IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.217 OF 2003 AND C.M.P.NO.9605 OF 2003 M/s.Asian Paints (India) Limited, 89, G.N.T. Road, Ponni Amman Medu, Madhavaram, Chennai-600 110 .. Appellant Vs. 1.M/s.Macneil and Magor Limited, No.768,Mount Road, Chennai-600 002. 2.M/s.Kilburn Engineering Ltd., Malvika Centre, IV Floor, 144,Kodambakkam High Road, Chennai-600 034. 3.M/s.Pentasia Chemicals Ltd., East Coast Chambers, 92,G.N.Chetty Road, T.Nagar, Chennai-600 017 .. Respondents This O.S.A. has been preferred under Clause 15 of the Letters Patent read with Order 36 Rule 1 of O.S. Rules against the judgment and decree, dated 22.1.2003 made in C.S.No.633 of 1989. For Appellant : Mr.A.Abdul Quddhose For Respondents: No appearance JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the learned Single Judge made in C.S.No.633 of 1989, whereby a decree was granted in favour of the plaintiff and as against the defendants. Aggrieved the second defendant has brought forth this appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2.Despite service of notice, the respondents/plaintiffs have not appeared before this court. Hence the Court heard the learned counsel for the appellant and also looked into the materials available and made the judgment as follows: 3.The short facts with which the respondents/plaintiffs approached this court, as could be seen in the plaint in C.S.No.633 of 1989, are it was a suit for recovery of money of Rs.10,93,078.48 together with interest and costs. There was an agreement between the plaintiff and the defendant for supply of Heat Exchangers and as per the purchase order, dated 12.12.1985, the same was supplied and there was delay in making supply. As per the understanding, 6 Heat Exchangers, 5 Evaporators and 5 Separators were supplied and part payment for the supply of 6 Heat Exchangers was made and the balance in respect of the supply of the 7th Heat Exchanger remained unpaid and in respect of 8th Heat Exchanger, it was kept ready for delivery to the defendant, but was not delivered due to non payment and thus, there was exchange of notice and the demand made thereat was not met and it is under the said cause of action, the suit was laid for recovery of Rs.10 lakhs and odd. 4.Originally, the first defendant filed written statement, inter-alia, stating that there was breach of contract on the part of the plaintiff in not supplying the Heat Exchangers and materials as understood between the parties; that in view of the delay, which was caused by the plaintiff, the commissioning of plant was also delayed and thus, the plaintiff was liable to pay damages. Further, there was also 6 months delay, by which the defendant incurred heavy damages due to loss of sales on account of delayed commissioning. There was no transportation charge of Rs.40,000/- as claimed. There was breach of agreement by the plaintiff and under these circumstances, the stopping of 8th Heat Exchanger was not proper and there was exchange of notice, whereby damage was also claimed and hence the suit was to be dismissed. 5.Pending proceedings, the plaintiff filed A.No.2960 of 1998 for impleading the second respondent herein as second plaintiff and also the appellant herein as the second defendant and in that application, it was stated that the Calcutta High Court in Company Petition No.391/89 has ordered transfer of business of the first plaintiff to the second plaintiff under the terms and conditions set out in the order and therefore, the said transaction was transferred to the second plaintiff under the scheme of arrangement and hence the second plaintiff was to be impleaded. The plaintiff was informed by the third respondent that the third respondent Company has been amalgamated with the appellant and therefore, the second defendant/appellant was to be impleaded as necessary party. Accordingly, the application was ordered. Thus, the second plaintiff and the appellant herein as the second defendant were impleaded. 6.The second defendant, who is the appellant herein, filed a written statement, stating that there was no claim made against the second defendant and hence so far as the second defendant is concerned, the suit was to be dismissed. 7.Issues were framed and the parties went on trial. P.W.1 was https://hcservices.ecourts.gov.in/hcservices/ examined on the side of the plaintiff and documentary evidence were adduced. On the side of the defendants, no witness was examined. The Court heard the arguments advanced and looked into the materials available and has passed the judgment as against the defendants and decreed the suit in entirety negativing the contentions put forth by the defendants. Aggrieved over the same, the second defendant has brought forth this appeal. 