VASANTHA VISWANATHAN Vs. V K ELAYALWAR

JUDGEMENT

(1.) In these appeals by special leave judgment rendered by a Division Bench of Madras High Court has been impugned whereby the judgment and decree of the trial Court dismissing plaintiff's suit have been set aside and suit has been decreed. While Civil Appeal No. 599 of 1997 has been preferred against the main judgment whereby the High Court has decreed the suit, Civil Appeal No. 600 of 1997 against that portion of the impugned judgment whereby the prayer, made on behalf of the defendants for taking, joint application filed by the plaintiff and defendant No. 1 before Regional Transport Authority for permission to transfer 5 buses along with permits in favour of defendant No. 1, by way of additional evidence at the appellate stage, has been refused.

(2.) The plaintiff-respondent filed a suit bearing Title Suit No. 261 of 1982 in the Court of Subordinate Judge at Salem for appointment of a Commissioner for fixing price of 5 buses and their routes fully described in Schedule 'B' to the plaint and thereafter decree the suit for the amount so ascertained against defendants Nos. 1 and 4 to 7. Further prayer was made for rendition of accounts in respect of profits derived by the aforesaid defendants from plying of the aforesaid vehicles from 17-8-1979 till the date of final decree and thereafter decree the suit for the said amount together with interest at the rate of 12% per annum.

(3.) Case of the plaintiff is that he was running the business of stage carriage transport and owned 18 or 19 buses in the year 1970 and as there were talks of legislation imposing a ceiling on the number of stage carriage permits owned by an individual in the year 1970, the plaintiff entered into an agreement with the 1st defendant on 11-12-1970 under Exhibit A-1 for sale of 5 buses covered by the route permits. Pursuant to the said agreement, a joint application was made by the plaintiff and the 1st defendant in April, 1971 before the concerned Regional Transport Authority for transfer of permits of 5 buses which was rejected on 5-7-1971 on the ground that Tamil Nadu Ordinance No. VI of 1971 was issued by the State Government fixing a ceiling limit of 10 permits to an individual operator and directing surrender of excess permits which came into force w. e. f. 18-6-1971. The 1st defendant thereafter preferred an appeal before the State Transport Appellate Tribunal against the aforesaid order of rejection whereas the plaintiff filed a writ petition in the Madras High Court challenging validity of the aforesaid Ordinance and during the pendency of the writ petition the proceeding before the Tribunal was stayed. During the pendency of the writ application and the aforesaid appeal the first defendant sent a letter dated 31-1-1972 (Ex.A-2) to the plaintiff in which, after referring to the pendency of the aforesaid cases, it was stated that the first defendant would pay price of the buses covered by the permits as may be ascertained after the passing of an order of transfer of permits and take delivery of the vehicles after such payments. In the said letter it was also stated that no amount of sale price had been paid by the 1st defendant to the plaintiff till then. Subsequently the writ application was allowed and the provisions fixing a ceiling of 10 permits in the Ordinance which was by then replaced by an Act were struck down as constitutionally invalid. After the said judgment, the Tribunal allowed the appeal filed by the 1st defendant and directed the concerned Regional Transport Authority to transfer the permits in favour of the 1st defendant whereupon the same were transferred on 21-4-1979 and till then the buses were in possession of the plaintiff.