Pradeep Nandrajog, J.
1. Though arguments were addressed by the parties on all the 3 captioned applications, counsel conceded that depending upon the decision in is No. 5270/2005, other 2 applications be decided.
2. is No. 5270/2005 has been filed by the defendant praying that the suit be dismissed as not maintainable. Order 7 Rule 11 CPC of the Code of Civil Procedure has been invoked.
3. 3 grounds have been urged while invoking Order 7 Rule 11 of the Code of Civil Procedure. The first is the unconditional withdrawal of CS(OS) No. 211/2003. The second ground urged is that in view of pendency of CS(OS) No. 2123/2003, second suit on the same cause is not maintainable. The 3rd plea is that the claim is barred by the limitation.
4. Needless to state, allegation under Order 7 Rule 11 CPC requires the court to treat each and every averment made in the plaint to be correct. However, pleadings in the plaint have to be read meaningfully.
5. Mahender Kumar Lamba (Plaintiff), Satender Prakash Lamba (Defendant), Jatender Prakash Lamba and Jogender Kumar Lamba are related to each other.
6. They appeared to have inherited enough wealth from their ancestors evidenced by the fact that they keep on litigating with each other on the same subject matter. Present suit is the 7th suit filed by the parties pertaining to the same subject matter.
7. As disclosed in para 15 of the plaint, the 6 suits which were filed earlier, some of which are pending, are as under:
a. Suit No. 890/02 titled as 'Mahender Kumar Lamba v. Standard Chartered Bank',
b. Suit No. 1153/02 titled as 'Jogender Kumar Lamba v. Standard Chartered Bank',
c. Suit No. 1314/02, titled as 'Jatender Prakash Lamba v. Standard Chartered Bank',
d. Suit No. 211/03, titled as 'Mahender Kumar Lamba v. Standard Chartered Bank',
e. Suit No. 432/03, titled as 'Mahender Kumar Lamba v. Standard Chartered Bank'.
f. Suit No. 2123/03 titled as 'Jogender Kumar Lamba v. Satendar Prakash Lamba.
8. Origin of all suits may be noted.
9. Plaintiff, defendant, Jogender Kumar Lamba and Jatender Prakash Lamba are co-owners of a commercial building bearing No. 2, Community Center, Basant Lok, Vasant Vihar, New Delhi-110057.
10. All 4 joined to execute a registered lease dated 29th March, 1996 with Standard Chartered Bank (here-in-after referred to as Bank) letting out the basement, ground floor and mezzanine floor of the property to the bank at a monthly rent of Rs. 3.25 lacs. Lease was to commence from 1.4.1996. Initial duration of the lease was 3 years. It was extendable by 2 terms of 3 years each. In case of enhancement, the monthly lease rental would have increased to Rs. 4,06,250/- w.e.f. 1.4.1999 and Rs. 5,48,438/- w.e.f. 1.4.2002.
11. At the time of execution of the lease, a security deposit in sum of Rs. 18.8 lacs was received. Security deposit was to be proportionately increased as and when lease would have been extended. It had to be increased to Rs. 23.5 lacs if lease was extended w.e.f. 1.4.2002.
12. Simultaneously with the execution of the lease, a financial performance guarantee agreement was entered into between the 4 co-owners and the bank on 29th March, 1996.
13. As per the said financial performance guarantee agreement the bank paid Rs. 2.2 crores to the 4 co-owners. The agreement envisaged that if lease was renewed w.e.f. 1.4.1999, financial performance guarantee would be enhanced to Rs. 2.75 crores and on the second renewal taking place the financial performance guarantee would stand enhanced to Rs. 3,71,25,000/-. In other words sum of Rs. 55 lacs and Rs. 96.25 lacs had to be credited to the account of the 4 co-owners as financial performance guarantee if first and second renewal respectively takes place.