8.Advancing arguments on behalf of the appellant, the learned counsel, without going into the merits of the claim made by the plaintiffs and the counter claim by way of damages by the defendants, would submit that the judgment of the learned Single Judge has got to be set aside for the simple reason that originally, a claim was made against only one defendant and thereafter, an application was filed for impleadment of the second defendant and the Court thought it fit that the second defendant, who is the appellant herein, should be impleaded and accordingly, orders were passed. The plaint was actually amended only by adding the second defendant and the second defendant had also filed the written statement, specifically stating that there was no pleading as against the second defendant and no relief has also been sought for and hence the suit has got to be dismissed as against the second defendant. 9.The Court perused the entire materials and also looked into the judgment under challenge. All the factual positions now put forth by the learned counsel for the appellant are found to be correct. Paragraph 25 of the judgment of the learned Single Judge reads as follows: "25.In view of the fact that the first defendant had become a division of the second defendant, it is not open to the second defendant to urge that since no relief is asked against the second defendant the suit should be dismissed as against the second defendant. The liability of the first defendant is the liability of the second defendant." 10.At this juncture, it is pertinent to point out that the application was ordered and the second defendant was also impleaded, since the first defendant has become a division of the second defendant and necessary amendment was also made, adding the second defendant. At this juncture, necessary issues should have been framed, but not done so. The court has also proceeded on the footing of the original issues framed. Further, it is pertinent to point out that when such amendment was made so far as the cause title was concerned to include the second defendant, necessary pleadings in the plaint should have been made, but the plaintiffs have proceeded with the original plaint and has only included the second defendant. The reason as to how the second defendant could be made liable to make the claim was not added in the pleadings and also in the relief paragraph at the end, no relief was asked against the second defendant. So far as the second defendant is concerned, necessary pleadings were not made, no issues were framed and no relief was also sought against the second defendant. Hence the learned counsel for the appellant would press that on the above situation, the appeal has got to be allowed, thereby setting aside the judgment and decree of the learned Single Judge so far as the second defendant is concerned. https://hcservices.ecourts.gov.in/hcservices/ 11.It is true, a decree has been passed against the second defendant, who is the appellant herein. It could be seen that pleadings, which is necessary to fasten the liability on the second defendant, was lacking. At the same time, it is pertinent to point out that all necessary averments were made in the affidavit filed in support of the application for impleading the second defendant. The Court though it fit that he was the necessary party and accordingly, the application was allowed and the second defendant was also added as a party. At this juncture, the plaintiffs should have added necessary pleadings so far as the second defendant was concerned, but failed to do so. Further, necessary issues had also not been framed. It is also pertinent to point out that necessary relief as against the second defendant has not been asked for. 12.In appraisement of the facts and circumstances of the case, the Court is of the considered opinion that it is a fit case where the judgment of the learned Single Judge has got to be set aside and a remittal order has got to be passed and the interest of justice also would require so. Accordingly, the judgment of the learned Single Judge is set aside, remitting the matter back to the learned Single Judge, giving permission to the plaintiffs to make necessary pleadings and also giving opportunity to the second defendant to put forth the written statement. The learned Single Judge is required to frame necessary issues, proceed with the matter and make the judgment afresh and dispose of the suit within a period of three months. Accordingly, this O.S.A. is allowed. No costs. Consequently, the connected CMP is closed. 13.It is also brought to the notice of the court by the learned counsel for the appellant that at the time of initiating the appeal, while granting stay, there was a condition imposed for depositing 50% of the decree amount and the said condition has been complied with and thus, the amount is now kept in court deposit to the credit of this appeal. Therefore, the Registry is directed to make transfer of the said deposit to the credit of the C.S. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar vvk To 1.The Sub Assistant Registrar Original Side, High Court, Madras - 104 2.The Section Officer, Accounts Section, High Court, Madras - 104. O.S.A.NO.217 OF 2003 SGL(CO) JJM(14.07.08) https://hcservices.ecourts.gov.in/hcservices/