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Marimuthu Udayar and ors. Vs. Rajamanickam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ253
AppellantMarimuthu Udayar and ors.
RespondentRajamanickam
Cases ReferredRaghavan Pattar v. Arumugham
Excerpt:
- - that application was opposed by the plaintiff on the ground that the suit being one for specific performance of an agreement for sale or in the alternative for the return of the advance paid as well as damages for breach of contract cannot be stayed under the provisions of section 4 of that act, as the suit is not for recovery of debt as defined in the said act. 1604 of 1976 contends that the suit is not only for specific performance of the agreement of sale, but also for the return of the advance paid as well as damages for breach of contract, that the suit is also to recover the money due by an agriculturist, and therefore, the suit has to be stayed under the provisions of section 4 of the tamil nadu act x of 1975 as the petitioners are agriculturists......suit on condition that the two sets of defendants should pay a sum of rs. 1,000 each towards the suit claim and also deposit costs of the suit into the trial court on or before 1st april, 1976 and directed that in default of compliance, the petitions to set aside the ex parte decree would stand dismissed. aggrieved against the order of the lower court imposing the above conditions for setting aside the ex parte decree in the suit, the said two sets of defendants have filed c.m.a. nos. 235 and 236 of 1976.4. the learned counsel for the petitioner in. c.r.p. no. 1604 of 1976 contends that the suit is not only for specific performance of the agreement of sale, but also for the return of the advance paid as well as damages for breach of contract, that the suit is also to recover the money.....
Judgment:
ORDER

G. Ramanujam, J.

1. Since all these proceedings are between the same parties, they can be disposed of together.

2. The respondent who is the same in all these cases, filed a suit O.S. No. 339 of 1974on the file of the Sub-Court, Salem, against five defendants for specific performance of an agreement of sale of certain immovable property, or in the alternative for return of the advance paid by him as also the damages for breach of the contract. The said suit was being resisted by all the defendants. When the suit was ripe for trial, defendants 1 and 2 filed an application under Section 4 of Tamil Nadu Act X of 1975 for stay of the suit on the ground that they are entitled to the benefits of the said Act, and therefore, the suit ought to be stayed till the currency of the said Act. That application was opposed by the plaintiff on the ground that the suit being one for specific performance of an agreement for sale or in the alternative for the return of the advance paid as well as damages for breach of contract cannot be stayed under the provisions of Section 4 of that Act, as the suit is not for recovery of debt as defined in the said Act. The Court below accepted the stand taken by the plaintiff that the suit is not for recovery of a debt due by a person entitled to the benefits of the said Act, and therefore, held that it cannot be stayed under Section 4. Against the said order of the lower Court rejecting their applications for stay, defendants 1 and 2 have filed C.R.P. No. 1604 of 1976.

3. Subsequent to the dismissal of the applications for stay on 30th October, 1975, the suit was posted for trial on 6th December, 1975. On that day none of the defendants or their counsel were present in Court. The Court, therefore, adjourned the suit finally for trial, to 8th December, 1975. On that day also the defendants and their counsel were absent. The Court, therefore, decreed the suit ex parte. Subsequently, defendants 1 and 2 filed I.A. No. 20 of 1976 to set aside that ex parte decree, and defendants 3 to 5 filed I.A. No. 21 of 1976 for the same purpose. The case of defendants 1 and 2 was that on the date of the trial, their counsel went to Tiruchy to attend some marriage, and therefore he could not be present in Court for the trial of the suit. They did not, however, give any explanation as to why they could not be present in Court. Defendants 3 to 5 in their application for setting aside the ex parte decree have stated that they had noted the date of the trial wrongly as 16th December, 1975 instead of 6th December, 1975, that because of that mistake they could not be present in Court on 8th December, 1975, and that their non-appearance in Court on the date of the trial was purely due to an accidental mistake. The lower Court felt that the explanation, given by the defendants 1 and 2 on the one hand, and defendants 3 to 5 on the other, were not quite convincing; but nonetheless, they had to be given an opportunity to take part in the trial of the suit. In that view, the lower Court set aside the ex parte decree passed in the suit on condition that the two sets of defendants should pay a sum of Rs. 1,000 each towards the suit claim and also deposit costs of the suit into the trial Court on or before 1st April, 1976 and directed that in default of compliance, the petitions to set aside the ex parte decree would stand dismissed. Aggrieved against the order of the lower Court imposing the above conditions for setting aside the ex parte decree in the suit, the said two sets of defendants have filed C.M.A. Nos. 235 and 236 of 1976.