14. The financial performance guarantee agreement dated 29th March, 1996 mandated that the financial performance guarantee amount would be deposited by the bank in joint account of all co-owners bearing No. 015/29/7204 opened by the bank at its Parliament Street Branch. The Account No. was subsequently changed to 522-1-026173-7.
15. As regards the monthly rent, 4 accounts were opened with the bank by the 4 co-owners. In said accounts 1/4 rent, in each account, had to be deposited.
16. The 4 accounts are as under:
(a) Mahender Kr.Rana (Plaintiff) .... 522-1-026433-7
(b) Satender Prakash Lamba (Defendant) ...522-1-026170-2
(c) Jogender Kumar Lamba ... 522-1-026171-0
(d) Jatender Prakash Lamba ... 522-1-026172-9
17. At the time of initial lease the bank deposited Rs. 2.2 crores in the joint account bearing No. 015/29/7204.
18. In the year 1998 first floor of the premises was also taken on lease by the bank. Simultaneously with the said lease, another financial performance guarantee was executed whereunder sum of Rs. 52 lacs was paid. This amount was also deposited in the joint account bearing No. 015/29/7204.
19. Vide letter dated 14.10.2000 the bank wrote to the co-owners expressing a desire to have changes in the first lease. The bank offered that if the amount deposited pursuant to the financial performance guarantee could be returned to the bank, the bank was ready to proportionately increase the rent calculated @ Rs. 100 per square feet + interest on deposit @ 13%.
20. On 3.1.2002 the bank unilaterally reduced the monthly rent as also the security deposit. Financial performance guarantee amount pertaining to the ground floor premises was also reduced. The bank terminated the lease of the first floor and offered vacant possession but demanded repayment of the security amount.
21. At that stage one after another, 6 suits as noted in para 7 above were filed.
22. Since I have to decide whether in view of an unconditional withdrawal of the Suit No. 211/2003 and whether in view of pendency of Suit No. 2123/2003, present suit is maintainable, it would be useful to note the cause of action pleaded in said suits as also the present suit and the relief prayed for. Since Suit No. 890/2002 is sought to be got revived I may also note cause of action pleaded in said suit.
23. Cause of action pleaded in said 3 suits is as under:
CS (OS) No. 211/03
The cause of action for the present suit, arose on 15.07.1998, when the parties entered into an Agreement. It also arose on each and every date that the Plaintiffs paid the security and the FPG amount in terms of the said agreements. It also arose in favor of the Plaintiffs and against the Defendant No. 1, when the Defendant No. 1 failed and neglected to enhance the rent in terms of the said Agreement. The cause of action further arose when Defendant No. 1 allegedly terminated the Lease. It further arose when the Defendant No. 1 failed to adhere to the mandate of the account holders, banking guidelines and the provisions of law. It further arose when the Defendant No. 1 failed to hand over the possession of the Leased premises and adjust the security amount from the Joint Account and/or rental dues as instructed by the Plaintiffs. The present suit is within limitation.
CS (OS) No. 890/02
The cause of action in the present case firstly arose on 1.5.1999, when the Defendant Bank defaulted to deposit the agreed enhanced monthly Lease rent and also arose every month thereafter when the Defendant Bank defaulted to deposit the agreed enhanced monthly Lease rent and the Enhanced security amount and the enhanced FPG amount and again arose on 2.1.2002 when the Defendant Bank partly deposited the Lease rent amount in the Plaintiffs account and further arose on 1.4.2002 when the Defendant Ban failed to deposit the enhanced Lease Rent and the Security Amount and FPG amounts as per the terms of the lease deed dated 29.3.1996 and the cause of action continues to arise with each default. The cause of action is a continuing one.
CS (OS) No. 2123/03
That the cause of action arose in favor of Plaintiff and Defendant on all the occasion, when the parties leased out the said Joint Property. The cause of action also arose on various days when the Defendant No. 1 committed acts to the prejudice and to the detriment of the Plaintiffs and Defendants overruling the plea of partition and rendition of accounts. The cause of action is continuous. Thus the present suit is within limitation.
