1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.04.2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(MD) Nos.1467 of 2008 and 980 of 2009 1. C.M.A.(MD) NO.1467 OF 2008 K.M. Santhanam : Appellant/1st Respondent/Plaintiff Vs. 1. M/s. Indowind Energy Ltd., Chennai Rep. By its Director Shree K.S.Ravindranath having registered office at No.15, Kothari Building, 4th Floor, 114 M.G.Road, Nungambakkam, Chennai – 34. 2. V.R. Raghunathan : Respondents/3rd Party & Defendant 2. C.M.A.(MD) NO.980 OF 2009 V.R. Ragunathan, Chairman Wescare India Ltd., No.16, Cenetoph Road, Teynampet, Chennai 18. : Appellant/Defendant vs. 1. M/s. Indowind Energy Ltd., Chennai Rep. By its Director Shree K.S.Ravindranath having registered office at No.15, Kothari Building, 4th Floor, 114 M.G.Road, Nungambakkam, Chennai – 34. 2. K.M. Santhanam : Respondents/3rd Party & Plaintiff Civil Miscellaneous Appeal Nos.1467/2008 and 980 of 2009 are filed under Order 43 Rule 1 of C.P.C. against the fair and decreetal order passed in E.A.No.58 of 2007 in E.P.No.34 of 2007 in O.S.No.40 of 2007 on the file of the Principal District Judge, Tirunelveli on 02.04.2008 For Appellant in : Mr.M.V. Venkataseshan CMA(MD) No.1467/08 and 2nd Respondent in CMA(MD) No.980/09 https://hcservices.ecourts.gov.in/hcservices/ 2 For 1st Respondent in : Mr.T.R. Rajagopalan CMA(MD) No.1467/08 & Senior Counsel for CMA(MD) No.980/09 M/s N. Krishnaveni For 2nd Respondent in : Mr.A. Sivaji CMA(MD) No.1467/08 and Appellant in CMA(MD) No.980/09 COMMON JUDGMENT On account of interconnectivity of matters, the common judgment is passed. C.M.A.No.1467 of 2008 1. The Appellant (who is second respondent in CMA (MD) No.980 of 2009), filed suit in O.S.No.40 of 2007 on the file of the Principal District Judge, Tirunelveli against the 2nd respondent (who is appellant in CMA (MD) No.980 of 2009), for mandatory injunction, directing the 2nd respondent company to remove the Group Control Centre Structure from the the Survey Field No.1153/4 measuring 64 cents (from the plaint II Schedule property) within the stipulated time prescribed by the Court and for costs. The defendant/2nd respondent herein appeared through lawyer and filed memo stating that they would remove the articles within three weeks from the plaint schedule property and agreed to pass a decree according to the plaint. Hence, a decree for mandatory injunction was granted to remove the Group Control Centre structure from the plaint second schedule property within three weeks failing which the same be removed at the expenses of the defendant company. Upon the failure on the part of the defendant/2nd respondent for such removal, the Appellant filed E.P.No.34 of 2007 on the file of the said Court for execution of the mandatory injunction and order was passed accordingly. The Appellant got removal of the Group Control Centre through Court on 17.11.2007. 2. Aggrieved by the above said removal, the 1st respondent herein filed an application in E.A.No.58 of 2007 under Order 21 Rule 99 and 101 and Sec.151 of C.P.C to declare that the Group Control Centre situate in the II Schedule Property belongs to the claimant/1st respondent company and pass an order directing the appellant to reinstate the G.C.C structure in the II Schedule Property. In the E.A., it is stated as follows: 2.(a) During the year 2006, the claimant was looking for prospective sellers of windmill assests in and around Levinjipurm Village of Panagudi Sub Registry, Radhapuram Taluk. During that point of time the defendant M/s. Wescare India Ltd., had offered to sell 31 Nos of WEG (Wind Energy Generators) and the claimant scrutinized the title of 28 W.E.Gs. At that time it was realised that 5 W.E.Gs were situated in the land belonging to M/s. Wescare https://hcservices.ecourts.gov.in/hcservices/ 3 India Ltd., and the reamining 23 W.E.Gs were situated in the land of M/s. Wipro Finance Ltd., along with the schedule property. Under this situation, in order to have optimum use of the 31 W.E.Gs, claimant company had entered agreement with M/s. Wipro Finance Ltd., and M/s. Wescare Indian Ltd., In fact, the claimant was in possession and enjoyment of the II Schedule Property as lessee of M/s. Wipro Finance Ltd., 2.(b) The defendant sold 31 Nos. of W.E.G. along with G.C.C. to the claimant for a sum of Rs.13,48,00,700/- on 15.3.2006. During the said period i.e., March 2006, the claimant contacted M/s Wipro Finance Ltd., and had offered to purchase its land along with the schedule property wherein the "Windmill" assets for 23 W.E.Gs were situated. M/s. Wipro Finance Ltd., readily accepted the offer and demanded Rs.1,50,00,000/- and insisted for an advance amount of Rs.1 crore. The said advance amount was paid by the claimant on 20.05.2006 and in part performance of the contract M/s. Wipro Finance Ltd., delivered possession of the land including the suit property wherein 23 W.E.Gs are situated. Since then the claimant is in possession the suit property. 