Madras High Court
Sangam Sahasrabudhe vs P.Ravindran …1St on 26 March, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(MD).Nos.2847 & 2853 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 27.02.2025
DELIVERED ON: 04.03.2025
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(MD).Nos.2847 & 2853 of 2024
and CMP(MD).Nos.16278 of 2024 and 16289 of 2024
CRP(MD).No.2847 of 2024
Sangam Sahasrabudhe
S/o.Mukund Sahasrabudhe
Power holder of the Managing Director
M/s.Reliance Industries Limited
Registered office at
3rd Floor, Maker Chambers IV
222, Nariman Point, Mumbai 400 021 ....Petitioner/Petitioner
1st Defendant
Vs
1.P.Ravindran ...1st Respondent/1st Respondent/Plaintiff
2.Balasubramanian
Managing Director
Ms/.ESP Asia Pvt.Limited
No.10, 17, 1st floor, Neco Chamber, Plot No.48
Sector II CBD Belapur
Navi Mumbai 400 614 (also at)
No.3, Sreehari, Plot No.11
Sector No.40, Nerul, Navi Mumbai 400 706
Maharashtra State.
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C.R.P.(MD).Nos.2847 & 2853 of 2024
3.The Managing Director
Ms/.ESP Synergy (MD) SDN BHD
E-10-2, Plaza Mount, Kiara
No.2, Jalankiara, 50480 Kuala lumpur
Malaysia (also at)
No.67, Julan Raja Chulan
Kuala lumper, Federal Territory of Kuala Impur
Malaysia
4.The Managing Director
M/s.The RECRON(M)
SDN BHD, Nilai, Malaysia
Office at Level 9, Wisma Goldhill 67
Jalan Raja Chulan
50200 Kuala Lumpur
Malaysia ....Respondents 2 to 4/Respondents 2 to 4
/Defendants 1 to 3
CRP(MD).No.2853 of 2024
Sameer Thacker
S/o.Ashwin Thacker
Office at Level 9, Wisma Goldhill 67
Janan Raja Chulan
50200 Kuala Lumpur
Malaysia
Representing for the Managing Director
M/s.The RECRON (M)
SDN BHD, Nilai, Malay ....Petitioner/Petitioner
4th Defendant
Vs
1.P.Ravindran ...1st Respondent/1st Respondent/Plaintiff
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C.R.P.(MD).Nos.2847 & 2853 of 2024
2.The Managing Director
M/s.Reliance Industries Limited
Office at
3rd Floor, Maker Chambers IV
222, Nariman Point
Mumbai 400 021.
3.Balasubramanian
Managing Director
Ms/.ESP Asia Pvt. Limited
No.10, 17, 1st floor, Neco Chamber, Plot No.48
Sector II CBD Belapur
Navi Mumbai 400 614 (also at)
No.3, Sreehari, Plot No.11
Sector No.40, Nerul, Navi Mumbai 400 706
Maharashtra State.
4.The Managing Director
Ms/.ESP Synergy (M) SDN BHD
E-10-2, Plaza Mount, Kiara
No.2, Jalankiara, 50480 Kuala lumpur
Malaysia (also at)
No.67, Julan Raja Chulan
Kuala lumper, Federal Territory of Kuala Impur
Malaysia
....Respondents 2 to 4/Respondents 2 to 4
/Defendants 1 to 3
PRAYER In CRP(MD).No.2847 of 2024: Civil Revision Case is filed
under Article 227 of Constitution of India, to call for the records and set
aside the fair and order and decreetal order in I.A.No.3 of 2023 in
C.O.C.No.3 of 2023 dated 26.03.2024 on the file of the Principal District
Judge, Kanyakumari at Nagercoil and allow the civil revision petition.
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C.R.P.(MD).Nos.2847 & 2853 of 2024
PRAYER In CRP(MD).No.2853 of 2024: Civil Revision Case is filed
under Article 227 of Constitution of India, to call for the records and set
aside the fair and order and decreetal order in I.A.No.1 of 2023 in
C.O.C.No.3 of 2023 dated 26.03.2024 on the file of the Principal District
Judge, Kanyakumari at Nagercoil and allow the civil revision petition.
For Petitioner : Mr.K.Mahesh
in CRP.No.2847 of 2024
: Mr.K.Mahesh
For Mr.J.Kingslin
in CRP.No.2853 of 2024
For Respondents :Mr.V.Murugan
for R1 in both revisions
: R2 to R4 given up
in both revisions
COMMON ORDER
These two revision petitions have been filed by the 1st and 4th
defendants in C.O.S.No.3 of 2023 on the file of the Principal District and
Sessions Court, Kanyakumari at Nagercoil challenging the dismissal of
I.A.Nos.1 and 3 of 2023 by the trial Court.
