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Friday, May 23, 2014

Or.2 rule 2 of C.P.C- when there is possibility of filing one suit for two reliefs and when there is no proper explanation for filing two suits on the same cause of action, Or.2 rule 2 certainly bars the second suit - Two suits on the same cause of action for non-issuing of ICO STAMPS , the plaintiff sustained huge loss on different dates - though the claims in both suit are for different amounts but the cause of action is one and same , Trial court dismissed the later suit but high court partly allowed the suit claim - Apex court held that we are of the opinion that suits should have been merged with the claims against coffee purchased between July 25,1982 and September 8, 1982, (a period arising from the merging of the two periods claimed in the suits wherein eight days overlapped each other) clubbed together in the same suit from which two reliefs, first being the losses due to delayed shipment and second being the costs and losses arising due to the recall of the shipment, could have been claimed. In the present factual matrix both the reliefs are being claimed separately in the two concerned suits. This scenario negates the principle of Order 2, Rule 2 in absence of any explanation as to why the respondent failed to claim the relief by way of a single suit when the cause of action was the same in the both. Therefore, we are of the opinion that the Trial Court in its judgment dated March 17, 2005 correctly held that in light of O.S. No. 3150 of 1985 the present suit is barred under Order 2 Rule 2 of the Code.In view of the aforesaid discussion, we find that the High Court has misappreciated the facts in the light of Order 2 Rule 2 of the Code and thereby the reasoning of the High Court cannot be sustained in the eye of law. The said suit (O.S.No.4763 of 1986) is barred. Considering the facts, as discussed above, we set aside the judgment and order of the High Court and uphold the order of the Trial Court. Accordingly, the present appeal is allowed and the suit of the respondent is dismissed.= Coffee Board .… Appellant versus M/S. Ramesh Exports Pvt. Ltd. ....Respondents = 2014 (May.Part) http://judis.nic.in/supremecourt/filename=41536

Or.2 rule 2 of C.P.C- when there is possibility of filing one suit for two reliefs and when there is no proper explanation for filing two suits on the same cause of action, Or.2 rule 2 certainly bars the second suit - Two suits on the same cause of action for non-issuing of ICO STAMPS , the plaintiff sustained huge loss on different dates - though the claims in both suit are for different amounts but the cause of action is one and same , Trial court dismissed the later suit but high court partly allowed the suit claim - Apex court held that we are of the opinion that suits should  have been merged with the claims against coffee  purchased  between  July  25,1982 and September 8, 1982, (a period arising from the merging of the two periods claimed in the suits wherein eight days  overlapped  each  other) clubbed together in the same suit from which two reliefs, first being the losses due to delayed shipment and second  being  the  costs  and  losses arising due to the recall of the shipment, could have been claimed. In the present  factual  matrix  both  the  reliefs are being  claimed separately  in  the  two  concerned  suits.  This  scenario  negates  the principle of Order 2, Rule 2 in absence of any explanation as to why  the respondent failed to claim the relief by way of a single  suit  when  the cause of action was the same in  the  both.  Therefore,  we  are  of  the opinion that the Trial  Court  in  its  judgment  dated  March  17,  2005 correctly held that in light of O.S. No. 3150 of 1985 the present suit is barred under Order 2 Rule 2 of the Code.In view of the aforesaid discussion, we find that  the  High  Court  has misappreciated the facts in the light of Order 2 Rule 2 of the  Code  and thereby the reasoning of the High Court cannot be sustained in the eye of  law. The said suit (O.S.No.4763  of  1986)  is  barred.  Considering  the  facts, as discussed above, we set aside the judgment  and  order  of  the  High Court and uphold the order of  the  Trial  Court.  Accordingly,  the  present appeal is allowed and the suit of the respondent is dismissed.=

the respondent filed two suits against the  appellant  Board
   in the Court of City Civil Judge, Bangalore, one being O.S.  No.3150  of
   1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
   of 19% per annum and costs of the suit and another suit being  O.S.  No.
   4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
   the rate of 19% per annum and costs of the  suit.
However, the other suit being O.S. No. 4763 of  1986
   was dismissed by the Trial Court by judgment dated March  17,  2005  and
   aggrieved thereby, the respondent filed R.F.A. No.1033  of  2005  before
   the High Court of Karnataka. After considering the submissions  of  both
   the parties, the High Court partly allowed the  regular  first  appeals.=

