IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27-02-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1166 of 2007 A.Palani .. Appellant/Plaintiff Versus Bank of India Vellore Rep. by its Area Manager, Cathedral Road, Chennai-86. .. Respondent/Defendant PRAYER: Appeal filed under section 100 of CPC against the judgment and decree,dated 19.07.2004, made in A.S.No.40 of 2000 on the file of the learned Subordinate Judge, Vellore, Vellore District, confirming the judgment and decree, dated 20.1.2000 made in O.S.No.840 of 1996, on the file of the learned Additional District Munsif Court, Vellore. For Appellant : Mr.R.Singaravelan For Respondent : Mr.M.V.Chandran J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 19.07.2004, made in A.S.No.40 of 2000, on the file of the Subordinate Judge, Vellore, Vellore District, confirming the judgment and decree, dated 20.1.2000, made in O.S.No.840 of 1996, on the file of the Additional District Munsif Court Vellore. 2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.840 of 1996. 3. The plaintiff in the suit in O.S.No.840 of 1996 is the appellant in the present second appeal. The plaintiff had filed the suit before the Additional District Munsif Court, Vellore praying for a judgment and decree, directing the defendant to pay Rs.15,500/-, along with the excess assessed quantum o damages, to the plaintiff, with future interest and costs. 4. It is stated by the plaintiff that he is a wholesale jowli merchant running the business in the name and style a "Sri Mahalakshmi Textiles" and "Pazhani Textiles" in the business premises bearing No.28/A, Beri Subramaniasami Koi https://hcservices.ecourts.gov.in/hcservices/ Street, Vellore-4. The plaintiff had obtained a loan from the defendant bank for carrying on his business. The defendant bank had filed a suit for the recovery of the loan amount. The plaintiff had contested the suit on various grounds. An interim application had also been filed by the defendant bank in I.A.No.1478 of 1978 for the appointment of an Advocate Commissioner to take inventory of the goods in the business premises of the plaintiff. After taking inventory of the goods on 23.09.1978, the Commissioner had locked the business premise and had also sealed it at the instance of the defendant. The keys had been submitted in the Court of the Subordinate Judge Vellore. Since the textile goods worth Rs.92,000/- belonging to the plaintiff had been locked up in the business premises, the plaintiff had filed another interim application in I.A.No.158 of 1978, in O.S.No.450 of 1978, for breaking open the lock at the business premises. The application had been dismissed. The plaintiff had also filed an application in I.A.No.672 of 1980 praying for the appointment of an Advocate Commissioner to assess the quantum of damages caused to the plaintiff. The said application had also been dismissed. Since the textile good belonging to the plaintiff had been locked up for a long time from 23.09.1978, they have been damaged to a great extent on account of which the plaintiff had sustained heavy loss in the business. 4.1 The plaintiff is filing an application for appointment of an Advocate Commissioner with the help of experts in the textile field to assess the quantum of damages caused to the textile goods of the plaintiff. According to the plaintiff, the damage caused to the textile goods of the plaintiff would be a sum of Rs.5,500/- approximately. The plaintiff was earning a profit of about Rs.1000/- per month and due to the locking up o his business premises he had suffered a loss in his earning capacity. The loss of profit from 23.09.1978 till the date of the filing of the suit is Rs.10,000/-. Further, the monthly rental amount paid by the plaintiff is Rs.4,340/-. The deposit of Rs.810/-, for a fresh telephone connection, had to be paid by the plaintiff as his telephone had been disconnected due to the locking up of the premises by the Commissioner appointed by this Court, on an application filed by the defendant. In such circumstances, the plaintiff had filed the suit praying for the relief as prayed for therein. 