High Court of KeralaSingle JudgeOriginal Petition disposed of; no costs. IA 162...

Maratt Rubber Limited v. J.K. Marattukalam and Others

Case / Petition Number:OP(C).No. 921 of 2010 (O)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh
Judgment Date
2012-05-25
Court Decision / Holding
The Original Petition is disposed of as above. No costs. IA No.1622/2010 allowed on condition of payment of Rs. 25,000 to the respondents' counsel within one month. IA No.1689/2010 dismissed. Exts. P5 and P6 will remain intact if costs are not paid. The liability, if any, to be decided at trial.
Final Disposition
Original Petition disposed of; no costs. IA 1622/2010 allowed on condition of payment of costs; IA 1689/2010 dismissed; liability and quantum to be determined at trial.

Parties to the Case

Appellants / Petitioners

  • MARATT RUBBER LIMITED, REGISTERED OFFICE AT 6TH MILE, BANNERGHATTA ROAD BANGALORE, REP.BY ITS, MANAGING DIRECTOR M.K.MARATTUKALAM, S/O.LATE KUNCHERIA

Respondents

  • J.K.MARATTUKALAM, S/O.LATE KUNCHERIA TANA, MAMPAD, P.O.MALAPPURAM DISTRICT-676505
  • K.K.MARATTUKALAM, S/O.LATE KUNCHERIA, TANA, MAMPAD P.O.MALAPPURAM DISTRICT-676505
  • T.K.MARATTUKALAM, S/O.LATE KUNCHERIA DESIGNS INDIA, DEVARAJ URS ROAD, MYSORE CITY KARNATAKA STATE-570001
  • U.MOOSA, S/O.UMMASTHOOR RAYIN MALABAR HOUSE, CHUNGATHARA AMSOM DESOM, ERNAD TALUK MALAPPURAM DIST-676505
  • E.MOHAMMED, S/O.MAMMED,MANNARGHAT HOUSE, VALLUVAMBRAM DESOM, POOKKATTUR AMSOM, ERNAD TALUK MALAPPURAM DISTRICT-676505

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.M.KRISHNAKUMAR

Counsels for Respondents

  • • SRI.DINESH MATHEW J.MURICKEN
  • • SRI.P.V.BALAKRISHNAN

Case Synopsis & Summary

This is an original petition under OP(C) 921 of 2010 in the Kerala High Court, arising from a suit for injunction and, in the alternative, possession (OS 304/1995) filed by Maratt Rubber Limited against five respondents. Defendant Nos. 4 and 5 were appointed as party receivers under a prior judgment (CMA No. 234/1996) and remained in office until their removal in 2001. The plaintiff originally did not plead mesne profits in the plaint. On the eve of trial, two interlocutory applications were moved: IA 1622/2010 for amendment to claim future mesne profits and IA 1689/2010 for directions to deposit profits with the court. The Subordinate Court dismissed both, Exts. P5–P6. The High Court held that a receiver holds the property for the benefit of the eventual winner and that profits earned by receivers should be distributed pro rata to each party’s share. It allowed IA 1622/2010 subject to the petitioner paying Rs. 25,000 toward costs to the respondents’ counsel within one month; Exts. P5 and P6 would remain intact if costs are not paid. IA 1689/2010 was dismissed; the quantum and tenure of the receivership would be decided at trial. The court acknowledged some delay (laches) but condoned it by imposing costs. The petition is disposed of with no costs awarded. The decision clarifies the course for future mesne profits and the method of adjudicating liability and profits at trial.

Legal Doctrines & Maxims

  • A receiver holds the property for the benefit of the person who ultimately wins the suit
  • Profits collected by receivers must be shared among the parties in proportion to their share
  • Laches can be condoned by directing costs to be paid

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend for amendment of the plaint (I.A. 1622/2010) to include a claim for future mesne profits, arguing that a receiver's profits should be accounted for and distributed to the losing parties proportionally if the suit succeeds. They maintain that the relief for mesne profits should be considered at trial, subject to appropriate assessment of profits and liability; the court should permit the amendment and allow the future profits claim, along with directions to deposit the receivers' profits where appropriate. They contend any delay is a matter of adjustment, and the court should exercise discretion, noting the prior appointment of party receivers and their removal.

