Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Further, the appellant filed another Commercial Suit No.160 of 2017 before the Madras High Court claiming refund of security deposit, additional deposit, penalty paid to the University Board, cost of improvements and damages amounting to Rs.5,77,03,621/- against the respondent.
11. From the above, it is noticeable that both the sides preferred two suits each, however, one of the suits i.e. Suit No.101 of 2015 has already been withdrawn by the respondent and, as such, three suits remain pending which are all commercial suits pending before the Madras High Court inter se parties.
12. It would be worthwhile to mention here before proceeding any further that the Trial Court as also the High Court had found that both the [2024] 7 S.C.R. Uniworld Logistics Pvt. Ltd. v. Indev Logistics Pvt. Ltd. suits were filed based upon different causes of action. The High Court had further found that the respondent had taken leave for instituting the second suit against the appellant under Order II Rule 2(3) CPC. It also found that the respondent had specifically stated in the plaint of the first suit that there were claims for damages and warehouse charges to be recovered for which, it reserved its claim for recovery of the same. At no stage had the respondent given up its claim, nor was there any omission to claim the relief of recovery. It was neither a case of relinquishment of claim or omission. The High Court has dealt with in great detail the object of Order II Rule 2(3) CPC. It has also discussed the law on the point. It had thereafter arrived at the conclusion that neither there was infirmity in the order of the Trial Court granting leave to file the second suit for recovery of arrears, nor was there any merit in the application under Order VII Rule 11 CPC filed by the appellant.
13. We have heard Sri Shyam Divan, learned Senior Counsel for the appellant and Sri Aditya Kumar Choudhary, learned counsel appearing for the respondent and have also perused the material on record.
14. The submissions advanced on behalf of the appellant by the learned Senior Counsel are summarized as under: (i) The commercial suit bearing C.S. No.323 of 2016 was clearly barred by Order II Rule 2(2) CPC. (ii) The Courts below failed to distinguish between relinquishment of claims and omissions of relief. The High Court wrongly relied upon the Full Bench Judgment of the Bombay High Court in the case of Shankar Lal Laxminarayan Rathi and Ors. Vs. Gangabisen Manik Lal Silchi and another1 as the said judgment had no applicability in the facts of the case.
15. On the other hand, Shri Choudhary, learned counsel for the respondent submitted that the judgment and order of the High Court does not suffer from any infirmity warranting any interference by this Court. Further, strong reliance was placed upon a judgment of this Court in the case of Bharat Petrolium Corporation Ltd. And another Vs. ATM Constructions Pvt. Ltd.,2 wherein under similar facts, this AIR 1972 Bom.326 (FB) [2023] 16 SCR 859 : 2023 SCC Online SC 1614 1076 Court held that a second suit for arrears of rent and damages would not be barred under Order II Rule 2 CPC.
16. Para 18 of the above said judgment is reproduced hereunder: “18. In view of the enunciation of law, as referred to above, suit for possession and suit for claiming damages for use and occupation of the property are two different causes of action. There being different consideration for adjudication in our opinion, second suit filed by the respondent claiming damages for use and occupation of the premises was maintainable. The application filed by the appellants for rejection of the plaint was rightly dismissed by the Courts below. However, the appellants are well within their right to raise the issue, if any part of the claim in the suit is time-barred but the entire claim cannot be said to be so.”
17. The case in hand stands on a better footing, inasmuch as, the plaintiff-respondent had specifically reserved its rights in the first suit regarding claim against warehousing charges, damages for illegal use and occupation etc. and further had applied for leave before the Trial Court for filing a separate suit, which leave had been granted. There was neither any relinquishment at any stage, nor omission to claim relief. Both the causes of action being separate, the second suit was clearly maintainable. The appellant, who is facing recovery of more than Rs.8 crores, is unnecessarily trying to delay the progress in the suit, which is pending since 2016.
18. In view of the above discussion, we are of the firm view that the impugned order does not suffer from any infirmity. The judgment in the case of Bharat Petroleum Corporation Ltd. (supra) relied upon by the respondent squarely applies in the facts of the present case and we do not find any reason to take a different view.
19. The appeal lacks merit and is, accordingly, dismissed.
20. Pending applications, if any, are disposed of. Result of the case: Appeal dismissed. †Headnotes prepared by: Aishani Narain (Verified by: Shadan Farasat, Adv.)