Uniworld Logistics Pvt Ltd vs Indev Logistics Pvt Ltd

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)

JUDGMENT

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 Signature Not Verified Digitally signed by 2016 and also an application under Order VII Rule Neetu Khajuria Date: 2024.07.12 17:31:41 IST

11 CPC registered as Application No.3666 of 2016 in Reason:

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superseded by another agreement dated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

said claim. This application was filed on 21st 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

respondent on 30th 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.

Gangabisen Manik Lal Silchi and another1 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

Constructions Pvt. Ltd 2 ., 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

SLP (CIVIL) D. NO. 14716 OF 2017 Page 11 of 11