5. A written statement had been filed on behalf of the defendant bank stating that a suit in O.S.No.450 of 1978 had been filed against the plaintiff for the recovery of money due from him. The suit had been decreed, on 14.07.1981. A Commissioner had been appointed, on an application filed in the suit, to take inventory of the stock-in-trade found in the premises at No.28/A, Beri Subramaniasami Koil Street, Vellore-4 In spite of several notices issued to the plaintiff, he had not discharged his liability by paying the amount due to the defendant. Therefore, the defendant had to file the suit in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.450 of 1978 and to appoint a Commissioner to take inventory of the stock-in-trade at the business premises of the plaintiff. Since the plaintiff was not available, either during the taking of the inventory or after its completion, the Commissioner appointed by the Court had to lock up the premises It had been made clear by the defendant that the defendant was willing to give up its right over the hypothecated goods provided the plaintiffs give immovable property as security or bank guarantee to cover the suit amount. It has also been stated that the plaintiff in the suit O.S.No.194 of 1981, had set up one Manivannan, to file an application under Order 1 Rule 10 o the Civil Procedure Code, in O.S.No.450 of 1978 to get himsel impleaded on the ground that he is the owner of M/s.Pazhani Textiles and that his goods are also in the business premises o the plaintiff. The said application had been dismissed after contest. 5.1. The plaintiff had filed an application in I.A.No.201 of 1979, wherein he had categorically admitted that the goods in the premises at Door No.28/A, Beri Subramaniasami Koil Street Vellore-4, are worth only Rs.15,000/-. Further, the plaintif had closed his business on his own accord several months prior to the filing of the suit. Without raising the issues in the interim application filed by the defendant for appointment o the Commissioner, the present suit has been filed claiming damages. It is also seen that the plaintiff had not filed any objections to the Commissioner's report nor has he challenged the appointment of the Commissioner in the manner known to law Therefore, the defendant is not liable for the alleged damages said to have been caused by the locking up of the business premises of the plaintiff. 6. Based on the contentions raised by the plaintiff in the plaint filed in the suit and the contentions of the defendant in the written statement, the trial Court had framed the following issues for consideration: 1) Whether the suit has been affected by latches? 2) Whether the plaintiff has suffered damages due to the acts of the defendant? 3) Whether the suit is affected by the principle of resjudicata? 4) Whether the suit is affected by Order II Rule 2 of the Civil Procedure Code? 5) Whether the suit has been properly valued? 6) What other reliefs the plaintiff is entitled to? 7. Based on the additional written statement filed on behalf of the defendant, the following additional issues had been framed: 1) Whether it is correct to state that the plaintiff has been prevented from taking out money due to the locking up of the business premises? https://hcservices.ecourts.gov.in/hcservices/ 2) Whether the defendant is liable to pay damages? 8. With regard to issue No.2 and the additional issues 1 and 2, the trial Court had found that the appointment of an Advocate Commissioner was made by the Court in the suit filed by the defendant bank for the recovery of the loan amount due from the plaintiff. It has been found by the Advocate Commissioner appointed by the Court that even before the Advocate Commissioner had gone to the premises for taking the inventory of the textile goods at the business premises of the plaintiff the business had been closed. This has been admitted by the plaintiff in his evidence. Further, it has been admitted by the plaintiff that he is liable to repay the loan which he had borrowed from the defendant bank. The trial Court had found that the contentions raised by the plaintiff in the present suit had not been stated in the earlier proceedings. It was also found by the trial Court that the plaintiff had not incurred any damage to his textile goods as claimed by him. Therefore, the plaintif is not entitled to the claim for damages against the defendant. 9. With regard to the issues Nos.3,4 and 5, the trial Court had come to the conclusion that the plaintiff cannot be permitted to pray for damages at this stage, since he had not challenged the order passed by the Court in I.A.No.2019 of 1979 The trial Court had concluded the other issues, relating to Order II Rule 2 of the Civil Procedure Code and the improper valuing of the suit, in favour of the defendant. 10. Aggrieved by the judgment and decree, dated 20.1.2000 made in O.S.No.840 of 1996, on the file of the Additional District Munsif Court, Vellore, the plaintiff had filed an appeal before the Subordinate Judge, Vellore, in A.S.No.40 o 2000. 