In both the suits the fact required  to  be  proved  by  the  respondent
   (being the plaintiff therein), to succeed  in  its  claims  was  that  on
   account of the failure of the appellant (being the defendant) to  provide
   the required ICO stamps as assured by it, the respondent  had  to  suffer
   losses. The two separate reliefs claimed by the respondent are  dependent
   on the same fact being the omission of duty by the appellant. The grounds
   of disparity in the suits are the amount of coffee and the dates when the
   same was purchased, however it must be  noted  that  the  period  between
   August 11, 1982 and August 18, 1982 is common to both the suits and there
   are no specific pleadings differentiating  the  same.   Furthermore,  the
   suits were filed within a span of nine days of each other.


20. In the light of the above, we are of the opinion that suits should  have
   been merged with the claims against coffee  purchased  between  July  25,
   1982 and September 8, 1982, (a period arising from the merging of the two
   periods claimed in the suits wherein eight days  overlapped  each  other)
   clubbed together in the same suit from which two reliefs, first being the
   losses due to delayed shipment and second  being  the  costs  and  losses
   arising due to the recall of the shipment, could have been claimed.


21. In the present  factual  matrix  both  the  reliefs  are  being  claimed
   separately  in  the  two  concerned  suits.  This  scenario  negates  the
   principle of Order 2, Rule 2 in absence of any explanation as to why  the
   respondent failed to claim the relief by way of a single  suit  when  the
   cause of action was the same in  the  both.  Therefore,  we  are  of  the
   opinion that the Trial  Court  in  its  judgment  dated  March  17,  2005
   correctly held that in light of O.S. No. 3150 of 1985 the present suit is
   barred under Order 2 Rule 2 of the Code.


22. In view of the aforesaid discussion, we find that  the  High  Court  has
   misappreciated the facts in the light of Order 2 Rule 2 of the  Code  and
   thereby the reasoning of the High Court cannot be sustained in the eye of
   law. The said suit (O.S.No.4763  of  1986)  is  barred.  Considering  the
   facts, as discussed above, we set aside the judgment  and  order  of  the
   High Court and uphold the order of  the  Trial  Court.  Accordingly,  the
   present appeal is allowed and the suit of the respondent is dismissed.

2014 (May.Part) http://judis.nic.in/supremecourt/filename=41536
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO. 5527      OF  2014
                  (Arising out of SLP (C) No.26157 of 2012)


Coffee Board                                                       .…
Appellant

                                   versus

M/S. Ramesh Exports Pvt. Ltd.                               ....Respondents





                               J U D G M E N T


Pinaki Chandra Ghose, J.


1. Leave granted.


2. This appeal is preferred against the judgment and  order  dated  December
   19, 2011 passed by the High Court of Karnataka at  Bangalore  in  Regular
   First Appeal No.1033 of 2005 partly allowing  the  appeal  filed  by  the
   respondent herein and partly decreeing the Original Suit being  O.S.  No.
   4763 of 1986 filed by the respondent being the  original  plaintiff.  The
   said original suit was dismissed by a judgment and decree dated March 17,
   2005.


3. Pre-liberalization, till 1996 all the coffee grown in  India  was  pooled
   with the appellant-Board which is a statutory body under the Coffee  Act,
   1942. The appellant-Board (hereinafter referred to as  “Board”)  marketed
   the pooled coffee and distributed the net realization to the  growers  in
   proportion the quantity pooled by them. The  Board  marketed  the  pooled
   coffee by means of auctions and separate auctions were  held  for  export
   and domestic market. Only registered exporters are allowed to participate
   in the said auctions and the successful bidders amongst them  enter  into
   contracts with the Board for the purchase of the coffee. The Board  is  a
   member of the International Coffee Organization (hereinafter referred  to
   as “ICO”) which is the main  intergovernmental  organization  controlling
   and regulating the global coffee  export  and  import.  Majority  of  the
   coffee growing and consuming countries are members of the ICO. The import
   and export of coffee is regulated by ICO by fixing quotas on  the  member
   countries in accordance with  the  quantum  produced.  As  per  the  then
   International Coffee Agreement  of  1983  the  export  quota  system  was
   supported by an obligatory system of controls. Each export  by  a  Member
   was covered by a Certificate of Origin.  Importing Members did not  admit
   coffee from Members unless the Certificate was validated by coffee export
   stamps issued by the Organization.  When quotas were in effect  importing
   Members were required to limit their imports from non-members and exports
   to non-members were closely monitored.