Contentions of Respondents

The respondents' counsel relied on precedents (Pirgonda Hongonda Patil v. Kalgonda Patil and Others; T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board) to argue that the claim for future mesne profits is barred by limitation or should be resolved by the trial court. They submitted that the claim for profits from receivers is a matter for evidence and not to be decided at this stage; the trial court should decide issues on limitation and liability with appropriate findings; they urged that delay amounts to laches and, if necessary, costs should be awarded.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and othersAIR 1957 SC 363Mentioned OnlyCited as authority by counsel; the court does not indicate that the doctrine is being adopted or distinguished in this judgment.
T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Others2004 (3) SCC 392Mentioned OnlyCited in argument by the respondents; no explicit treatment or application of the decision is stated in the ruling.
Raju Thilak D. John v. S. Rayappan and Others(2001) 2 SCC 472Mentioned OnlyCited as a reference for issues related to limitation; no direct doctrinal adoption in the decision.
Abdulla v. Pathumma2003(2) KLT 289Mentioned OnlyCited for comparative reasoning on delay and limitation; not expressly overruled, distinguished, or adopted.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934** ## **OP(C).No. 921 of 2010 (O)** ## **------------------------OS.304/1995 of SUB COURT, MANJERI** ## **PETITIONER(S)/PETITIONER:** **------------------------** **MARATT RUBBER LIMITED, REGISTERED OFFICE AT 6TH MILE, BANNERGHATTA ROAD BANGALORE, REP.BY ITS, MANAGING DIRECTOR M.K.MARATTUKALAM, S/O.LATE KUNCHERIA** **BY ADV. SRI.M.KRISHNAKUMAR** ## **RESPONDENT(S):** - **--------------** **1. J.K.MARATTUKALAM, S/O.LATE KUNCHERIA TANA, MAMPAD, P.O.MALAPPURAM DISTRICT-676505** **2. K.K.MARATTUKALAM, S/O.LATE KUNCHERIA, TANA, MAMPAD P.O.MALAPPURAM DISTRICT-676505** **3. T.K.MARATTUKALAM, S/O.LATE KUNCHERIA DESIGNS INDIA, DEVARAJ URS ROAD, MYSORE CITY KARNATAKA STATE-570001** **4. U.MOOSA, S/O.UMMASTHOOR RAYIN MALABAR HOUSE, CHUNGATHARA AMSOM DESOM, ERNAD TALUK MALAPPURAM DIST-676505** **5. E.MOHAMMED, S/O.MAMMED,MANNARGHAT HOUSE, VALLUVAMBRAM DESOM, POOKKATTUR AMSOM, ERNAD TALUK MALAPPURAM DISTRICT-676505** **BY ADV. SRI.DINESH MATHEW J.MURICKEN BY ADV. SRI.P.V.BALAKRISHNAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 921 of 2010 (O)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** - **P1 COPY OF THE JUDGMENT DATED 29-9-2009 IN FAO 95/2003** - **P2 COPY OF THE COMMISSIONERS REPORT DATED 18-8-2010 IN O.S. 304/1995** - **P3 COPY OF THE AFFIDAVIT ACCOMPANYING THE APPLICATION IN I.A NO.1622/2010** - **P4 COPY OF THE AFFIDAVIT ACCOMPANYING THE APPLICATION IN I.A. NO. 1689/2010** - **P5 COPY OF THE ORDER DATED 09-11-2010 IN I.A. NO. 1622/2010 P6 COPY OF THE ORDER DATED 09-11-2010 IN I.A. NO. 1689/2010** ## **RESPONDENTS EXHIBITS** ## **NIL** ## **TRUE COPY** **P.A. TO JUDGE** ## **SMM** ## **V.CHITAMBARESH,J.** ====== = == = = = **O.P(C) No.921 of 2010** = = = = = = = == = = = Dated this the 25[th] day of May, 2012 **==> picture [136 x 17] intentionally omitted <==** The suit is one for injunction and in the alternative for recovery of possession. Defendant Nos.4 and 5 in the suit were appointed as party receivers pursuant to the judgment in CMA. No.234/1996 on the file of this Court. The said appeal arose out of an application for temporary injunction. The party receivers were appointed on 13-9-1996 and were removed from office on 10-4-2001. There was an omission on the part of the plaintiff to incorporate a prayer for mesne profits in the plaint originally. 2. Two Interlocutory Applications were filed by the plaintiff on the eve of trial of the suit. I.A No.1622/2010 was filed for amendment of the plaint seeking to incorporate the claim for future mesne profits. I.A No.1689/2010 was filed for a direction to defendants 4 and 2 **O.P(C) No.921 of 2010** 5 to deposit in Court the profits collected as receivers. The Court below has by Exts.P5 and P6 orders dismissed I.A Nos.1622/2010 and 1689/2010 in O.S.No.304/1995 on the file of the Subordinate Judge of Manjeri 3. It is trite law that a receiver holds the property for the benefit of the person who ultimately wins the cause. Therefore the profits collected by the party receivers have to be given to the parties in proportion to their share. This is precisely what the plaintiff sought by way of amendment for future mesne profits. It is the share of profits which the plaintiff is entitled to get in case the suit is decreed. The Court below was in error in dismissing I.A No.1622/2010 for amendment. 4. The Counsel for the Defendant Nos.4 and 5 relies on the decisions in **Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil and others in (A.I.R 1957 Supreme Court 363) and T.N.Alloy Foundry Co.Ltd. vs. T.N. Electricity Board and Others (2004 (3) Supreme Court** 3 **O.P(C) No.921 of 2010** **Cases 392)** . He contend that the plea for future mesne profits has become barred by limitation. That is a matter to be decided by the court below at the time of considering the relief claimed. It would suffice if the Court below frames an issue as regards the bar of limitation . The Court below will render a finding on that issue along with the other issues in the suit. **(See: Raju Thilak D.John Vs. S.Rayappan and Others (2001) 2 SCC 472 and Abdulla Vs.Pathumma 2003(2)KLT 289)** 5. It is true that there is some latches on the part of the plaintiff in not being vigilant to take appropriate steps. Such latches can be condoned by directing the plaintiff to pay costs to Defendant Nos.4 and 5. I.A No.1622/2010 is therefore allowed on condition that the petitioner/plaintiff pays to the Counsel for Defendant Nos. 4 and 5 in this Original Petition a sum of Rs. 25,000/- (Rupees twenty five thousand only) within one month from today. Ext.P5 order dismissing I.A No.1622/2010 will remain intact in case the 4 ## **O.P(C) No.921 of 2010** costd as directed above is not paid. 6. IA No.1689/2010 has been filed for a direction to Defendant Nos. 4 and 5 to deposit the profits collected. This is a matter for evidence to be decided in the suit. The quantum of profits collected and the tenure of receivership is a matter for evidence. The Court below was therefore justified in dismissing I.A No.1689/2010 filed for a direction of that nature. I however add that the liability, if any, to be fastened on Defendant Nos. 4 and 5 would be considered at the time of trial of the suit. The Original Petition is disposed of as above. No costs. V.CHITAMBARESH. JUDGE smm # **O.P(C) No.921 of 2010** 5 # **O.P(C) No.921 of 2010** 6