(A)Facts leading to the filing of these revision petitions are as
follows:
2.The first respondent herein as plaintiff had filed the above said
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C.R.P.(MD).Nos.2847 & 2853 of 2024suit for the relief of recovery of a sum of Rs.39,22,000/-. It is the case of
the plaintiff that the fourth defendant company is a sister concern of the
first defendant company. The first defendant company had directed the
fourth defendant to issue a letter of intent to the second defendant
company for the purposes of installation of mechanical and piping works
for six spinning lines at Malaysia. The second defendant which is the sister
concern of the third defendant and the first defendant have jointly formed
the fourth defendant company for mobilisation of man power and technical
staff from India to Malaysia for erection and commissioning of six
spinning lines at a lesser cost.
3.It is the further contention of the plaintiff that he received an
offer letter from the third defendant company on 16.07.2011 for a period of
one year as Branch Manager to be stationed at Malaysia. He was promised
to pay a monthly salary of Malaysian Ringgit 20000/RM per month during
the contract period of one year. Though he received first month salary in
December 2011, thereafter the salary was not paid from January 2012 to
July 2012. Before leaving India, the third defendant had promised that the
plaintiff’s dues would be credited to his bank account in India.
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4.After reaching India, there was no response from the
defendants despite several e-mails and phone calls and request letters.
Finally the plaintiff had approached Indian embassy at Malaysia by way of
his request dated 04.07.2024. Since there was no response, the plaintiff
had filed WP(MD).No.22399 of 2015 (P.Ravindran Vs. The Secretary,
Ministry of Overseas Indian Affairs (Emigration Division) and others) on
11.12.2015. The said writ petition was disposed of on 10.11.2022 granting
liberty to the plaintiff to pursue his remedy before the proper forum. The
plaintiff had further contended that he had approached the District Legal
Services Authority Kanyakumari at Nagercoil on 31.03.2023. The
defendants 1 and 3 did not enter appearance and the defendants 1 and 4
after entering appearance stated in writing, that they are not inclined to
take part in mediation. Therefore, the present suit was filed seeking
recovery of money from the defendants.
5.Pending suit, the first defendant had filed I.A.No.3 of 2023
and the fourth defendant had filed I.A.No.1 of 2023 under Order 7 Rule 11
of C.P.C to reject the plaint on the following grounds:
a)The claim of the petitioner for arrears of salary is for
the period between January 2012 to July 2012. Whereas the suit
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C.R.P.(MD).Nos.2847 & 2853 of 2024has been filed only on 17.04.2023 which is clearly barred by
limitation. The writ petition before the High Court was also filed
only after the period of limitation has got expired. Therefore,
filing or disposal of the writ petition on 10.11.2022 cannot be
cited as a ground for extension of period of limitation.
b)The alleged cause of action for the plaintiff has arisen
only in Malaysia. No apart of cause of action has arisen within the
jurisdictional limits of the Principal District Court, Kanyakumari.
c)The letter of offer was given to the plaintiff only by
the third defendant. There is no employer employee relationship
between the first and fourth defendant on one side and the
plaintiff on other side. The gate-pass issued by the fourth
defendant cannot establish the employer employee relationship.
Hence, there is no cause of action as against the defendants 1 and
d)The claim for salary is not a commercial dispute and
therefore, the suit cannot be tried by commercial Court.
6.A counter was filed by the plaintiff contending that the offer
letter and other communications were received by the plaintiff within the
jurisdiction of the Principal District Court, Kanyakumari and therefore,the
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C.R.P.(MD).Nos.2847 & 2853 of 2024
said Court has got jurisdiction. It was further contended that since the
plaintiff was employed as a Branch Manager for carrying out installation
operations, the said dispute is only a commercial dispute. It was further
contended that the suit has been filed within a period of three years from
the date on which the writ petition was disposed of by the High Court
which granted liberty to pursue proper remedy. The first and fourth
defendants have engaged the second and third defendants for mobilisation
of man power. The first and fourth defendants being principal employers,
certainly the cause of action is available as against them also.
7.The trial Court after considering the submissions made on
either side, has arrived at a finding that in the suit there appears to be no
cause of action arising out of any commercial contract. The trial Court
without going into the issue of limitation, has proceeded to hold that the
plaint cannot be rejected in part as against the defendants 1 and 4 alone.
Based upon the said findings, the trial Court has dismissed the application
filed by the defendants 1 and 2 under Order 7 Rule 11 of C.P.C.
Challenging the same, the present civil revision petition has been filed by
the concerned defendants.
