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2008 DIGILAW 169 (MAD)

R. P. Chinnamani Nadar v. L. Thomas Nadar

2008-01-21

R.SUDHAKAR, SUDHANSU JYOTI MUKHOPADHAYA

body2008
Judgment :- S.J. Mukhopadhaya, J. In these two appeals, the plaintiff/appellant has challenged common order dated 5th Nov., 2004, by which applications for temporary injunction and for furnishing security were rejected by learned Judge. .2. Plaintiff/appellant has preferred the suit in question, C.S. No.479/03 directing the defendant/respondent to pay plaintiff a sum of Rs.30,81,500/= together with further interest on Rs.20 lakhs at the rate of 18% per annum from the date of plaint till the date of realisation apart from cost of the suit. In the said suit, O.A. No.619/03 was preferred by plaintiff/appellant for interim injunction restraining the defendant/respondent from alienating the property measuring 61 cents situate in No.15, Vadakarai Village, Saidapet Taluk and another application No.2911/03 was also filed by plaintiff/appellant for furnishing security to the tune of Rs.35 lakhs failing which to attach property measuring 61 cents in No.15, Vadakarai Village, Saidapet Taluk. Both the applications were rejected by learned single Judge, as stated above. 3. The plaintiff/appellant claimed that the respondent borrowed a sum of Rs.25 lakhs promising to pay with interest at the rate of 36% per annum within one year from 23rd June, 1998. A deed of undertaking is stated to have been executed by the respondent on the said date, i.e., 23rd June, 1998. Further sum of Rs.20 lakhs was also borrowed by respondent from him. A letter of understanding stated to have been executed by respondent in this regard on 31st March, 2000 undertaking that the payment of Rs.20 lakhs would be paid on or before 10th June, 2000. .4. Before the trial court, the plaintiff/appellant submitted that the respondent was attempting to alienate the property in favour of other parties and if he is allowed to do so, the plaintiff cannot enjoy the fruits of the decree as may be passed in the suit. It was further submitted that the respondent had already transferred most of the properties in the names of the members of his family with a view to defeat the rights of the plaintiff/applicant and, therefore, unless interim order is passed, the plaintiffs right would be defeated. On the other hand, it was submitted on behalf of the respondent that the plaintiff/applicant had chosen to file earlier a suit, C.S. No.904/00 before this Court in Nov., 2000 for recovery of certain amounts. On the other hand, it was submitted on behalf of the respondent that the plaintiff/applicant had chosen to file earlier a suit, C.S. No.904/00 before this Court in Nov., 2000 for recovery of certain amounts. In the said suit, though the plaintiff/applicant had alleged default of Rs.20 lakhs during June, 2000 due and payable to the plaintiff/applicant, no statement was made with regard to the present claim of Rs.25 lakhs as made in the suit. No details were furnished in the said suit and, thereby, the present suit, C.S. No.479/03 itself is not maintainable under Order II Rule 2 of the Code of Civil Procedure, the plaintiff/applicant having not obtained leave of the Court. It was also brought to the notice of the Court that the property in question had already been mortgaged to Tamil Nadu Mercantile Bank by the respondent in respect of which a civil suit, O.S. No.55/99 is pending on the file of Sub Court, Madurai. 5. In reply, it was contended on behalf of the plaintiff/applicant that the amount involved in the suit preferred by Tamil Nadu Mercantile Bank is about Rs.4.5 lakhs only and, thereby, there is every possibility on the part of the respondent to alienate the property. Learned single Judge, having noticed the submission and on perusal of the plaint of C.S. No.904/00, came to a conclusion that the present suit, C.S. No.479/03, prima facie not maintainable in view of Order II rule 2 of the Code of Civil Procedure and that the plaintiff/applicant has come with clean hands. 6. Similar argument was advanced by learned counsel for the parties before this Court. We have also noticed the plaint of C.S. No.904/00, present suit, C.S. No.479/03 and C.S. No.844/03, which has also been preferred by the plaintiff/appellant against the present respondent claiming Rs.11 lakhs towards compensation for criminal complaint. 7. In the earlier suit, C.S. No.904/00, the parties are same with similar position, appellant is the plaintiff therein and the respondent is the defendant. Though certain amendment in the prayer has been made subsequently, it appears that no specific pleading was originally made with regard to the present claim in the earlier suit. Both the transactions appears to have taken place out of the same cause of action. Though certain amendment in the prayer has been made subsequently, it appears that no specific pleading was originally made with regard to the present claim in the earlier suit. Both the transactions appears to have taken place out of the same cause of action. In the aforesaid circumstances, if a doubt has been raised and learned single Judge was of prima facie view that the subsequent suit attracted Order II Rule 2 of the Code of Civil Procedure, we are not inclined to interfere with such prima facie finding or to give a specific finding in this regard at this stage as such issue has to be determined in the suit by the trial court. We have also tried to find out whether a prima facie case is made out on behalf of the plaintiff/appellant for interim injunction for furnishing security as claimed for in two applications in question. We are of the view that no such ground has been made atleast before us to grant temporary injunction or to direct the respondent to furnish security as sought for. 8. There being no merit, both the appeals are dismissed. But there shall be no order as to costs.