4. Accordingly, India being a member of ICO through the  Board  was  subject
   to the same agreement and as per the fixed quota for exporting coffee the
   Board received stamps from ICO for each quarter  through  State  Bank  of
   India. Thus, the Board subject to ICO rules and regulations regulated the
   coffee production and marketing  in  India  by  accordingly  distributing
   stamps to the exporters who had successfully purchased  coffee  from  the
   auctions. The respondent M/s. Ramesh Exports Pvt. Ltd. being the original
   plaintiff was registered with the Board as an exporter during the  coffee
   year     October     1,     1981     to      September     30,      1982.




5. In this backdrop, the facts leading to the present appeal are as under:


1. On August 24, 1980, the appellant Board sent the ‘Terms  and  Conditions
   of Sale of Coffee in the Course of Export’, after amendment  of  certain
   clauses, to all the registered exporters of coffee. On October  9,  1980
   the appellant Board issued a Circular regarding introduction  of  Coffee
   Export stamp system for export of coffee to member  importing  countries
   of ICO from November 1, 1980.   The respondent purchased coffee  at  the
   export auction. The respondent shipped 230.4 tonnes of coffee to USA and
   Germany who were members of ICO, on 1st, 2nd  and  3rd  September,  1982
   without valid ICO certificate of origin.  On  September  22,  1982,  the
   respondent wrote to the appellant Board requesting for  ICO  stamps  for
   export of 230.4  tonnes  of  coffee  and  on  September  29,  1982,  the
   respondent  wrote  to  the  appellant  Board  for  issue  of   necessary
   permit/authority to re-import 230.4 tonnes of  coffee  into  India.  The
   appellant Board issued a show cause notice to  the  respondent  alleging
   that the respondent has committed breach of terms of  ICO  Agreement  by
   making false statement. The respondent replied to the show cause notice.
   Thereafter, the respondent filed two suits against the  appellant  Board
   in the Court of City Civil Judge, Bangalore, one being O.S.  No.3150  of
   1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
   of 19% per annum and costs of the suit and another suit being  O.S.  No.
   4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
   the rate of 19% per annum and costs of the  suit.  The  appellant  Board
   resisted the suits and denied the claims made by the respondent.


2. By judgment dated February  14,  2002,  the  Trial  Court  decreed  O.S.
   No.3150 of 1985 with costs and interest at 6% per  annum.  Aggrieved  by
   the judgment and decree dated February 14,  2002  passed  by  the  Trial
   Court, the appellant Board filed R.F.A. No.901 of 2002 before  the  High
   Court of Karnataka. However, the other suit being O.S. No. 4763 of  1986
   was dismissed by the Trial Court by judgment dated March  17,  2005  and
   aggrieved thereby, the respondent filed R.F.A. No.1033  of  2005  before
   the High Court of Karnataka. After considering the submissions  of  both
   the parties, the High Court partly allowed the  regular  first  appeals.
   Aggrieved by the judgment and order dated December 19,  2011  passed  by
   the High Court of Karnataka at Bangalore in Regular First Appeal No.1033
   of 2005, the appellant Board has come up before this Court.


6. The case of the appellant before us is based on two grounds. Firstly,  it
   has been contended by the learned counsel  appearing  for  the  appellant
   that the High Court has incorrectly held that  the  Original  Suit  being
   O.S. No.4763 of 1986 is not barred by the provisions of Rule 2 of Order 2
   of the Code of Civil Procedure, 1908 (hereinafter  referred  to  as  “the
   Code”). In support of the same, it has  been  submitted  by  the  learned
   counsel that the High Court  incorrectly  determined  the  above  without
   considering the specific pleadings in O.S. No.3150 of 1985 filed  by  the
   respondent, as against the pleadings in  the  original  suit  being  O.S.
   No.4763 of 1986. It was further submitted that the High  Court  also  did
   not consider the cogent findings of the judgment  dated  March  17,  2005
   passed by the Trial Court in O.S. No.4763 of 1986.