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(B)Contentions of the learned counsels appearing on either
side:
8.According to the revision petitioners, the money suit filed by
the plaintiff relates to the period between January 2012 to July 2012. The
suit having been filed in the year 2023 is clearly barred by limitation even
on the face of the plaint. The writ petition was filed only on 11.12.2015
which is after expiry of the period of limitation for filing a suit. Therefore,
the plaintiff cannot take advantage of the pendency of the writ petition
before the High Court for seeking exclusion of the period of limitation.
9.The learned counsel appearing for the revision petitioners had
further contended that no cause of action has arisen within India and even
as per plaint averments, salary has not been paid by the third defendant for
the services rendered by the plaintiff at Malaysia. In such circumstances,
the plaint ought to have been rejected. The learned counsel had further
contended that the non-payment of salary to an employee cannot be
categorized as a commercial dispute for being tried by Principal District
Court/Commercial Court.
10.The learned counsel for the petitioners had further contended
that the second and third defendants have been set exparte and they have
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not evinced any interest in the suit proceedings. In such circumstances, the
defendants 1 and 4 should not be harassed to undergo trial in a suit
exfacie/relinquish. The learned counsel had extensively relied upon a
judgment of the Hon’ble Supreme Court reported in (2020) 7 SCC 366
(Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) and others)
wherein the Hon’ble Supreme Court has held that when a suit is barred by
limitation, the Court can invoke Order 7 Rule 11(d) to reject the plaint.
The learned counsel also relied upon the judgement of the Hon’ble
Supreme Court reported in (2022) 12 SCC 641 (Rajendra Bajoria and
others Vs. Hemant Kumar Jalan and others) to contend that when the
relief sought for in the plaint cannot be granted, the only option is open to
the Court is to reject the plaint.
11.The learned counsel for the petitioner laid emphasis upon the
judgment of our High Court reported in 2022 SCC Online Mad 5105
(Shivnarayan Sabu Vs. Sabu Trade Private Limited represented by its
Director) to contend that Section 8 of Commercial Courts Act cannot
override the constitutional powers of High Court under Article 227 of
Constitution of India. He had further relied upon the judgment of the
Hon’ble Supreme Court reported in 2024 SCC Online SC 3844 ( Shri
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Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan
Raje Pratapsinh Maharaj Bhonsle and another) to impress upon the
Court that though the plea of limitation is a mixed question of law and
fact, where it is clear from the plaint averments, that the suit has been
barred by limitation, the Court should not hesitate in granting the relief of
rejection of plaint. Hence, he prayed for allowing the revision petition.
12.Per contra, the learned counsel appearing for the respondents
herein had contended that the first and fourth defendants are the principal
employers and therefore, they are liable to pay the salary of the plaintiff. In
such circumstances, it cannot be contended that there is no cause of action
as against the defendants 1 and 4. He had further contended that the suit
has been filed for recovery of money for being employed at Malaysia. All
the communications have been addressed to the plaintiff only within the
jurisdiction of the Principal District Court, Kanyakumari. Therefore, the
contention that no cause of action has arisen within India or within the
jurisdiction of Principal District Court, Kanyakumari is not legally
sustainable. The learned counsel for the respondent herein had further
contended that the writ petition was filed on 31.07.2014 before this Court
and it was disposed of on 10.11.2022 with liberty to pursue the remedy
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before the proper forum. The suit for recovery of money has been
presented on 17.04.2023. The cause of action being continuous in nature,
the suit cannot be considered to be barred by limitation.
13.The learned counsel for the respondent herein had further
contended that defendants 2 and 3 have already been set exparte and there
is a likelihood of a decree being passed as against those defendants. In
such circumstances, the plaint cannot be rejected in part as against the
defendants 1 and 4 herein.
14.The learned counsel for the respondent had further contended
that even assuming that without admitting the suit is not of commercial in
nature, that would not result in rejection of plaint but only result in return
of plaint to the appropriate Court. Hence, he prayed for sustaining the
order passed by the trial Court.
15.I have considered the submissions made on either side and
perused the material records.
(C) Discussion:
16.A perusal of the plaint averments reveal that the plaintiff has
received a call letter from the third defendant company for being employed
as a Branch Manager for carrying installation work at Malaysia. The
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petitioner has received his first month salary in December 2011 and he was
not paid from January 2012 to July 2012. The third defendant company is
the sister concern of the second defendant company. Both these companies
have not participated in the pre-litigation meditation as contemplated
under Commercial Courts Act. They have already been set exparte in the
suit. Therefore, it is clear that the defendants 2 and 3 have not questioned
the prayer made in the plaint on the ground of limitation or lack of cause
of action.
