IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.271 of 2004 M/s Visveswarayya Iron & Steel Ltd., rep. by its Managing Director State Bank of Mysore Building 231, N.S.C.Bose Road, 4th Floor, Chennai-1. .. Appellant vs 1.M/s Bhoruka Steel ltd., rep. by its Branch Manager, 179, Thambuchetty Street, III Floor, Chennai-1. 2. M/s Seaways Shipping ltd., rep. by its Director, 51, Armenian Street, Chennai-1. .. Respondents Original side appeal preferred under Order XXXVI Rule 11 of O.S. Rules read with Clause 15 of Letters Patent against the Judgment and decree dated 30.8.2004 made in Appln. 835 of 2004 in C.S.No.852 of 2000. For Appellants : Mr.M.S.Krishnan Senior Counsel for M/s Sarvabhauman Associates For Respondent No.1 : Mrs.G.Thilagavathi For Respondent No.2 : No appearance ---- JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the order of the learned Single Judge made in Application No.835 of 2004 in C.S.No.852 of 2000 whereby the first respondent/applicant has sought for payment of rent at the rate of Rs.25,000/- p.m., pending the said suit for recovery of Rs.11 lakhs with interest at 24% from November 1998 till the date of realisation. https://hcservices.ecourts.gov.in/hcservices/ 2. Affidavit filed in support of the original application, counter affidavit and the order under challenge are perused. 3.The Court heard the learned counsel on either side. 4. The facts as admitted are as follows: a. The second respondent has stored the coke in the yard of the first respondent/applicant from November 1998 to December 2002. It was agreed between the parties that a sum of Rs.25,000/- was payable towards monthly rent. The first respondent/applicant came forward with a claim stating that respondents are liable to pay Rs.11 lakhs towards the arrears of rent with interest from November, 1998. 5. The case of the appellant/first respondent was that they have imported 19,678 M.Ts. of Coke through M/s Dalhousie Investment Trust Co.Limited (DITCO) and the same was unloaded at Madras Port during October 1995. M/s DITCO had appointed the second respondent as the Clearing and Forwarding Agent and the dispute arose between the applicant/first respondent and the DITCO had resulted in two suits viz., O.S.No.210 of 1998 filed by the applicant/first respondent for recovery of the value of the materials not delivered against DITCO, while the second suit for relief of injunction before the III Assistant City Civil Court, Chennai in O.S.No.13943 of 1996 was rejected and the said order has become final, since it was not appealed against. While the matter stood thus, pursuant to the Court's order, the material was sold to the tune of Rs.18,25,000/- which is also deposited to the credit of the City Civil Court, Chennai. Pending the same, the instant application was filed seeking to withdraw the above amount as arrears from the sale proceeds, which is deposited to the credit of the suit. Pending proceedings, the instant application was filed contending that a letter was addressed by the appellant/first respondent dated 15.2.1999 whereby they agreed to pay Rs.25,000/- per month, towards the rental and hence this is an admission and on the basis of which, there cannot be any impediment for passing an interim order. 6. The only contention that was raised by the respondents side before the learned Single Judge and equally here also is that the letter dated 15.2.1999 did not express any admission and if it is construed to be an admission, it was also with a condition. Under such circumstances, it cannot be construed as an admission made and hence on that ground, the withdrawal of the said amount cannot be ordered and a reading of the letter would also clearly indicative so and hence the order of the learned Single Judge has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 7. The only point that would arise for consideration would be whether the appellant/first respondent can be allowed to withdraw the amount at the rate of Rs.25,000/- towards rent, in view of the contents of the letter relied on by them. 8. Without going into the rival submissions made or controversy between the parties, this Court is of the considered opinion that it has got to be resolved at the time of trial on appreciation of evidence. What is now required to be stated is that the order of the learned Single Judge has got to be set aside on the simple ground that the whole contention of the parties rested before the learned Single Judge on the letter admittedly written by the appellant to the first respondent dated 15.2.1999. The letter clearly reveals that "hence, we would like to reiterate that we can consider the payment of rent from November 1998 onwards provided you agree to make immediate delivery of materials, otherwise there cannot be any client of rent on VISL which please note.". A very reading of this part of the letter referred to above would clearly indicate that it was not unconditional, but it is made clear that they can consider the payment of rent from November 1998 onwards, provided they if they are agreed to make immediate delivery of materials. Now, without satisfying the condition, the respondents cannot be permitted to say that it was with an admission for making payment of the rental and hence on that basis the amount can be withdrawn. It has to be pointed out that a very reading of the letter would clearly reveal that it was an admission made, but was qualified with a condition. So long as the condition is not satisfied, no orders at this juncture, for withdrawal can be ordered. Under such circumstances, the order of the learned Single Judge is set aside. Accordingly, the Original Side appeal is allowed. No costs. VJY Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TO The Sub Assistant Registrar, Original Side, High Court, Chennai. + 1 cc to M/s. Sarvabhuman Associates, SR no.36174 OSA.NO.271 OF 2004 KLT(CO) SR/23.7.2008 https://hcservices.ecourts.gov.in/hcservices/