24. In the instant suit, stating the aforesaid facts pertaining to the 2 leases and attempt by the bank to resile from the terms of the 2 leases, the plaintiff has disclosed about 5 suits (except Suit No. 2123/2003) and has stated that during the pendency of the suits bank offered a settlement. That plaintiff was interested in the settlement but the defendant who had illegally withdrawn and misappropriated the security deposit and the amount deposited under the financial performance guarantee account obstructed the settlement. That matter lingered on. Finally, it is pleaded (see para 20 of the plaint) as under:
Since the said security amount and FPG was to be adjusted, failing which the amounts were to carry an interest at exorbitant rate, and with the purpose of saving the Suit property, all the other co-owners jointly along with the Plaintiff (except the Defendant) decided to refund the said amount to the Bank by way of adjustment out of the future rent being received by them from the bank.
25. In para 21 of the plaint, it is stated that since all co-owners agreed, except the defendant, on 24.2.2005 the suits were withdrawn.
26. I may hasten to add that averments made in para 21 are incorrect as all suits were not withdrawn. I would be noting the fate of each suit as I note the pleadings in the different suits.
27. In para 22 of the plaint it is stated that the plaintiff and 2 co-owners paid excess amount to the bank without prejudice to their right to recover the same from the defendant. However, strangely enough it is pleaded in para 22 that all co-owners executed a fresh lease agreement with the bank on 3.2.2005.
28. In para 23 it is pleaded that terms of the fresh lease agreement required certain amounts to be refunded to the bank, thereforee plaintiff and 2 co-owners namely Jogender Kumar Lamba and Jatender Prakash Lamba had to refund certain amount to the bank. Defendant did not contribute a penny.
29. Plaintiff accordingly states that he has suffered the following losses which have to be made good by the defendant:
i. Ground Floor Loss of Rent/interest = Rs. 73,80,529/-ii. First Floor loss of interest = Rs. 9,77,995/-iii. Refund of FPG/Security amount to Standard Chartered Bank = Rs. 50,88,537/-
30. In paras 25 and 26, plaintiff has pleaded as under:
25. Since the Plaintiff has been deprived of using the Suit amount, he is also entitled to pendente lite and future interest @ 12% per annum on the Suit claims until the payment of the amount claimed. the Plaintiff is claiming the above interest since this is the commercial rate of interest charged by the Banks on commercial lendings. That the cause of action in the instant case arose around 1998 when the Defendant started withdrawing unspecified amount from the above FPG joint account No. 522-1-026173-7, without the consent, concurrence and knowledge of the Plaintiff and other co owners. The cause of action further arose when the Defendants deposited/refunded Rs. 50,00,000/- (Rupees Fifty Lacs only) in the said joint FPG account sometime in the year 2001. The cause of action further arose when the FPG amounts became repayable by the co-owners to the Bank in the year 2005 and when the Defendant failed to make the repayment in terms of the lease deed to the Bank. The cause of action further arose when upon failure on the part of the Defendant to repay the FPG and security amount to the Standard Chartered Bank, the plaintiff was constrained to pay a sum of Rs. 43,25,000/- (Rupees Forty Three Lacs and Twenty Five Thousand only) to the Bank towards the repayment of FPG amount to the Bank. The cause of action is a continuing one and arises from day to day.
26. That FPG agreement dated 29.3.1996 was executed at New Delhi, the amount of Rs. 2,20,00,000/- (Rupees Two Crores and Twenty Lacs only) was as per agreement dated 29.6.1996 and another 52,00,000/- (Fifty Two Lacs only) was deposited under the FPG agreement dated 15.7.1998 deposited in the joint account No. 522-1-026173-7 which was opened at the Standard Chartered Bank, Parliament Street, New Delhi-110057 and Defendant has withdrawn various amounts from the joint account without consent and knowledge of the Plaintiff. The fresh lease of the property was signed in New Delhi on 3.2.2005 and the cause of action has arisen within the territorial jurisdiction of this Hon'ble Court and thus this Hon'ble Court has the jurisdiction to try the present suit.