2.(c) The claimant on 14.7.2006 has purchased lands measuring 3 acres and 30 cents around the suit property from the defendant and thus the claimant came into possession of the entire lands including the suit property, wherein 28 W.E.G. and G.C.C. are situated. During the month of October 2006, while the claimant was doing field survey of its land purchased from M/s Wipro Finance Ltd., it came to know that due to inadvertence, the suit property has been erroneously left in the sale deed executed by them. The claimant on 19.10.2006 informed about this fact to M/s.Wipro Finance Ltd., and they promised to convey the suit property to the claimant by executing a separate sale deed after passing a board resolution to this effect. Since there was no favourable action from M/s. Wipro Finance Ltd., the claimant addressed two letters on 2.1.2007 and 12.3.2007 to execute the sale deed regarding the schedule property as agreed upon in which G.C.C. is situated and without which 20 W.E.G could not be operated. While this being the state of affairs, on 30.3.2007, to the shock of the claimant, it was served with the injunction petition filed by the plaintiff in O.S.No.114 of 2007 (appellant herein) against the claimant, wherein it is stated that he has purchased the suit property from M/s. Wipro Finance by a sale deed dated 27.03.2006 and he has also got exparte injunction in I.A.No.28 of 2007 in O.S.No.114 of 2007 before Sub-Court, Valliyoor. Since the claimant could not operate all its W.E.Gs without G.C.C., it filed an application under order 39 Rule 4 C.P.C in I.A.No.38 of 2007 in O.S.No.114 of 2007 to vacate the injunction order. The plaintiff gave an undertaking in I.A.No.38 of 2007 to the effect that the G.C.C. In Survey No.1153/4 will not be disturbed by him. In the mean time, the claimant filed a suit in O.S.No.135 of 2007 against M/s. Wipro Finance Ltd., and the plaintiff. 2.(d) While this being the state of affairs, suppressing the facts and in violation of his undertaking in O.S.No.114 of 2007, the https://hcservices.ecourts.gov.in/hcservices/ 4 plaintiff has filed the above suit against his brother in law V.R. Renganathan in a collusive manner and got consent decree, without adding the claimant as a party in the above suit since the G.C.C absolutely belongs to the claimant. He has got the consent decree by playing fraud upon the Court. Subsequently the G.C.C was removed by Court amin on 17.11.2007 and the machinaries and other things have been given to the respondent by court aim. Because of the removal of the G.C.C, the claimant company could not operate all its W.E.Gs and thereby it is put to suffer irreparable loss and serious hardships. If the G.C.C. is not reinstated immediately, the generation of electricity from all the W.E.Gs of claimant company would be affected. 3. In the counter filed by 1st Respondent/Appellant herein, the following are averred: 3.(a) The claimant company has purchased all other properties except the plaint schedule property from Wipro Finance Ltd., In the said lands M/s Wescare India Ltd., have erected Wind Mills. The properties originally belonged to one Adhinarayana Thevar, from whom M/s.Wipro Finance Ltd., purchased the property and from M/s.Wipro Finance Ltd., the plaintiff has purchased the said properties on 27.3.2007. The Group Control Centre is in a portion of the plaint schedule property, which belongs to M/s. Wescare India Ltd., and it has agreed in and by its letter dated 4.7.2007 addressed to the plaintiff to remove the G.C.C. The claimant under a misconception attempted to interfere with the plaint schedule property and hence the plaintiff has filed the suit in O.S.No.114 of 2007 for bare injunction and obtained interim injunction also. Before the Court the plaintiff's counsel specifically stated that if M/s. Wescare India Ltd., removes the machinery owned by them, the plaintiff will not be responsible and he will not disturb the G.C.C. It was conceded by the claimant's counsel that they have not purchased neither the plaint schedule property nor the G.C.C from M/s. Wescare India Ltd., 3.