11. The First Appellate Court had framed the following points for determination. 1) Whether the suit is barred by limitation? 2) Whether the plaintiff has incurred damages and loss only due to the act of the defendant? 3) Whether the suit is barred by Res-judicata? 4) Whether the suit is under Order 2 Rule 2 of the Civil Procedure Code. 5) Whether the building was under lock and key without doing money transactions, as pleaded by the plaintiff? 6) Whether the plaintiff is entitled to damages as against the defendant? 7) Whether the appeal is to be allowed? 8) To what reliefs the parties, are entitled to? 12. With regard to the points 2,5,6 and 7, the First Appellate Court had held that the appellant had not given any https://hcservices.ecourts.gov.in/hcservices/ details of the property alleged to have been in his busines premises. Further, the Advocate Commissioner appointed by the Court had acted in accordance with the directions issued by the Court and the defendant was in no way connected with the action of the Advocate Commissioner. Even according to the evidence of the plaintiff, examined as P.W.1, he had admitted that his business had been closed two or three month prior to the filing of the suit in O.S.No.450 of 1978. It was found that the plaintiff was evading payment of the dues payable by him to the defendant by initiating various proceedings. 13. With regard to the points 1,3 and 4, the First Appellate Court had found that the suit has not been properly valued. Since the plaintiff had not raised all the points in the previous suit, in accordance with Order II Rule 2 of the Civil Procedure Code, he is not entitled to claim the relief under a separate suit. It was also held that the present suit filed by the plaintiff is hit by the principle of res-judicata, under Section 11 of the Civil Procedure Code, 1908. 14. Aggrieved by the judgment and decree of the Courts below, the plaintiff in the suit O.S.No.840 of 1996 had filed the present second appeal raising various grounds. 15. The substantial questions of law raised by the plaintiff/appellant, are as follows: "1. Whether the Courts below have given importance to the admitted fact that the shop was closed at the instance of the respondent in O.S.No.450 of 1978 and against the request of the appellant for the opening of the shop in I.A.No.2019 of 1979 who was dismissed only at the instance of the respondent only. 2. Whether the Courts below are correct in holding that the suit is barred by resjudicata under Section 11 CPC. 3. Whether the Courts below are right in holding that the suit is barred by Order I Rule I of CPC. 4. Whether the Courts below are right in holding that the suit was not properly valued for the purpose of the Court Fee when the plaintiff/appellant himself has reduced his claim only to Rs.15,000/-." 16. Considering the rival contentions raised on behalf o the appellant as well as the respondent and in view of the evidence available on record, it is clear that the Courts below have come to the right conclusion in dismissing the suit. The plaintiff has not shown sufficient cause or reason for this Court to interfere with the conclusions arrived at by the Courts below. Admittedly, the plaintiff was liable to pay the loan amount borrowed from the defendant bank as claimed in the suit in O.S.No.450 of 1978, filed by the defendant bank for the recovery of the loan amount due from the plaintiff. An interim application in I.A.No.1478 of 1978 had been filed for https://hcservices.ecourts.gov.in/hcservices/ appointment of a Commissioner to take inventory of the stock-in- trade in the business premises of the plaintiff at Door No.28/A Beri Subramaniasami Koil Street, Vellore-4. Since the plaintif was not available at his business premises when the Advocate Commissioner had gone there to take the inventory of the stock- in-trade available at the premises, he had to lock up the premises after taking inventory. It is also found that the plaintiff had not contested the appointment of the Advocate Commissioner in a manner known to law and therefore, it is not open to him to claim for damages for the actions of the Advocate Commissioner appointed by the Court in accordance with law. 17. In such circumstances, the present second appeal i dismissed, confirming the judgment and decree of the Courts below. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Csh To 1.The Subordinate Judge, Vellore. 2.The Additional District Munsif Court, Vellore. One cc to Mr.R.Singaravelan, advocate SR.No.10897 one cc to Mr.M.V.Chandran, advocate SR.No.10690 S.A.No.1166 of 2007 VSV[CO] SKY/8/4 https://hcservices.ecourts.gov.in/hcservices/