7. The second ground raised by the learned counsel for the appellant  is  on
  merits wherein it has been contended that when the respondent  by  letter
  dated September 29, 1982 agreed to re-import 230.4 tonnes of coffee  into
  India which was exported without ICO Stamps by them in haste and  against
  the ICO Regulations of which they were aware and which  entailed  in  the
  debarring of India from the membership of ICO,  then  they  are  estopped
  from claiming any damages and  costs  being  freight  and  other  charges
  arising due to the re-import.


8. Having heard the arguments advanced by  the  counsel  appearing  for  the
   parties and considering the documents on record in light of the averments
   of the parties, we will first consider the  procedural  validity  of  the
   original suit and would accordingly proceed with the merits.


9. It is the claim of the appellant being  the  original  defendant  in  the
   original suit being O.S. No.4763 of 1986 that the present suit is  barred
   by Order 2 Rule 2 of the Code. The  said  provision  should  be  read  in
   context of Rule 1 of Order 2. The relevant rules are reproduced below for
   ready reference:

      “1. Frame of suit.—Every suit shall as far as practicable be framed so
      as to afford ground for final decision upon the  subjects  in  dispute
      and to prevent further litigation concerning them.
      2. Suit to include the whole claim.—(1) Every suit shall  include  the
      whole of the claim which the plaintiff is entitled to make in  respect
      of the cause of action; but a plaintiff may relinquish any portion  of
      his claim in order to bring the suit within the  jurisdiction  of  any
      court.
      (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in
      respect of, or intentionally relinquishes, any portion of  his  claim,
      he shall not afterwards sue in respect of the portion  so  omitted  or
      relinquished.
      (3) Omission to sue for one of several reliefs.—A person  entitled  to
      more than one relief in respect of the same cause of  action  may  sue
      for all or any of such reliefs; but if he omits, except with the leave
      of the court, to sue for all such reliefs, he shall not afterwards sue
      for any relief so omitted.”




10. The above rules are  offshoots  of  the  ancient  principle  that  there
   should be an end to litigation traced in the Full Bench decision  of  the
   Court in Lachmi vs. Bhulli[1] and approved by this Court in many  of  its
   decisions. The principle which emerges from the  above  is  that  no  one
   ought to be vexed twice for the same cause. In light of the above, from a
   plain reading of Order 2 Rule 2, it emerges that if different reliefs and
   claims arise out of the same cause of  action  then  the  plaintiff  must
   place all his claims before the Court in one suit and cannot omit one  of
   the reliefs or claims except without the leave of the Court. Order 2 Rule
   2 bars a plaintiff from omitting one part of claim and raising  the  same
   in a subsequent suit. (See: Deva Ram & Anr. vs. Ishwar Chand &  Anr.[2]).
   Furthermore, this Court in  Alka Gupta v. Narender Kumar Gupta[3]  stated
   that:

      “The object of Order 2 Rule 2 of the Code  is  twofold.  First  is  to
      ensure that no defendant is sued and vexed twice in regard to the same
      cause of action. Second is to prevent a plaintiff  from  splitting  of
      claims and remedies based on the same cause of action. The  effect  of
      Order 2 Rule 2 of the Code is to  bar  a  plaintiff  who  had  earlier
      claimed certain remedies in regard to a cause of action, from filing a
      second suit in regard to other reliefs based  on  the  same  cause  of
      action. It does not however bar a second suit based on a different and
      distinct cause of action.”


11. The bar of Order 2 Rule 2  comes  into  operation  where  the  cause  of
   action on which the previous suit was filed, forms the foundation of  the
   subsequent suit; and when the plaintiff could  have  claimed  the  relief
   sought in the subsequent suit, in the earlier suit; and  both  the  suits
   are between the same parties. Furthermore, the bar under Order 2  Rule  2
   must be specifically pleaded by the defendant in the suit and  the  Trial
   Court should specifically frame a specific issue in that  regard  wherein
   the pleading in the earlier suit must be examined and  the  plaintiff  is
   given an opportunity to demonstrate that  the  cause  of  action  in  the
   subsequent suit is different. This was held by this Court in  Alka  Gupta
   v. Narender Kumar Gupta (supra) which referred to decision of this  Court
   in Gurbux Singh vs. Bhooralal[4] wherein it was held that:
       “6. In order that a plea of a bar under Order  2  Rule  2(3)  of  the
      Civil Procedure Code should succeed the defendant who raises the  plea
      must make out: (1) that the second suit was in  respect  of  the  same
      cause of action as that on which the previous suit was based; (2) that
      in respect of that cause of action the plaintiff was entitled to  more
      than one relief; (3) that being thus entitled to more than one  relief
      the plaintiff, without leave obtained from the court  omitted  to  sue
      for the relief for which the second suit had  been  filed.  From  this
      analysis it would be seen that the defendant would have  to  establish
      primarily and to start with, the precise cause of  action  upon  which
      the previous suit was filed, for unless there is identity between  the
      cause of action on which the earlier suit was filed and that on  which
      the claim in the later suit is based there would be no scope  for  the
      application of the bar.”



