IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 OP(C).No. 818 of 2010(O) ------------------------ AGAINST THE ORDER DATED 28/10/2010 IN IA.62/2005 IN OS.1/2004 of DISTRICT COURT, KAVARATHY .................... PETITIONER: -------------------- M K KOYA AGED 57 YEARS MALMIKAKKADA HOUSE KALPENI ISLAND, LAKSHADWEEP-682 555 BY ADV. SRI.N.M.MADHU RESPONDENTS: --------------- 1. UNION TERRITORY OF LAKSHADWEEP KAVARATTI REP. BY IS PORT OFFICER KAVARATTI, LAKSHADWEEP 2. THE SHIPPING CORPORATION OF INDIA LTD SHIPPING HOUSE, 245-MADAME CAMA ROAD MUMBAI-21 REP BY ITS GENERAL MANAGER SRI. S RADHAKRISHNAN STANDING COUNSEL FOR LAKSHADWEEP THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.818 of 2010 --------------------------------------- Dated this 23th day of November, 2010 JUDGMENT Respondent No.1 appears through counsel. Notice to respondent No.2 is dispensed with in view of the order I propose to pass. 2. Defendant in O.S.No.1 of 2004 of the court of learned District Judge, Kavaratti and petitioner in I.A.No.62 of 2005 is the petitioner before me. That is a suit filed by the respondents for recovery of what they called, arrears of rent from petitioner for conducting canteens in three ships conducting service between the main land and the Island of Lakshadweep. According to the petitioner, though the original contract was for a period of two years from 13-12-1999 with a stipulation that it could be extended for a further period of six months, he was under compulsion to run the canteen until 30-11-2003. Respondents have sought for recovery of arrears of rent on the strength of agreement executed between petitioner and respondents stipulating payment of Rs.1,73,000/- per month as against the sum of Rs.9,000/- per month which was the rent payable by the contractor running the canteen immediately before petitioner. Petitioner therefore contended that O.P(C).No.818 of 2010 : 2 : the agreement was not conscionable, he was under a mistaken impression of fact as to the feasibility of running a canteen and hence the contract itself is unenforceable under Sec.20 of the Contract Act. Several other contentions are also taken up by the petitioner in his written statement. Petitioner filed I.A.No.62 of 2005 under Rule 1 of Order XI of the Code of Civil Procedure (for short, “the Code”) seeking permission of the court to serve interrogatories on respondents. Respondent No.2 filed affidavit in response to that application, according to respondent No.2 giving appropriate answers for the interrogatories and opposing request for permission to serve it. Learned District Judge vide the impugned order dismissed I.A.No.62 of 2005 by Ext.P7, order observing that the suit is of the year 2004 and though, Ext.P4, application was preferred in the year 2005, no steps were taken by petitioner for about five years for the disposal of the said application and now, the case is ripe for trial and at that stage it is not possible to permit interrogatories to be served. Learned District Judge posted the case which was being taken at the Camp Court at Kozhikode for trial at Kavaratti. The said order is under challenge. Learned counsel for petitioner contends that since accounts are involved, petitioner has right to serve interrogatories on the respondents. Reliance is placed on the decisions in W.S. O.P(C).No.818 of 2010 : 3 : Insulators of India Vs. Power Systems & Projects ((1988) 1 KLT 297) and P.Balan Vs. Central Bank of India (AIR 2000 Kerala 24). Learned counsel for respondent No.1 contends that averments in the plaint as well as reply affidavit sworn on behalf of respondent No.2 gives sufficient answers for the questions raised in the interrogatories and at any rate, at this stage it is not necessary to allow interrogatories to be served which will also have the effect of further prolonging the litigation. 3. In W.S. Insulators of India Vs. Power Systems & Projects (supra) relied on by learned counsel for petitioner it is stated that where an account is claimed or question of account arises, the interrogatories as to details of accounts may be allowed. The court at this stage is not concerned with the ultimate entitlement of plaintiff for the amount. In P.Balan Vs. Central Bank of India (supra) it is held that the interrogatories must bear reasonably close connection with matters in question. These decisions do not lay down any proposition that whenever there is request for serving interrogatories it ought to be allowed. The question whether interrogatories must be allowed to be served on the party must be decided on the facts of each case having regard to the circumstances. Here, it is not a case of settlement of account between the parties - respondents claimed arrears of rent O.P(C).No.818 of 2010 : 4 : based on an agreement allegedly executed between them and petitioner. 4. It is not disputed that petitioner has entered into an agreement with respondents as claimed by the latter. The question whether that agreement would stand legal scrutiny under Sec.20 of the Contract Act as claimed by petitioner for the reasons stated in the written statement is a matter which the court concerned has to decide. If petitioner has a contention that the canteen was allowed to be run by contractors prior to him at a monthly rent of Rs.9,000/- and, in view of that stipulation made in between the parties hereto is unconscionable and unenforceable and it is relevant to get evidence regarding the rent that was being collected by respondents prior to the contract between the parties it is open to the petitioner to bring out those matters in evidence through respondents and if necessary summon relevant documents from the respondents as provided under law. 5. I must find that though Ext.P4, application was filed in the year, 2005 whatever be the reason thereof that application was nor required to be taken up for about 5 years and in 2010 there was request from petitioner to dispose of the said application. Learned District Judge also has referred to that in Ext.P7, order. I must also find that atleast some of the questions referred to in the O.P(C).No.818 of 2010 : 5 : interrogatories find its answer in the plaint itself and, atleast to some of queries the affidavit of respondent No.2 gives answers. If any further information relevant to the adjudication of dispute is involved it is open to the petitioner to bring out such details when the respondents or their witnesses are in the box. At this belated stage I do not find reason to interfere with Ext.P7, order. 6. Yet another grievance of petitioner is that the case was being taken at the Camp Court at Kozhikode and now being posted at Kavaratti and it causes much inconvenience to the petitioner. Regarding that matter I make it clear that it will be open to the petitioner to make a request to the learned District Judge to post the case at Camp Court, Kozhikode. Learned District Judge shall give sufficient opportunity to the parties to adduce evidence in support of their contentions including summoning of relevant documents, if any. Regarding posting of the case at Camp Court, learned District Judge shall consider the request of petitioner and pass appropriate orders having regard to the convenience of parties. This petition is dismissed with the above observation. (THOMAS P JOSEPH, JUDGE) Sbna/-