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K. Venkatesh & Others v/s Dr. K. Balasundaram & Others

    C.R.P. Nos. 3084 of 2016 & 207 of 2022 & CMP. Nos. 15727 of 2016 & 1059 of 2022

    Decided On, 06 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE R.N. MANJULA

    For the Petitioners: T.M. Hariharan, Advocate. For the Respondents: R1, V. Lakshminarayanan, R2 to R5, K.A. Mariappan, Advocates.



Judgment Text

(Prayer in CRP.3084 of 2016 : Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the fair and decreetal order of III Additional District and Sessions Court, Coimbatore dated 13.07.2016 in I.A.No.194 of 2016 in OS.No.581 of 2012 and to order the said application as prayed for.

In CRP.207 of 2022 : Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the Docket Order of III Additional District and Sessions Court, Coimbatore dated 29.11.2021 in IA.Sr.No.4370 of 2021 in OS.No.581 of 2012 and to order the said application as prayed for.)

Common Order:

1. CRP.No.3084 of 2016 has been preferred against the fair and decreetal order of III Additional District and Sessions Court, Coimbatore dated 13.07.2016 in I.A.No.194 of 2016 in OS.No.581 of 2012.

2. Similarly, CRP.No.207 of 2022 has been preferred challenging the Docket Order of the same Third Additional District and Sessions Court, Coimbatore dated 29.11.2021 in I.A.SR.No.4370 of 2021 in OS.No.581 of 2012.

3. Since the issue involved and the parties to the litigations are one and the same, both the revision petitions are taken up together and disposed of by this common order.

4. The revision petitioners in CRP.No.3084 of 2016 are defendants 2, 6 & 7 in the said suit. The 1st respondent/plaintiff filed the said suit (i) for partition of the suit properties into three equal shares by metes and bounds and to allot one such share to the plaintiff, (ii) for declaration that the judgement and decree dated 17.03.2004 in OS.No.828 of 2003 on the file of the District Munsif Court, Coimbatore is null and void and (iii) for permanent injunction. During the pendency of the said suit, the revision petitioners herein filed an Interlocutory application in I.A.No.194 of 2016 to stay the trial in the said suit till the disposal of the earlier proceedings pending (i) in T.A.No.750 of 2002 before the Debts Recovery Tribunal, Coimbatore, (ii) in AIR No.703 of 2015 filed before the Debt Recovery Appellate Tribunal, Chennai and (iii) in CP.No.33 of 2000 and C.P.No.7 of 2009 filed before the Company Law Board. The said application was dismissed by order dated 13.07.2016. Aggrieved over that, CRP.No.3084 of 2016 has been preferred.

5. The very same revision petitioners filed another interlocutory application in I.A.SR.No.4370 of 2021 to defer the trial of the said suit till the disposal of CRP.No.3084 of 2016 and the said application was returned on 29.11.2021 with the following endorsement:

“This Court has acted as per the mandate of Hon'ble Apex Court in Asian Resurfacing of Road Agency case. Hence, this petition is returned.”

Aggrieved over the said return endorsement, the other civil revision petition in CRP.No.207 of 2022 has been preferred.

6. Heard the submissions made by the learned counsel appearing on either side and perused the materials available on record.

7. The learned counsel for the revision petitioners submitted that the 1st respondent/plaintiff filed the said suit for partition of the alleged 1/3rd share in the suit properties, which are the properties owned by his father late G.Kandasamy; the plaintiff, defendants 1 and 2 and their brother one Gurumurthy (since deceased) are the children of late G.Kandasamy; the 1st respondent herein filed the said suit by stating that G.Kandasamy was managing the properties as Kartha of the joint family; during the life time of his father G.Kandasamy, he held shares in various companies; he also offered some of the properties and shares held in his name as securities for the financial assistance received for running his company; while the family members had partitioned the family properties by virtue of a partition deed dated 30.03.1972, some of the immovable properties and shares held in the companies and other income derived from the agricultural lands etc., were not included;

7.1. Despite the 1st respondent/plaintiff filed the said suit for partition on the above grounds, even prior to filing of the said suit, proceedings have been initiated before the Debts Recovery Tribunal with regard to the loans availed by the father of the plaintiffs and defendants 1 & 2 from banks and other financial institutions; however, the 1st respondent/ plaintiff was not willing to discharge his portion of liability towards the said loans; in fact, the 1st respondent/plaintiff filed the company petitions in C.P.No.33 of 2000 and C.P.No.7 of 2009 against the revision petitioners and other defendants before the Company Law Board, Chennai seeking certain reliefs; unless the proceedings before the Company Law Board and the Debts Recovery Tribunal are disposed and the actual shares available for partition are known, no decree for partition can be granted effectively; hence, the proceedings in the suit should be stayed till the earlier proceedings initiated before the Debts Recovery Tribunal and the Company Law Board are finally decided.