12. The Courts in order to determine whether a suit is  barred  by  Order  2
   Rule 2 must examine the cause of action pleaded by the plaintiff  in  his
   plaints filed in the relevant suits (See: S. Nazeer Ahmed v.  State  Bank
   of Mysore & Ors.[5]). Considering the technicality of the plea of Order 2
   Rule 2, both the plaints must be read as a whole to identify the cause of
   action, which is necessary to establish a  claim  or  necessary  for  the
   plaintiff to prove if traversed. Therefore, after identifying  the  cause
   of action if it is found that the cause of action  pleaded  in  both  the
   suits is identical and the relief claimed in the  subsequent  suit  could
   have been pleaded in the earlier suit, then the subsequent suit is barred
   by Order 2 Rule 2.

13. In the present case we have found the first suit is claimed to  be  O.S.
   No. 3150 of 1985 and the subsequent suit is claimed to be O.S. No.4763 of
   1986. The first suit was filed by Ramesh Enterprises which is admitted to
   be the Coffee Division of Ramesh Exports Pvt. Ltd. which is the plaintiff
   in the second suit. It has also been admitted by  the  plaintiff  in  the
   second suit that Ramesh Exports Pvt. Ltd. is a wholly owned subsidiary of
   Ramesh Enterprises Pvt. Ltd. Both the entities are operated  out  of  the
   same premises and suits were filed  by  their  Director  who  is  Mr.  T.
   Thangapalam. Therefore, we are of the opinion that de facto  the  parties
   are the same in both the suits. Having perused the written  statement  of
   the defendant being the appellant before us in O.S. No.4763  of  1986  we
   have found that the defendant in paragraph 14(c) of his written statement
   has specifically pleaded that:


      “The suit is barred under Order 2, Rule 2 of the CPC as the  plaintiff
      having filed O.S. No. 3150/1985 in respect of the alleged  failure  of
      the board to supply stamps for the coffees purchased by it between 11-
      8-1982 and 8-9-1982, the claim now made must be deemed  to  have  been
      relinquished.”






The Trial Court also in its  judgment  dated  March  17,  2005  specifically
framed the following issue:


      “(5) Whether Defendant prove that this is barred as per para 14 (c) of
      the Written Statement?”






14. It is  evident  from  the  above  that  the  two  requirements  for  the
   operation of bar under Order 2 Rule 2 are met with and what remains to be
   seen is whether the cause of action in the subsequent suit  is  the  same
   and the relief claimed therein could have been  claimed  in  the  earlier
   suit. For the same, both the plaints  are  discussed  in  the  subsequent
   paragraphs.


15. In the plaint in O.S. No. 3150 of 1985 being the earlier  suit,  it  has
   been claimed by the respondent  being  the  plaintiff  therein  that  the
   appellant being the defendants failed to supply  ICO  Stamps  for  268.08
   tonnes of coffee purchased by him for export between August 11, 1982  and
   September 8, 1982, inspite of its assurances  leading  to  delay  in  the
   shipment of the coffee resulting in losses to the plaintiff. On the basis
   of the same, the respondent claimed for the losses suffered by him  along
   with damages. The respondent further averred that the cause of action for
   the suit arose on various dates when the respondent purchased coffee from
   the appellant in the auctions held by them on the assurance that the  ICO
   Stamps will be supplied by the appellant to them.


16. The cause of action in the above suit is the failure of  ICO  to  supply
   stamps to the respondent inspite of its  assurances.  The  respondent  to
   ensure the success of his claim, was required to prove that on account of
   the omission of the appellant i.e. failure to provide ICO Stamps for  the
   coffee purchased by them, the respondent suffered losses.


