ELDHO KURUVILLA Vs. K.G. ABRAHAM

JUDGEMENT

(1.) There is an agreement executed between the parties hereto on March 22, 2007 for purchase of 50 and odd acres of land for the consideration stated therein. As per the said agreement, certain amount was paid as advance to the proposed vendors, petitioners in these petitions. While so, the first respondent/plaintiff, the proposed purchaser rescinded the contract on the ground that property agreed to be sold has no marketable title and some of the original owners of the property from whom petitioners had agreed to acquire the land and transfer the same to the first respondent are non existent. Consequent to the rescission of the contract, first respondent filed O.S. No. 218 of 2008 in the Court of learned Additional Sub Judge, Ernakulam for realisation of advance sale consideration given to the petitioners and other defendants in the suit. In the plaint, first respondent alleged that he was constrained to rescind the contract on account of lack of marketable title for the property agreed to be conveyed and since the original owners of the property were non existent. Petitioners defended the suit contenting that that breach was on the part of the first respondent and that on account of the breach, they suffered loss to the tune of Rs. 14 Crores and odd. They also made a counter claim for realisation of Rs. 9 crores by way of damages to which the claim was confined. In answer to the counter claim, first respondent filed replication wherein he denied that he committed breach. He contended that he was made to believe that the property proposed to be sold to him is suitable for construction of a hotel but, later as against the information that was given to him he learned under the Right to Information Act (for short, "the RTI Act") that the properties proposed to be sold are cardamom estate or agricultural land. It was also pointed out by him in paragraph 13 of the replication that since he is a Non Resident Indian (for short, "NRI") he could not acquire plantation or agricultural land in view of the provisions of the FEMA and the Regulations framed under it. It was further contended that the agreement for sale was entered into between the first respondent, petitioners and the third defendant on the basis of assurance given by the petitioners and third defendant that the property could be utilised for construction of a hotel. Based on the pleading learned Sub Judge framed issues whether the said Court has territorial jurisdiction to try the suit, whether petitioners and third defendant committed breach of contract (as alleged by the first respondent) first respondent is entitled to recover the amount claimed in the plaint and whether petitioners and the third defendant are entitled to the counter claim. After framing of issues, petitioner in W.P. (C). No. 24273 of 2010 (first defendant) filed I.A. No. 7824 of 2009 for leave to serve interrogatories on the first respondent (interrogatories required to be answered as seen in pages 91 onwards of the paper book in W.P. (C). No. 24273 of 2010). Essentially the interrogatories required to be answered by the first respondent related to his claim of status as a NRI and whether he has acquired landed property in India. The application was opposed by the first respondent contending that in the nature of the claim made in the plaint, interrogatories are not relevant. Learned Sub Judge considered the question and passed Ext. P7, order holding that the limited questions to be answered in the suit are whether first respondent is entitled to refund of the advance sale consideration given to the petitioners and third defendant and whether petitioners and third defendant are entitled to get the amount shown in the counter claim in view of the loss allegedly suffered by them on account of alleged breach of contract by the first respondent. Learned Sub Judge was of the view that status of the first respondent as NRI has nothing to do with the disputes in question and in that view of the matter, found that it is not necessary for the first respondent to answer interrogatories. The result was a dismissal of I.A. No. 7824 of 2007 which the first defendant has challenged in W.P. (C). No. 24273 of 2010. In the meantime, second defendant in the suit filed I.A. No. 6361 of 2010 to direct first respondent to produce certain documents to prove the case pleaded by her. That application was dismissed which is challenged by the second defendant in O.P. (C). No. 1870 of 2011.

(2.) Learned counsel for petitioners in these petitions contended that learned Sub Judge was wrong in his view that the status of first respondent as a NRI is not relevant for decision of the disputed questions and hence it is not necessary to serve interrogatories on the first respondent. It is contended by learned counsel that first respondent had rescinded the contract for the reason that the property agreed to be sold to him, as per the information given to him was suitable for construction of a hotel but, he learned from the information collected under the RTI Act that it is a cardamom estate. It is contended that according to the first respondent he could not have entered into an agreement for purchase of a plantation or agricultural land in view of the provisions of the FEMA and the Regulations framed under it. The status of first respondent as a NRI is not admitted by the petitioners. Hence to explode the contention raised by the first respondent that he was mislead to purchase property as if it is suitable for construction of a hotel and not as a cardamom estate and hence he could not have entered into agreement for purchase of the property, it is relevant and necessary to prove that first respondent is not a NRI and at any rate, the dates from which he claimed status of a NRI. It is contended that it is also relevant to ascertain whether first respondent was holding other agricultural lands in India as a NRI, so that he could not have acquired such land in India. Learned counsel has placed reliance on the decision in Sri. Padmanabha Dasa Marthanda Varma v. Moolan Thirunal Rama Varma,1998 1 KerLT 113, in particular paragraph 4 and P. Balan v. Central Bank of India, 2000 AIR(Ker) 24 paragraph 8.

(3.) In response, it is contended by learned counsel for the first respondent that on the issues framed what is required to be decided by the learned Sub Judge is only as to who committed breach of the contract, it has no relevance to the status of either of the parties, whether first respondent is a NRI and if so, from when onwards. It is pointed out that nowhere in the written statement filed by the petitioners and third defendant, it is contended that first respondent is not a NRI. According to the learned counsel, it is not as if in view of second proviso to rule 1 of Order XI of the Code of Civil Procedure (for short, "the Code") petitioners could serve interrogatories on the first respondent on any matter they could have subjected first respondent to cross examination. Learned counsel has placed reliance on the decision in Raj Narain v. Smt. Indira Nehru Gandhi and Ors., 1972 AIR(SC) 1302 to canvas the said point. Learned Sub Judge has referred to all the relevant aspects of the matter in concluding that there is no occasion to serve interrogatories on the first respondent, it is argued.