8. In contrast, the learned counsel for the 1st respondent/plaintiff submitted that the plaintiff filed the suit seeking certain important reliefs; as far as the company's debts are concerned, the properties of the company are there and some of the directors have given personal guarantee; so, before exhausting the company's properties for the purpose of recovering the loans, the suit properties need not be disturbed and further, for the proceedings against the father of the plaintiff and defendants 1 & 2 namely G.Kandasamy, his estate alone is liable and the shares of the rest of the parties are not liable; hence, the debt recovery proceedings cannot be treated as a clog over the proceedings and hence, no stay should be granted.

8.1. According to the learned counsel for the 1st respondent, the suit has been filed seeking the relief of partition and declaration that the judgement and decree dated 17.03.2004 made in OS.No.828 of 2003 on the file of the District Munsif Court, Coimabatore is null and void and permanent injunction; the suit properties comprised of shares held in four companies along with certain immovable properties, which are said to have been belonging to the deceased G.Kandasamy; there is no dispute with regard to the legal representatives of the deceased G.Kandasamy and hence, there may not be difficulty in allocating the shares of the respective parties in the suit properties; since the proceedings pending before the Debts Recovery Tribunal and the Company Law Board have got nothing to do with the suit properties, the decision of the Debts Recovery Tribunal or the Company Law Board will not bind the suit properties; the cause of action and the nature of proceedings pending before the Debts Recovery Tribunal are, in no way, relevant to the suit for partition filed by the 1st respondent before the civil Court.

9. In reply, the learned counsel for the petitioners submitted that in order to stay a proceeding, the connected proceedings need not always be a suit and it can be even some other proceedings. In support of his above contention, the learned counsel for the petitioners cited the judgement rendered by the Hon'ble Division Bench of this Court in the case of Krishnan and another Vs. Krishnamurthi and others [reported in AIR 1982 MADRAS 101] wherein it has been held that the civil Court has jurisdiction to stay the trial of a suit pending before it by invoking its inherent powers under Section 151 during the pendency of a proceeding before the Record Officer, but the exercise of such power would depend on the facts and circumstances of each case and on the finding whether the ends of justice called for such a stay or in order to prevent the abuse of process of the court, the stay should be granted. By citing the above judgement, it is claimed by the learned counsel for the revision petitioners that even if the application in IA.No.194 of 2016 does not meet the requirements of Section 10 of the Civil Procedure Code, in view of the pendency of other proceedings, stay ought to have been granted by the Court below.

10. It is correct that the the revision petitioners filed I.A.No.194 of 2016 under Section 10 read with Section 151 of the Civil Procedure Code. It is also correct that in the interest of justice, the proceedings, other than the suit, which have different cause of action, but have some impact on the civil suit pending before a Court, can be stayed. But, in the case in hand, the proceedings pending before the Debts Recovery Tribunal and the Company Law Board have got no relevance to the relief of partition claimed by the 1st respondent/plaintiff. The job of the trial Court in a partition suit is to define the extent of entitlement of the parties and nothing else. If any of the suit properties is found to have got any relevance to the proceedings before the Debts Recovery Tribunal and the Company Law Board, the entitlement of the shares of the parties will only depend on the proven claim made before the Debts Recovery Tribunal or the Company Law Board by binding the suit properties.

11. Just because the reliefs are sought in the suit, that will not, in any way, render the proceedings filed before the Debts Recovery Tribunal or the Company Law Board a futile one. So, the proceedings before the Debts Recovery Tribunal or the Company Law Board shall be laid in accordance with law irrespective of the decision that may be rendered in OS.No.581 of 2012. As already stated, if the suit properties are found to have any relevance to the earlier proceedings pending before either the Debts Recovery Tribunal or the Company Law Board, the entitlement of the parties will be subject to such liability.

12. Since the reasons stated by the revision petitioners to stay the proceedings in OS.No.581 of 2012 are not satisfactory and the s

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tay is not necessary, the learned trial Judge has rightly chosen to dismiss the application in IA.No.194 of 2016, which, in my opinion, does not warrant any interference. The other application in I.A.SR.No.4370 of 2021 has been filed to defer the trial of the suit in OS.No.581 of 2012 till the disposal of CRP.No.3084 of 2016. In my considered view, a prayer, which has to be sought before this Court, cannot be granted by the Trial Court. The way, in which, the prayer was sought would only show that the subsequent application filed is an abuse of process of the Court. Further, in view of the disposal of CRP.No.3084 of 2016, the application in IA.SR.No.4370 of 2021 has become infructuous. In the result, both the Civil Revision Petitions are dismissed. The impugned order dated 13.07.2016 passed in I.A.No.194 of 2016 on the file of learned III Additional District and Sessions Judge, Coimbatore is confirmed. The return endorsement dated 29.11.2021 made by the Court below in I.A.SR.No.4370 of 2021 stands confirmed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
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