17. Inspite of the different wording of the  plaint  in  O.S.  No.  4763  of
   1986, being the subsequent suit, the  respondent  has  primarily  claimed
   that inspite of the assurance given by the appellant  regarding  the  ICO
   stamps by its Circular dated August 18, 1982,  the  appellant  failed  to
   provide the requisite ICO Stamps for 230.4 tonnes coffee purchased by  it
   between July 25, 1982 and August 18, 1982.  That  on  the  basis  of  the
   assurance of the appellant the respondent started making preparations for
   the shipment and after requesting for the ICO Stamps on August  28,  1982
   and waiting for the same, he  was  forced  for  shipment  of  the  coffee
   without the necessary stamps which lead to the  recalling  of  the  ship.
   That the respondent had to bear to and  fro  freight  charges  and  other
   costs being the damages  to  importers  for  delay  in  shipment  as  the
   shipment was called back wrongfully; on account of the  omission  of  the
   appellant for which the respondent is not accountable; and the  appellant
   is liable  for  the  cost  arising  from  the  recall  of  the  shipment.
   Furthermore, as per the plaintiff, the cause of  action  arose  when  the
   circular assuring the availability of stamps was issued, when the  coffee
   was shipped and subsequently called back.


18. Though the plaint in the subsequent suit is more specific,  we  however,
   find that the respondent so as to recover the cost of the freight charges
   and other costs suffered by it, must prove that the appellant was under a
   duty to provide ICO stamps; and its failure to provide the stamps  timely
   lead to the coffee being shipped without the stamps and  ultimately  lead
   to the losses being suffered by the respondent.


19. In both the suits the fact required  to  be  proved  by  the  respondent
   (being the plaintiff therein), to succeed  in  its  claims  was  that  on
   account of the failure of the appellant (being the defendant) to  provide
   the required ICO stamps as assured by it, the respondent  had  to  suffer
   losses. The two separate reliefs claimed by the respondent are  dependent
   on the same fact being the omission of duty by the appellant. The grounds
   of disparity in the suits are the amount of coffee and the dates when the
   same was purchased, however it must be  noted  that  the  period  between
   August 11, 1982 and August 18, 1982 is common to both the suits and there
   are no specific pleadings differentiating  the  same.   Furthermore,  the
   suits were filed within a span of nine days of each other.


20. In the light of the above, we are of the opinion that suits should  have
   been merged with the claims against coffee  purchased  between  July  25,
   1982 and September 8, 1982, (a period arising from the merging of the two
   periods claimed in the suits wherein eight days  overlapped  each  other)
   clubbed together in the same suit from which two reliefs, first being the
   losses due to delayed shipment and second  being  the  costs  and  losses
   arising due to the recall of the shipment, could have been claimed.


21. In the present  factual  matrix  both  the  reliefs  are  being  claimed
   separately  in  the  two  concerned  suits.  This  scenario  negates  the
   principle of Order 2, Rule 2 in absence of any explanation as to why  the
   respondent failed to claim the relief by way of a single  suit  when  the
   cause of action was the same in  the  both.  Therefore,  we  are  of  the
   opinion that the Trial  Court  in  its  judgment  dated  March  17,  2005
   correctly held that in light of O.S. No. 3150 of 1985 the present suit is
   barred under Order 2 Rule 2 of the Code.


22. In view of the aforesaid discussion, we find that  the  High  Court  has
   misappreciated the facts in the light of Order 2 Rule 2 of the  Code  and
   thereby the reasoning of the High Court cannot be sustained in the eye of
   law. The said suit (O.S.No.4763  of  1986)  is  barred.  Considering  the
   facts, as discussed above, we set aside the judgment  and  order  of  the
   High Court and uphold the order of  the  Trial  Court.  Accordingly,  the
   present appeal is allowed and the suit of the respondent is dismissed.




                                       ………………..…....……....…………..J.
                                                 (Chandramauli Kumar Prasad)




                                       ………………..…....……....…………..J.
                                                          (Pinaki Chandra
Ghose)
New Delhi;
May 9, 2014.






-----------------------
[1]    ILR (1927) 8 Lah 384
[2]    (1995) 6 SCC 733
[3]    (2010) 10 SCC 141
[4]    AIR 1964 SC 1810
[5]    (2007) 11 SCC 75

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