4. The learned Counsel for the petitioner in. C.R.P. No. 1604 of 1976 contends that the suit is not only for specific performance of the agreement of sale, but also for the return of the advance paid as well as damages for breach of contract, that the suit is also to recover the money due by an agriculturist, and therefore, the suit has to be stayed under the provisions of Section 4 of the Tamil Nadu Act X of 1975 as the petitioners are agriculturists. Even assuming that the petitioners in the civil revision petition are agriculturists as alleged by them, the question, is whether the suit is one for recovery of a debt due by an agriculturist as defined in Section 2 (c) of the said Act.

5. Section 2 (c) defines a debt as any sum of money which a person is liable to pay under contract (express or implied) for consideration received. The claim for return of the advance, or damages for breach of a contract cannot be said to be money due under a contract entered into between the parties for consideration received. A claim for damages cannot also be treated as a claim for money due under a contract. As a matter of fact, the claim for damages is based on a breach of a contract, not on the basis of a contract. I am therefore, of the view that the claim for a return of the advance paid under an agreement of sale, as also for damages for breach of contract, will not come within the definition of 'debt' as defined under Section 2 (c) of the Act. A similar question came up for consideration in Ponnammal v. Shanmugasundaram C.M.A.No. 114 of 1976 before this Court and this Court held after considering the decisions rendered under analogous provisions in allied statutes, that the expression 'any sum of money which a person is liable to pay under a contract, (express V implied) for consideration received' occurring in Section 2 (c) will only refer to a contract of borrowing, and therefore, a suit for recovery of the damages for breach of a contractor for the return of the advance paid or for recovery of mesne profits for wrongful occupation of the land etc. cannot be taken to be a suit for recovery of a debt, and therefore, such suit's cannot be stayed under Section 4 of the Tamil Nadu Act X of 1975 in Arunagiri Chit Fund by Partner v. Md. Haneef and Ors. C.R.P.No. 1649 of 1976 Suryamurthy, J., has held that a Suit for recovery of amount executed on payment of future instalments is not a suit for recovery of a debt as deigned in Section 2 (c) of the Tamil Nadu Act XV of 1976 which corresponds to Section 2(c) of the Tamil Nadu Act X of 1976. The learned Judge has also referred to an earlier decision of a Division Bench in Raghavan Pattar v. Arumugham : AIR1935Mad385 , where a distinction has been made between a contract of borrowing and a contract of sale, in support of his view that the amount due as a result of a breach of a contract of sale will not come within the definition of 'debt'. I have, therefore, to uphold the order of rejection of the application for stay, made by the lower Court.

6. The learned Counsel for the appellants in C.M.A.Nos. 235 and 236 of 1976 contends that the conditions imposed by the lower Court for setting aside the ex parte decree are too onerous and that the imposition of such conditions virtually takes away the benefit given by the Court by setting aside the ex parte decree and giving them a chance to defend the suit. As already stated, the lower Court has not only ordered the costs of the suit to be deposited, but also directed the payment of Rs. 1,000 by each of the two sets of defendants towards the suit claim. According to the learned Counsel for the appellants, the direction to pay Rs. 1,000 each towards the claim made in the suit is not justified by the circumstances of this case. I am inclined to think that the imposition of the condition by the lower Court that each set of defendants should pay a sum of Rs. 1,000 is not justified in this case, in addition to the direction regarding the deposit of costs. Though the lower Court has got the power to impose such conditions as it thinks fit for setting aside the ex parte decree, I am of the view that the defendants will be put to hardship if the condition for deposit of Rs. 2,000 towards the suit claim is insisted upon. While retaining the condition relating to the deposit of costs of the suit by the defendants, the condition relating to the payment of Rs. 1,000 by each of the defendants towards the suit claim is therefore, set aside. The defendants are given time for depositing the costs of the suit within four weeks from this date as the time given by the lower Court has already expired. However, I feel that in the circumstances of this case the plaintiff-respondent is entitled to his costs in the appeal as he is not to blame for anything that has happened, either passing of the ex parte decree, or setting aside of the ex parte decree on certain conditions. The appellants in the civil miscellaneous appeals, are, therefore, directed to pay the plaintiff-respondent the costs of the appeal which I fix at Rs. 50 for each appeal. This amount has to be paid within two weeks.

7. The civil revision petition is dismissed, but without costs.


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