IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP(C).No. 2294 of 2011(O) ------------------------ OS.519/2008 of 1ST ADDL. SUB COURT, KOTTAYAM .................. PETITIONER / PLAINTIFF: ------------------------ ------------- M/S.ETL HOSPITALITY SERVICES LIMITED, ELNET SOFTWARE CITY, TS 140, BLOCK 2 & 9, CPT ROAD, TARAMANI, CHENNAI-600113, CHENNAI DISTRICT, TAMILNADU REPRESENTED BY ITS ACCOUNTS OFFICER, R.TAMIL SELVAM, S/O.B.RATHINAM, RESIDING AT 270, 3RD FLOOR, KILPAUK GARDEN ROAD, KILPAUK, CHENNAI - 600 010, TAMIL NADU. BY ADVS. SRI.BABU PAUL SMT.M.M.JASMIN SRI.NIDHI SAM JOHNS RESPONDENTS / DEFENDANTS : ---------------------------------------------- 1. ARJUN, AGED 23 YEARS, S/O.RAMESAN, SANTHOSH BHAVAN, PONNAD (P.O.), PIN-688538, MANNANCHERRY KARA, MANNANCHERRY VILLAGE, AMBALAPUZHA TALUK, ALAPUZHA DISTRICT NOW RESIDING AT CHANIYILPULIPRAYIL, KULASEKHARAMANGALAM (P.O.), KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686 608. 2. K.P.VARGHESE, AGED 49 YEARS, S/O.K.P.POULOSE, RESIDING AT A43, ASOKA APARTMENTS, HIGH COURT JUNCTION, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI-682031. 3. P.R.SALEELA @ SALILA, AGED 47 YEARS, W/O.B.RAMESH ALIAS RAMESAN, RESIDING AT CHANIYILPULIPRAYIL, KULASEKHARAMANGALAM (P.O.), KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686698 (1ST DEFENDANT IN O.S.521/2008 WHICH IS SOUGHT TO BE JOINTLY TRIED WITH O.S. NO. 519/2008) BY ADV. SRI.C.HARIKUMAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2294 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PAY ORDER DATED 30.11.2006 ISSUED BY UTI BANK LTD., IN FAVOUR OF UNION BANK OF INDIA, M.G. ROAD, ERNAKULAM FOR RS. 27,08,000/- EXT.P2 : COPY OF THE PAY ORDER FOR RS. 24,84,561.70 ISSUED BY UNION BANK OF INDIA IN FAVOUR OF THE RECOVERY OFFICER, DRT, ERNAKULAM. EXT.P3 : COPY OF THE AGREEMENT FOR SALE DATED 01.12.2006 EXECUTED BY THE 1ST RESPONDENT. EXT.P4 : COPY OF THE AGREEMENT FOR SALE DATED 01.12.2006 EXECUTED BY THE 3RD RESPONDENT. EXT.P5 : COPY OF POWER OF ATTORNEY NO. 536/2006 DATED 01.12.2006 OF THRIKKAKARA SUB REGISTRY OFFICE EXECUTED BY THE 1ST RESPONDENT. EXT.P6 : COPY OF POWER OF ATTORNEY NO. 535/2006 DATED 01.12.2006 OF THRIKKAKARA SUB REGISTRY OFFICE EXECUTED BY THE 3RD RESPONDENT. EXT.P7 : COPY OF PLAINT IN O.S. NO. 519/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P8 : COPY OF PLAINT IN O.S.NO. 521/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P9 : COPY OF WRITTEN STATEMENT DATED 31.12.2008 FILED BY THE 1ST RESPONDENT IN O.S. NO. 519/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P10 : COPY OF WRITTEN STATEMENT DATED 29.12.2008 FILED BY THE 3RD RESPONDENT IN O.S. NO. 521/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P11 : COPY OF WRITTEN STATEMENT DATED 13.03.2009 FILED BY THE 2ND RESPONDENT IN O.S. NO. 519/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P12 : COPY OF WRITTEN STATEMENT DATED 13.03.2009 FILED BY THE 2ND RESPONDENT IN O.S. NO. 521/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. (Contd...) OP(C).No. 2294 of 2011(O) EXT.P13 COPY OF THE COMPROMISE PETITION AS I.A.NO. 2408/2010 DATED 27.07.2010 IN O.S. NO. 638/2008 OF THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P14 COPY OF JOINT TRIAL APPLICATION FILED BY THE PETITIONER AS I.A.NO. 535/2011 IN O.S. NO. 519/2008 IN THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P15 COPY OF ORDER DATED 27.05.2011 IN I.A.NO. 535/2011 IN O.S. NO. 519/2008 OF THE SUBORDINATE JUDGES COURT, KOTTAYAM. EXT.P16 COPY OF AGREEMENT FOR SALE DATED 30.11.2006 EXECUTED BETWEEN THE 2ND AND 3RD RESPONDENTS. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2294 of 2011 --------------------------------------- Dated this 29th day of July, 2011 JUDGMENT Notice to the second respondent is dispensed with since no relief is claimed in the suits against him and in view of the decision I propose to take. 2. Ext.P15, order dated May 27, 2011 on I.A.No.535 of 2011 in O.S.No.519 of 2008 of the Court of learned Additional Sub Judge, Kottayam is under challenge. That was an application filed by the petitioner/plaintiff for joint trial of O.S.Nos.519 of 2008 and 521 of 2008, both pending in the Court of learned first Additional Sub Judge. In both the suits petitioner/plaintiff has sought for a decree for specific performance of the agreements for sale (allegedly) executed by respondents 1 and 3 in respect of the subject matter of