31. In Suit No. 890/2002 prayer made by the plaintiff who was plaintiff of said suit is to pass a decree in sum of Rs. 28,77,525.50 against the bank. A decree of mandatory injunction is also prayed against the bank directing the bank to comply with the terms of the lease agreement dated 29.3.1996 and the financial performance guarantee agreement.
32. Cause pleaded in the said suit is the unilaterally reduction by the bank to decrease the lease rental of the ground floor as also not to proportionately increase the financial performance guarantee amount.
33. Having raised the issue that bank could not unilaterally reduce the rent, and having raised the issue that the plaintiff had suffered a loss due to unilateral decrease in the rent, plaintiff chose to unconditionally withdraw the suit.
34. Suit was dismissed as withdrawn recording that a compromise had been arrived at. Dismissal order is dated 24th February, 2005.
35. I may note one relevant fact. Notwithstanding neither party informing me, perusal of the record of Suit No. 890/2002 shows that Satender Prakash Lamba who was imp leaded as defendant No. 3 has filed an application under Order 23 Rule 1(A) of the Code of Civil Procedure praying that keeping in view the nature of the suit, withdrawal by the plaintiff behind his back entitled him to be transposed as a plaintiff and entitled him to have the suit restored.
36. The said application registered as is No. 5096/2005 is still pending adjudication. Notices have been issued to the non-applicants.
37. Nothing much turns on the averments made in Suit No. 1153/2002 and I thereforee note no further save and except that the said suit has also been disposed of without any adjudication on merits.
38. Suit No. 1314/2002 in which Jatender Prakash Lamba was a plaintiff stands withdrawn vide order dated 24th February, 2005. Pleadings and claim of Jatender Prakash Lamba are identical to the pleadings made by the plaintiff herein as plaintiff in Suit No. 890/2002. Jatender Prakash Lamba also prayed for damages against the bank.
39. Suit No. 211/2003 has 2 plaintiffs being present plaintiff and Jogender Lamba. The said suit also referred to the 2 leases, joint FPG account and individual accounts in which rent had to be deposited. Alleging that the unilateral action of the bank to reduce the rent and withdraw the money from the FPG account was illegal, prayer made is to pass a decree against the bank in terms of the agreed rent. Further prayer is to direct the bank to re-deposit the amount withdrawn from the FPG account together with interest thereon.
40. The said suit was also dismissed as withdrawn on 24th February, 2005.
41. Suit No. 432/2003 again has 2 plaintiffs, namely, present plaintiff and Jogender Lamba. The said suit was also dismissed as withdrawn on 24.2.2005.
42. In the said suit prayer made is to pass a decree of possession against the bank in respect of different portions of the suit property taken on lease under the 2 leases. Arrears of rent to be paid have also been prayed for. The said suit was also dismissed as withdrawn on 24th February, 2005.
43. Suit No. 2123/2003 has been filed by Jogender Lamba impleading the 3 other co-owners i.e. Satender Prakash Lamba, Jatender Lamba and Mahender Kumar Lamba as defendants. Stating the facts pertaining to ownership of the property, the 2 leases in favor of the bank, the dispute with the bank, the withdrawal from the joint account as well as individual accounts by Satender Prakash Lamba and Jatender Lamba, prayer made is to partition the property and direct Satender Prakash Lamba to render accounts.
44. The said suit is pending.
45. Plaintiff is defendant No. 3 in Suit No. 2123/2003.
46. On 10.11.2005 following order was passed in Suit No: 2123/2003:
%10.11.2005Present:Mr. Rajiv Talwar with Ms. Manjusha Wadhwa, Advocates for the plaintiffMr. Sanjeev Narula, Advocate for defendant No. 1.Defendant No. 2 ex parte vide Order date 20.22.05Mr. Sanjeev Narula, Advocate for DefendantNo. 3.
