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2010 DIGILAW 1134 (MAD)

M. Noushed Sait v. P. Ethiraj

2010-03-19

M.JAICHANDREN

body2010
Judgment : 1. This Civil Revision Petition has been filed against the order, dated 31.3.2009, made in I.A.No.1492 of 2008, in O.S.No.888 of 2008. 2. The plaintiff in the suit, in O.S.No.888 of 2008, is the petitioner in the present Civil Revision Petition. The petitioner had filed the suit against the defendant, who is the respondent herein, claiming an amount of Rs.26,28,626/-based on the three promissory notes, dated 13.6.2007, 17.7.2007 and 28.4.2008, issued by the defendant in favour of the plaintiff. The petitioner herein had filed an interlocutory application, in I.A.No.1492 of 2008, along with the suit, in O.S.No.888 of 2008, on the file of the first Additional District Judge, Coimbatore, to direct the respondent to furnish sufficient security for the suit claim, on or before a specified date and on failure thereof, order attachment of the immovable petition mentioned property before judgment, pending disposal of the suit under Order 38 Rule 5 of the Civil Procedure Code, 1908. 3. The first Additional District Judge, Coimbatore, by his order, dated 31.3.2009, had dismissed the said interlocutory application stating that the allegation of the petitioner that the respondent is attempting to alienate his application mentioned property had not been substantiated by sufficient evidence. Aggrieved by the said order, dated 31.3.2009, the petitioner had preferred the present Civil Revision Petition before this Court, under Article 227 of the Constitution of India. 4. During the course of the hearing of M.P.No.1 of 2009, filed in C.R.P.(PD) No.2268 of 2009, this Court had passed the following order, on 13.10.2009, which reads as follows: "Mr. K. Sukumaran, learned counsel appearing for the respondent/defendant states that the respondent/defendant will file an undertaking stating that unless and until the amount payable to the revision petitioner/plaintiff is paid by the proposed purchaser Mr.S.A.Kumar or by any other means, the two sale agreements dated 10.10.2007, and March, 2009 will not be proceeded by the respondent/defendant and such undertaking will be filed on 20.10.2009. Post on 20.10.2009 to file undertaking affidavit." 5. Thereafter, on 15.2.2010, this Court had passed an order, which is as follows: "Recording the submission already made by the learned counsel for the respondent/defendant, this Court directed the respondent/defendant to file an undertaking that he would not proceed with two sale agreements dated 10.10.2007 and March 2009 until the amount payable by the revision petitioner is settled by the proposed purchaser. 2. 2. Though the matter was already posted to 20.10.2009 for filing such an undertaking, an adjournment was sought for by the respondent/defendant on one pretext or the other. 3. It is a case where the revision petitioner/plaintiff filed a suit for recovery of a whopping sum of Rs.28 lakhs based on three pronotes alleged to have been executed by the respondent/defendant. It is also an admitted fact that the respondent/defendant has entered into an agreement of sale with one Mr.S.A.Kumar to sell the properties in his name. Those properties are sought to be attached by the revision petitioner. 4. Therefore, the revision petitioner/plaintiff has demonstrated before this Court that the respondent/plaintiff is making efforts to alienate the subject properties. Unless he is restrained from alienating those properties or the respondent/defendant comes out with sufficient security, the revision petitioner/plaintiff would be left with only a paper decree. 5. In view of the above, the respondent/defendant is directed to file an undertaking that he would not proceed further with the two sale agreements he had already entered into with one Mr.S.A.Kumar on or before 24.2.2010 failing which this Court will be constrained to order an attachment before the judgment. 6. Post this matter on 25.02.2010 under the same caption." 7. When the matter was listed before this Court for hearing, the learned counsel appearing for the respondent had submitted that the respondent had not come forward to file an affidavit, as directed by this Court, by its orders, dated 13.10.2009, and 15.2.2010. In such circumstances, the order of the first Additional District Judge, Coimbatore, dated 31.3.2009, made in I.A.No.1492 of 2008, in O.S.No.888 of 2008, is set aside. Consequently, I.A.No.1492 of 2008, shall stand allowed, attaching the properties shown in the schedule forming part of the said application, as prayed for by the petitioner. 8. The learned counsels appearing for the petitioner and the respondent had submitted that the suit, in O.S.No.888 of 2008, which at present is pending on the file of the Fast Track Court, No. III, Coimbatore, may be directed to be disposed of, within a period specified by this Court. 9. 8. The learned counsels appearing for the petitioner and the respondent had submitted that the suit, in O.S.No.888 of 2008, which at present is pending on the file of the Fast Track Court, No. III, Coimbatore, may be directed to be disposed of, within a period specified by this Court. 9. In view of the submissions made by the learned counsels appearing for the parties concerned, the learned Fast Track Judge No.III, Coimbatore, is directed to dispose of the suit, in O.S.No.888 of 2008, on merits and in accordance with law, as expeditiously as possible, not later than six months from the date of receipt of a copy of this order. This Civil Revision Petition is ordered accordingly. No costs. Consequently, connected M.P.No.1 of 2009 is closed.