the suits. Respondents 1 and 3 are the first defendants in O.S.Nos.519 and 521 of 2008, respectively while the second respondent is the common second defendant in both suits. According to the petitioner, agreements for sale of the properties were arranged through the second respondent and hence, he is impleaded as party in both suits. In O.S.No.519 of 2008 the (alleged) agreement is dated 30.11.2006 in respect of O.P(C).No.2294 of 2011 -: 2 :- 28.33Ares belonging to the first respondent. In O.S.No.521 of 2008, prayer for specific performance concerns 36.42 Ares belonging to the third respondent (first defendant in that suit). In both cases, petitioner says that it was ready and willing to purchase the properties but, respondents 1 and 3 did not perform their part of the contract and hence the suits. Respondents 1 and 3 filed written statement in both the cases denying execution of the agreements and contending that they had executed separate power of attorney in favour of petitioner for certain other purpose. They denied receiving any advance sale consideration as the petitioner says. 3. Petitioner filed I.A.No.535 of 2011 in O.S.No.519 of 2008 for a joint trial of that suit with O.S.No.521 of 2008. That application was opposed by respondents 1 and 3. Learned Additional Sub Judge has dismissed that application since the properties are different, agreements relied on by petitioner are different and the respective owners are also different. Learned counsel contends that respondents 1 and 3 are mother and son and that the entire sale consideration was given to them jointly. Reliance is placed on Exts.P1 and P2. Ext.P1 is the demand draft for `.27,08,000/- said to be given by the petitioner to UTI bank O.P(C).No.2294 of 2011 -: 3 :- for discharge of liability of respondents 1 and 3 though, as per the agreements for sale the consideration fixed was only `.7400/- per cent (if the total consideration is taken as `.27,08,000/- learned counsel submits that consideration per cent would come to `.16,000/-). 4. It is true that properties are different and respondents 1 and 3 who own the properties are also different. Both the agreements are allegedly executed on the same day and negotiated by the second respondent. But, then the question is whether the request for joint trial should have been negatived. I must bear in mind that according to respondents 1 and 3, they had not executed any agreement for sale in favour of petitioner and instead, they had only executed a power of attorney in favour of petitioner. Learned counsel for respondents 1 and 3 submitted that the said power of attorney was not produced in Court and when respondents 1 and 3 filed application to direct petitioner produce the power of attorney petitioner came with a reply that it has been pledged in a company. 5. The Supreme Court in Prem Lal Nahata Vs. Chandi Prasad (2007(1) KLT 910 (SC)) in paragraph 16 has referred to the circumstance where consolidation of the suits can be O.P(C).No.2294 of 2011 -: 4 :- ordered. It is stated that the main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the Court and it appears to the Court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. Here, it is not disputed that respondents 1 and 3 are the son and mother, respectively. Going by the version of petitioner, both transactions were negotiated through the second respondent/second defendant and though separate agreements were allegedly executed on the same day, it is contended that consideration was paid together to respondents 1 and 3. I must also bear in mind the contention of respondents 1 and 3 is that they had not executed any agreement and that they had only given a power of attorney in favour of the petitioners. Considering all these circumstances, I am inclined to think that it is appropriate that the suits are tried and disposed of jointly. I must also bear in mind that by doing so, respondents 1 O.P(C).No.2294 of 2011 -: 5 :- and 3 are not prejudiced or affected in any manner. In that view of the matter I am inclined to think that refusal to order joint trial is not legal and proper. Resultantly this original petition is allowed. Ext.P15, order is set aside and I.A.No.535 of 2011 in O.S.No.519 of 2008 will stand allowed. Learned Additional Sub Judge, Kottayam is directed to consolidate the suits and dispose of the same jointly. (THOMAS P JOSEPH, JUDGE) Sbna/-