred under
Order II Rule 2 CPC.
16. Para 18 of the above said judgment is reproduced
hereunder:
“18. In view of the enunciation of law, as
referred to above, suit for possession and suit
for claiming damages for use and occupation of
the property are two different causes of action.
There being different consideration for
adjudication in our opinion, second suit filed by
the respondent claiming damages for use and
2
2023 SCC Online SC 1614
SLP (CIVIL) D. NO. 14716 OF 2017 Page 9 of 11
occupation of the premises was maintainable.
The application filed by the appellants for
rejection of the plaint was rightly dismissed by
the Courts below. However, the appellants are
well within their right to raise the issue, if any
part of the claim in the suit is time-barred but
the entire claim cannot be said to be so.”
17. The case in hand stands on a better footing,
inasmuch as, the plaintiff-respondent had
specifically reserved its rights in the first suit
regarding claim against warehousing charges,
damages for illegal use and occupation etc. and
further had applied for leave before the Trial Court
for filing a separate suit, which leave had been
granted. There was neither any relinquishment at
any stage, nor omission to claim relief. Both the
causes of action being separate, the second suit was
clearly maintainable. The appellant, who is facing
recovery of more than Rs.8 crores, is unnecessarily
trying to delay the progress in the suit, which is
pending since 2016.
SLP (CIVIL) D. NO. 14716 OF 2017 Page 10 of 11
18. In view of the above discussion, we are of the firm
view that the impugned order does not suffer from
any infirmity. The judgment in the case of Bharat
Petroleum Corporation Ltd. (supra)
relied upon by
the respondent squarely applies in the facts of the
present case and we do not find any reason to take
a different view.
19. The appeal lacks merit and is, accordingly,
dismissed.
20. Pending applications, if any, are disposed of.
…………………………………..……………J.
(VIKRAM NATH)
…………………………………………………J.
(PRASANNA BHALACHANDRA VARALE)
NEW DELHI
JULY 10, 2024
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