17.It is also not the case of the defendants 1 and 4 that the
plaintiff has already been paid salary for the relevant period. It is the
specific case of the defendants 1 and 4 that the salary has to be paid only
by the third defendant. As pointed out supra, the third defendant has
already been set exparte in the suit.
18.The question now that arises for consideration is whether the
plaint can be partly rejected as against the defendants 1 and 4 who are
contesting the proceedings.
19.The Hon’ble Supreme Court in a judgment reported in (2018)
11 SCC 780 (Sejal Glass Limited Vs. Navilan Merchants Private
Limited) in Paragraph Nos. 7 and 8 has held as follows:
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C.R.P.(MD).Nos.2847 & 2853 of 2024“7.However, in Kalepu Pala Subrahmanyan v. Tiguti
Venkata Peddiraju and others, a single Judge referred to
Venkata Rangiah Appa Roa V.Secy.of State and then held that
the suit was barred by time in respect of only certain items of
property and not in respect of others. Despite this, it was held
that since the plaint as a whole should have been rejected, the
baby was thrown out with the bathwater, and the entirety of the
plaint and not merely the properties against which the suit
could not proceed (as it was barred by limitation), was
rejected.
8. We are afraid that this is a misreading of the Madras High
Court judgment. It was only on the peculiar facts of that case that
want of Section 80 CPC against one defendant led to the
rejection of the plaint as a whole, as no cause of action would
remain against the other defendants. This cannot elevate itself
into a rule of law, that once a part of a plaint cannot proceed, the
other part also cannot proceed, and the plaint as a whole must be
rejected under Order VII Rule 11. In all such cases, if the plaint
survives against certain defendants and/or properties, Order VII
Rule 11 will have no application at all, and the suit as a whole
must then proceed to trial.”
20.The Hon’ble Supreme Court in a judgment reported in (2019)
7 SCC 158 (Madhav Prasad Aggarwal and another Vs. Axis Bank
Limited and another) in Paragraph Nos.12 and 14 has held as follows:
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C.R.P.(MD).Nos.2847 & 2853 of 2024“12.Indubitably, the plaint can and must be rejected in
exercise of powers under Order 7 Rule 11(d) of CPC on account
of non-compliance of mandatory requirements or being replete
with any institutional deficiency at the time of presentation of
the plaint, ascribable to clauses(a) to (f) of Rule 11 of Order 7 of
CPC. In other words, the plaint as presented must proceed as a
whole or can be rejected as a whole but not in part. In that
sense, the relief claimed by respondent No.1 in the notice of
motion(s) which commended to the High Court, is clearly a
jurisdictional error. The fact that one or some of the reliefs
claimed against respondent No.1 in the concerned suit is barred
by Section 34 of 2002 Act or otherwise, such objection can be
raised by invoking other remedies including under Order 6 Rule
16 of CPC at the appropriate stage. That can be considered by
the Court on its own merits and in accordance with law.
Although, the High Court has examined those matters in the
impugned judgment the same, in our opinion, should stand
effaced and we order accordingly.
14.A fortiori, these appeals must succeed on the sole ground
that the principal relief claimed in the notice of motion filed by
respondent No.1 to reject the plaint only qua the said
respondent and which commended to the High Court, is replete
with jurisdictional error. Such a relief “cannot be entertained”
in exercise of power under Order 7 Rule 11(d) of CPC. That
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C.R.P.(MD).Nos.2847 & 2853 of 2024
power is limited to rejection of the plaint as a whole or not at
all. “
21.In view of the categorical finding of the Hon’ble Supreme
Court in the judgments cited supra, it is clear that the plaint cannot reject
as against the defendants 1 and 4 alone, especially when the defendants 2
and 3 have remained exparte. The plaint has to be rejected as a whole or it
should proceed as a whole for the trial. The defendants 1 and 4 are always
entitled to raise the issue of limitation, lack of cause of action and other
defences raised in Order 7 Rule 11 C.P.C application during trial. The
defendants 1 and 4 are always at liberty in invoke order Order 1 Rule 10(2)
of C.P.C if they are so advised.
22.In view of the above said deliberations, there are no merits in
the revision petitions and both the civil revision petitions stand dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
04.03.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
msa
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C.R.P.(MD).Nos.2847 & 2853 of 2024
To
1. The Principal District Judge, Kanyakumari at Nagercoil
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD).Nos.2847 & 2853 of 2024
R.VIJAYAKUMAR, J
msa
Pre-delivery order made in
C.R.P.(MD).Nos.2847 & 2853 of 2024
and CMP(MD).Nos.16278 of 2024 and 16289 of 2024
04.03.2025
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