(b) Though M/s. Wescare India Ltd., have agreed to remove the G.C.C, they had been dragging. Hence the plaintiff has filed the suit for mandatory injunction. M/s. Wescare India Ltd., appeared through counsel and prayed for time to vacate the machinery. Hence, it is axiomatic that the claimant company has absolutely no title or possession either in the plaint schedule land or upon the G.C.C. The averment that the claimant company is in possession of the plaint schedule property is a blatant falsehood and the agreement with M/s. Wescare India Ltd., and M/s Wipro Finance Ltd., does not include the plaint schedule land or G.C.C. None of the documents filed by the claimant before the Court would prove either title or possession for the suit land or the G.C.C. The plaintiff has properly initiated action against the vendor and the cause of action in this application is entirely different from the one in O.S.No.114 of 2007. Hence the petition may be dismissed. 4. The allegations contained in the counter filed by the 2nd respondent/2nd respondent herein, are as follows: https://hcservices.ecourts.gov.in/hcservices/ 5 4.(a) The claimant company has purchased W.E.Gs from M/s.Wescare India Ltd., under an agreement dated 24.2.2006. The consideration paid was Rs.13.92 crores. The said consideration does not include Group Control Centre. The promoter of the claimant company Subuthi Finance Ltd., is the signatory to the agreement and one Mr.Raja Sugumar who is the Director of Subuthi Finance Ltd and the Vice President of the claimant company has also signed the invoice. In the delivery notes, the said Raja Sugumar has signed. The document would show that G.C.C was not part of the agreement and Wescare never sold the G.C.C under the agreement dated 24.2.2006. The G.C.C is worth Rs.15 crores and M/s. Wescare India Ltd has not agreed to sell the same to the claimant company and they still own the property. 4.(b) As the claimant's company has not honoured the agreement with M/s. Wescare India Ltd., in the purchase of rest of the Wind Mills, it had filed an Arbitration O.P.No.748 of 2007 before the High Court. M/s.Wescare India Ltd., has already agreed to the plaintiff that it would remove the G.C.C to their Putlur site at Andhra Pradesh. Only because of the said undertaking, the plaintiff (appellant) purchased the said property and also other properties. Hence this respondent has no interest in the land purchased by the plaintiff. When the suit was filed by the plaintiff, this respondent reiterated its stand and agreed to vacate G.C.C. And filed a memo through counsel. Further, the defendant has also initiated criminal proceedings against the claimant's company Director for cheating and for violation of agreement. The claimant has wantonly suppressed the pendency of Arbitration O.P. Proceedings and criminal proceedings. Hence the petition has to be dismissed. 5. After hearing both the learned counsel and on scrutiny of the materials on record, the learned Principal District Judge, Tirunelveli has passed an order allowing E.A.No.58 of 2007 in part, declaring that the judgment and decree passed in O.S.No.40 of 2007 dated 17.8.2007 are null and void and directing the decree holder/appellant herein and the judgment debtor/2nd respondent herein to reinstall the G.C.C structure in the land in S.F.No.1153/4 measuring 67 cents in the same condition as it was when it was removed at its own cost. He also directed the decree holder/appellant herein to pay the cost of the petition to the claimant. Aggrieved at the said order, the decree holder/1st respondent is before this Court by way of C.M.A.(MD) No.1467 of 2008. C.M.A. (MD) No. 980 of 2009 6. Aggrieved at the order of the learned Principal District Judge, Tirunelveli, the 2nd respondent in E.A.No.58 of 2007 has preferred C.M.A.(MD) No.980 of 2009. 7. For the sake of convenience, the ranks of parties mentioned in C.M.A.(MD) No.1467 of 2008 are adopted. https://hcservices.ecourts.gov.in/hcservices/ 6 8. In O.S.No.40 of 2007, Ex.P1 is copy of sale deed dated 12.7.2006 for Rs.3,51,060/- executed by M/s. Wipro Finance Private Ltd., in favour of M/s. Indo Wind Energy Limited respect to various extents of lands in various survey numbers. Ex.P-2 is sale deed executed by M/s. Wescare India Ltd., in favour of M/s. Indo Wind Energy Ltd., as regards 70 cents of land in Survey No.1200/2E. Ex.P-3 is copy of another sale deed between the same parties in Ex.P-2, respecting the properties comprised in Survey Nos.1185/2A, 1185/2B and 1155/2 with various extents. The suit property is in Survey Field No.1153/4 which is II Schedule in O.S.No.40 of 2007. Group Control Centre is situated in this Survey Number. It is not found in any of the sale deeds. The 1st respondent herein claimed that due to inadvertence the suit property has been erroneously left out in the sale deed dated 14.07.2006. It is also stated in the claim petition that on 19.10.2006 the said omission was informed to M/s. Wipro Finance Limited and on 23.10.2006, e-mail was sent and thereafter on 02.01.2007 and 12.03.2007 two letters were also addressed. However, the copies of the above said letters have not been produced. 