+IA No. 2047/2005 (O-7, R-14 (ii) CPC) in CS (OS) No. 2123/03
This is an application filed by the plaintiff seeking directions against the defendants to file the original documents. Learned Counsel for defendant No. 1, the real contesting party, states that he has obtained instructions and the original documents are not in his possession. It is stated that the documents were in possession of the father of defendant No. 1 and the same are not traceable.
In view of the aforesaid, no such direction can be issued and the parties are permitted to file certified copies of the documents.
Application stands disposed of.
+IA No. 2360/2005 (Q-39, Rs - 1&2 CPC)
+IA No. 3793/2005 (O-39, R-1 CPC)
+IA No. 8088/2005 (Under Section 151 CPC)
The plaintiff has filed the suit for partition of the suit property in which all the parties are stated to have 1/4th share each. Defendants No. 2 and 3 are not opposed to the claim of the plaintiff, though Written Statement has been filed only by defendant No. 3. Defendant No. 2 has not put in appearance. Defendant No. 1 is contesting the suit and claims that there was an oral family settlement arrived at between the father of the parties in terms whereof the suit for partition is not liable to be decreed.
Insofar as physical possession and enjoyment of the premises are concerned, it is not disputed that the basement, mezzanine and ground floor of the property had been let out to Standard Chartered Bank. Originally, the tenancy was made by all the parties jointly.
In view of the disputes, certain proceedings were filed against the Bank and a settlement was arrived at to which defendant No. 1 has not been a party. The plea of the other parties is that defendant No. 1 deliberately kept away while defendant No. 1 pleads that the arrangement for lease arrived at with the Bank is not on the best terms and there are collateral reasons for the lease being extended. Defendant No. 1 is in physical possession and enjoyment of the first and third floors, while second floor is in possession of defendant No. 3. Defendant No. 3 states that his personal company, namely, M/s. M.S. Technologies is running its business from the premises in question.
The only question, thus, is as to what is the interim arrangement to be arrived at pending consideration of the suit. Defendant No. 1 will have to establish that there is any oral family settlement whereby the rights of the parties have been affected. Till such time, it will have to be presumed that all the parties have 25% share in the property at least for the purpose of disposal of the application.
In view of the shares of the parties being 25% each, there being a dispute about what should be the terms and conditions for letting out to Standard & Chartered Bank, defendant No. 1 being certainly in possession of a much larger share than 25% being in possession of the first and third floors, I consider appropriate that the following arrangement shall ensure for the benefit of the parties pending final decision of the suit:
(1) The rentals and security deposit will continue to be enjoyed by the plaintiff, defendants No. 2 and 3 in respect of basement, mezzanine and ground floor. Since defendant No. 1 is in possession of much larger share than 25%, he disputes bona fide of the terms arrived at by the other parties with the Bank, it would be appropriate that the remaining 1/4th share of the rentals/security deposit be enjoyed by the plaintiff and defendant No. 2, who are not in possession of any other portion of the property.
(2) Defendant No. 3 shall continue to be in possession of the second floor of the property, but shall not let out, alienate, encumber or create any third-party interest in that portion of the property.
(3) Defendant No. 1 will continue to enjoy first and third floors of the property in question, but shall not encumber, alienate, let out or create any third-party interest in that portion of the property.
In case at any state of time, the Bank vacates the property, it is open for the parties to approach the Court for necessary directions in that behalf.
(4) Defendant No. 1 will provide access to terrace to the other parties for any repairs which may be required to be carried out since the terrace rights cannot be exclusively held by defendant No. 1.
The aforesaid arrangement is without prejudice to the rights of the parties to claim accounts in respect of the property in question taking into consideration the shares of the respective parties. Needless to say, the aforesaid observations will not affect final adjudication of the suit.
Applications stand disposed of.
