TMI Blog1994 (10) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... Rathnam, one of the directors of the plaintiff who is not authorised by the board of directors for the plaintiff to institute the suit is not maintainable. The defendant is the tenant occupying the entire building for the last 45 years. The rent has been increased from time to time, and the present rent is ₹ 3,000 per month. The premises bearing No. 29, Broadway were owned by the late Kowtha Surya Narayana Rao. He had leased out to the defendant and he has gifted the same to the plaintiff by his will dated August 11, 1960. The defendant has put up a superstructure on the vacant land belonging to the plaintiff at its own cost and is, therefore, entitled to purchase it from the plaintiff under section 9 of the City Tenants Protection Act. The defendant has filed an application under section 9 of the City Tenants Protection Act. The plaintiff is, therefore, not entitled to the reliefs sought for. The defendant is, therefore, not bound to hand over vacant possession. The suit is, therefore, liable to be dismissed. 4. C.M.A. No. 922 of 1986 : This appeal arises out of the order passed by the learned Third Assistant Judge, City Civil Court, Madras, in I.A. No. 3942 of 1982. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil miscellaneous appeal is : Whether the appellant is entitled to an order under section 9 of the Tamil Nadu City Tenants Protection Act ? 12. Point in the appeal : The plaintiff which is a trust registered under section 25 of the Companies Act, has filed the suit for recovery of possession of the suit property contending that the suit property is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and contending that the plaintiff had issued a notice under section 106 of the Transfer of Property Act terminating the tenancy of the defendant. The defendant in their written statement, has contended that the suit has been filed by one of the directors of the plaintiff trust without any authorisation from the board of directors and as such it is not maintainable under section 21 of the Civil Procedure Code. The defendant has also filed an application in I.A. No. 3942 of 1982, under section 9 of the City Tenants Protection Act praying for an order to direct the plaintiff to sell the property in its favour for a price to be fixed by the court. Before the trial court, three witnesses have been examined on behalf of the defendant in the interlocu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the suit property was let out to the defendant, that the plaintiff issued proper notice of termination in exhibit R-4 on May 4, 1981, terminating the tenancy ending with December 31, 1981, and this fact is not disputed and hence proper valid notice of termination has been issued by the plaintiff to the defendant and that no argument was adduced to show how the suit is not maintainable, and therefore, the said issue is answered in the affirmative. The trial court has proceeded on issue No. 1 as if the defendant has raised the question of maintainability of the suit contending that there is no valid notice of termination and has given a finding that there is a proper and valid notice of termination. Nothing has been stated in the judgment with regard to the filing of the suit by Mrs. Lalitha Rathnam as a director of the plaintiff. Learned counsel appearing for the appellant would, therefore, argue that the plea raised by the defendant is a legal plea and it can be canvassed even in the appellate stage. Learned counsel appearing for the respondent would argue that even though it is a legal plea, it is based on evidence and, therefore, it cannot be raised at the appellate stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved, there is no indication in the judgment of the learned Third Assistant Judge, City Civil Court, Madras, that the defendant who has raised the plea of maintainability of the suit, has given it up or not pressed it. The trial court has proceeded on a wrong assumption that the question of maintainability was raised on the ground of want of a proper notice of termination and has simply observed that no arguments were adduced on the maintainability of the suit indicating that the defendant has not argued as to how the suit is not maintainable when there is valid and proper notice of termination. Therefore, I am of opinion that the contention of the respondent that the question of maintainability of the suit having been given up in the trial court, it cannot be raised at the appellate stage is not a tenable one since it cannot be stated that this question has been actively given up by the defendant in the trial court. Even assuming that the defendant has not pressed it at the trial stage, it would not amount to giving it up. In this connection, I wish to reply upon the decision in Dippala Suri Dora v. V. V. Giri, AIR 1958 AP 724, wherein it has been held that it is no doubt true tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the trust and the appellant who is a tenant in arrears cannot question the same. Learned counsel relies upon the decision in Freeman and Lockyer (A firm) v. Buckhurst Park Properties (Mangal) Ltd. [1964] 34 Comp Cas 405; [1964] 2 WLR 618 (CA), in support of his above contention that the director in the company where there is no managing director, appoints an architect through the resolution of the board of directors and it has been approved, the conduct of the director cannot be questioned. But, this decision cannot be pressed into service by learned counsel appearing for the respondent in support of his above contention on the ground that the conduct of the managing director appointing an architect is within the ordinary ambit of authority of the managing director and there is no necessity to enquire whether the appointment was authorised. Appointment of the auditor is an administrative function. It has to be distinguished from filing a suit for which special provision has been provided in Order 29, rule 1 of the Civil Procedure Code. Therefore, I am of opinion that where there is no resolution authorising Mrs. Lalitha Rathnam to file the suit, the defendant's claim that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the matter. It is not an internal management of the company in which courts cannot interfere as contended by learned counsel appearing for the respondent. The filing of the suit is an initial infirmity with regard to the maintainability of the suit which is incurable. It cannot be equated with an administrative act like the appointment of an architect as in the case of Freeman and Lockyer (A firm) v. Buckhurst Park Properties (Mangal) Ltd. [1964] 34 Comp Cas 405 (CA); [1964] 2 WLR 618 as relied on by learned counsel appearing for the respondent. The decision relied on by learned counsel appearing for the appellant in K. N. Sankaranarayanan v. Shree Consultations and Services Pvt. Ltd. [1994] 80 Comp Cas 558 (Mad) also lays down the same principle that there must be specific conferment of power on the director for instituting a petition on behalf of the company and instituting a petition on behalf of the company without proof of authorisation is an invalidity which cannot be cured and the petition is not maintainable on that ground. Thus, it is seen that the contention of learned counsel appearing for the appellant, that as per the decision in Nibro Ltd. v. National Insurance C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff. He also states that the seven sheds do not find place in exhibit P-1 and exhibit P-2 reports. He has firmly stated that defendant did not take the land alone separately for lease. The evidence of PW-2 does not throw light on any contention of the petitioner. PW-3 would say that they have not obtained sanction for putting up a shed in the vacant site; he cannot say how many sheds there are, he has not obtained permission when sheds were put up. During cross-examination he would say that there are records to show purchase of the sheds in 1938 from the late Kowtha Surya Narayana Rao. K. S. Rao was originally the owner of the defendant-business when it was a proprietary concern and he has incorporated it as a private limited company subsequently. Therefore, there is no necessity for a separate sale deed or any other conveyance in favour of the defendant when the property has been given by way of will in favour of the plaintiff as per the decision in Weavers Mills Ltd. v. Balkis Ammal . The evidence of PWs. Nos. 1 and 3 which I have extracted above would show that actually the demised property is a large extent of land over which there was a small superstructure and the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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