9. It is the definite case of the first respondent that they paid the sale consideration for the G.C.C in the II Schedule Property. But, it was not mentioned in the sale deeds. Hence, it is the burden on the part of the 1st respondent to show that the sale consideration passed under the sale deed was also for the plaint II Schedule property. However, the said matter cannot be gone into in this proceedings since the suits are pending before the Sub-Court Valliyoor, filed by the first respondent and the appellant in CMA MD No.1467 of 2008. Since the allegation as to passing of consideration needs appreciation of evidence on record, such discussion could not be taken up in this proceedings. 10. O.S.No.114 of 2007 was filed by the appellant against the 1st respondent before the Sub-Court, Valliyoor for permanent injunction. O.S.No.137 of 2007 is a suit filed by the 1st respondent before the same Court arraying M/s. Wipro Finance (P) Ltd., and the appellant as defendants for the relief of specific performance of contract and also for declaration that the sale deed dated 27.3.2007 executed by M/s. Wipro Finance (P) Ltd., in favour of the Appellant is invalid and not binding upon the 1st respondent and also for permanent injunction restraining the appellant from claiming right upon the sale deed. Both the suits are pending. 11. The appellant has filed I.A.No.28 of 2007 in O.S.No.114 of 2007 and obtained interim injunction against the 1st respondent, who in turn filed I.A.No.30 of 2007 to vacate the interim injunction before the Sub-Court, Valliyoor. While the matter was taken up before the said court, the appellant had made an endorsement of undertaking which reads as follows: "The G.C.C in Survey No.1153/4 will not be disturbed by the petitioner and if the Wescare company removes it as per Ex.P-6 the petitioner is not liable for the same." https://hcservices.ecourts.gov.in/hcservices/ 7 12. Afterwards, the appellant has filed O.S.No.40 of 2007 against the 2nd respondent for mandatory injunction directing the 2nd respondent company to remove the G.C.C from the S.F.No.1153/4. After receipt of summons in the case, the 2nd respondent appeared through lawyer and filed a memo submitting to decree and prayed time for removal of all materials from the plaint schedule property. It is contended on behalf of the 1st respondent that having given an undertaking in O.S.No.114 of 2007 before the Sub Court, Valliyoor, the appellant suppressing the fact, filed O.S.No.40 of 2007 before the Principal District Court, Tirunelveli, in a collusive manner and obtained consent decree which is a fraud played upon the Court. 13. On the contrary, it is argued by the appellant's side that the undertaking is unambiguous that it was for the second respondent to remove the G.C.C from the schedule property within the time agreed by him and if he removes it, the appellant is not responsible. The said undertaking was given on 11.7.2007. Much earlier, on 10.4.2007 the 2nd respondent/Wescare India Ltd., addressed a letter to the appellant stating that they are under the process of shifting the G.C.C. to their Putlur site, Andhra Pradesh and this appellant might wait for one month. From this letter, it transpires that on 7.4.2007 a letter was sent by the appellant to the second respondent intimating the purchase of property from M/s. Wipro Finance Ltd. The said sale deed obtained by the appellant from M/s. Wipro Finance Ltd., is dated 27.3.2007. M/s. Wipro Finance Ltd, had earlier purchased the suit property from one Adhinarayana Thevar by means of a sale deed dated 27.1.1995. It is stated by the appellant that the second respondent who owned the superstructure in the suit property viz., G.C.C. agreed to shift the same and only on that promise the appellant purchased the property. It is also mentioned in the Counter that by means of a letter dated 4.7.2007, the second respondent had agreed to remove the G.C.C. The above said letter dated 10.4.2007 has been marked as Ex-R2. 14. It is also contended by the 1st respondent that the decree obtained in O.S.No.4l0 of 2007 by the appellant is vitiated by fraud and it has to be declared as null and void. Per contra, it is contended by the appellant that the claim petition itself is not maintainable for the reason that the provisions under Order 21 Rule 99 and 101 of CPC are applicable only to immovable property, that they are not applicable to movable property, such as G.C.C. etc., and the claim petition praying the Court to direct reinstallation of movable properties does not lie under these provisions. 