+CS (OS) No. 2123/03
The following issues are framed:
(1) Whether there was any oral family settlement superseding the rights of the parties in terms of the documents executed in their favor? OPD-1
(2) Whether the plaintiff is entitled to seek partition of the property? OPP
(3) Whether the plaintiff is entitled to rendition of accounts? If so, for which period? OPP
(4) Relief.
No other issues is pressed.
Parties to file certified copies of documents and list of witnesses within 4 weeks. Plaintiff to file affidavit of examination-in-chief within 8 weeks. The Joint Registrar to act as the Local Commissioner to record evidence. On completion of evidence of the plaintiff, the defendants are permitted to file the affidavits of examination-in-chief.
Since none has put in appearance on behalf of defendant No. 2, defendant No. 2 is proceeded ex parte.
List before the Joint Registrar for directions on 24.01.2006.
On completion of trial, list before the Court.
47. It is settled law that in a suit for partition each plaintiff is a defendant and every defendant is a plaintiff.
48. Mahender Kumar Lamba can also seek rendition of accounts in Suit No. 2123/2003.
49. When did the cause of action accrue to file the present suit?
50. In para 30 above I have extracted averments in paras 24 and 25 of the present suit.
51. I have noted the general nature of averments and the backdrop of facts constituting the cause of action. It is evident that the bundle of facts to be established to sustain action in the present suit is the lease dated 29th March, 1996 and the second lease executed in the year 1998, to be added thereto the dispute raised by the bank by reducing the FPG deposit on 14.10.2000 followed by reduction in the monthly lease rent pertaining to the ground floor on 3.1.2002, followed by the fact that the plaintiff and some co-owners were agreeable to the suggestion of the bank to increase the rent if financial performance guarantee amount was returned to the bank and their inability to effect the settlement on account of the fact alleged by them that Satender Prakash Lamba had illegally withdrawn the monies.
52. Cause of action to file a suit against Satender Prakash Lamba obviously accrued in the year 2002, to be precise, on 3.1.2002 when the bank unilaterally reduced the rent.
53. The fact that cause of action was accepted as having accrued on 3.1.2002 is evident from the pleadings of the parties in the 6 suits filed earlier on.
54. How parties thereafter settled the disputes with the bank would not give rise to a fresh cause of action.
55. I am not impressed with the argument of Ms. Manjusha Wadhwa, learned Counsel for the plaintiff, that plaintiff and 2 other co-owners effected a settlement without prejudice to their rights against Satender Prakash Lamba.
56. If Satender Prakash Lamba had committed defaults, these were to the knowledge of the plaintiff. Defaults, if any, were committed by him prior to the year 1999.
57. The claim in the suit which is filed on 17.5.2005 is thereforee ex-facie barred by limitation.
58. But, plaintiff need not worry, Suit No. 2123/2003 filed by Jogender Lamba in which plaintiff is defendant No. 3 seeks a decree of rendition of accounts from Satender Prakash Lamba. In said suit, plaintiff, who is defendant No. 3 could always be transposed as plaintiff. Decree in said suit will ensure for the benefit of the plaintiff.
59. The said suit is based on the same allegations on which present suit is based. Satender Prakash Lamba would have to account for every penny, if he has illegally withdrawn any money from the joint account. If he has caused any loss to the other co-owners, he would be accountable therein. As noted in para 46 above, vide order dated 10.11.2005 issues have been framed in Suit No. 2123/2003. Issue No. 3 is whether defendant in the instant suit is liable to render accounts pertaining to the suit property.
60. Since in a suit for partition every plaintiff is a defendant and every defendant is a plaintiff, present suit would amount to a second suit on the same cause of action with identity of relief (material identity and not identity of language).
61. The present suit would thereforee not be maintainable in as much as on the same cause another co-owner is litigating under Suit No. 2123/2003.
62. I allow is No. 5270/2005.
63. IAs 5269/2005, 4048/2005 have become infructuous and need no adjudication.
CS(OS) No. 697/2005
The plaint is rejected under Order 7 Rule 11 CPC.
No costs.