15. In the back drop of the these circumstances, the points for consideration which have arisen for consideration are as follows: 1. Whether the claim petition filed by the first respondent is maintainable under Order 21 Rule 99 C.P.C.? 2. Whether the decree passed in O.S.No.40 of 2007 is vitiated by fraud? https://hcservices.ecourts.gov.in/hcservices/ 8 3. Whether the appellant in C.M.A.No.1467 of 2008 has foul play by inflating the value of the suit and filed it before the Principal District Court? Point No.1: 16. Order 21 Rule 99 and 101 C.P.C. read as follows: 99. Dispossession by decree-holder or purchaser:- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. 2. Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. HIGH COURT AMENDMENT (MADRAS): For the words "other than the judgment-debtor" in brackets substitute the words "other than those mentioned in Rule 98". 101. Question to be determined:- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." 17. As far as Rule 99 is concerned, if any person other than the judgment debtor is dispossessed of immovable property by the decree holder, the person aggrieved, may file application as regards such dispossession. Much was argued as to whether G.C.C structure have to be treated as movable property or immovable property. G.C.C is certain machineries which are essential for running the W.E.G. as per pleadings. Hence it is patent that those structures could be removed from the earth. In this context, the learned counsel for the appellant would contend that G.C.C structure could be unearthed from the land and hence it could not be construed to be immovable property. On the contrary, the learned Senior Counsel Mr.T.R. Rajagopalan appearing for the 1st respondent would argue that as per the settled principles, the structures embedded to the earth have to be treated as immovable property and they have be construed to be movable properties and hence the petition under the above said provision is certainly maintainable. https://hcservices.ecourts.gov.in/hcservices/ 9 18. In support of his contention, he placed reliance upon a decision of the Supreme Court reported in 2001 SCC 633 [Duncans Industries Ltd., v. State of U.P. And Others] in which it is held as follows: "8. Considering the question whether the plant and machinery in the instant case can be construed as immovable property or not, the High Court came to the conclusion that the machineries which formed the fertilizer plaint, were permanently embedded in the earth with an intention of running the fertilizer factory and while embedding these machineries the intention of the party was not to remove the same for the purpose of any sale of the same either as a part of a machinery or scrap and in the very nature of the user of these machineries, it was necessary that these machineries be permanently fixed to the ground. Therefore, it came to the conclusion that these machineries were immovable property which were permanently attached to the land in question. While coming to this conclusion the learned Judge relied upon the observations found in the case of Reynolds v. Ashby & Son [1904 AC 466 : 73 LJ KB 946] and Official Liquidator v. Sri Krishna Deo [AIR 1959 All 247 : (1959) 29 Comp Cas 476]. We are inclined to agree with the above finding of the High Court that the plant and machinery in the instant case are immovable properties. The question whether a machinery which is embedded in the earth is movable property or an immovable property, depends upon the facts and circumstances of each case." 19. It has also been observed in the above said decision that to ascertain whether the machinery embedded in the earth is movable property or immovable property, the facts and circumstances of each case have to be gone into. It is also held by the Apex Court that the Court, dealing with the said question, will have to take into consideration the intention of the party which embedded the machinery and also the intention of the party who intends alienating that machinery. 20. On a careful scrutiny of the circumstances, it is to be held that so long as the machinery kept embedded in the earth, they have to be treated as immovable properties and once they removed, the structures would become movable property. The decree was passed in O.S.No.40 of 2007 for mandatory injunction directing the second respondent to remove the superstructure in the land. At the time of passing of the decree, the structures got embedded in the earth and at that time they ought to have been immovable properties. The first respondent got aggrieved at the removal of the superstructure which kept embedded in the earth. The intention of the parties has https://hcservices.ecourts.gov.in/hcservices/ 10 also to be gone into while ascertaining the nature of the property.