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2012 DIGILAW 4714 (MAD)

E. Elangovan v. G. Manoharan

2012-11-19

VINOD K.SHARMA

body2012
Judgment :- Vinod K. Sharma, J. 1. The plaintiff / applicant has filed this original application, under order XIV Rule 8 r/w Order 39 Rules 1 & 2 of Code of Civil Procedure, for grant of interim injunction, restraining the defendant or any person acting on his behalf from in any manner alienating four shops bearing Shop Nos.T/B63, T/E65, T/B78 and T/E78, Koyambedu Wholesale Anna Fruit Market Koyambedu, Chennai, till disposal of the suit. 2. The plaintiff / applicant is a wholesale food trader in the Koyambedu Anna Wholesale Fruit Market and the defendant is one of the customers. The plaintiff / applicant in normal course of business sold and delivered fruits to the defendant against cheques with a credit of one month. 3. It is the submission of the plaintiff / applicant that a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) is due from the defendant. The cheques, which were isued in favour of the plaintiff / applicant bounced on presentation. It is the case of the applicant / plaintiff, that the defendant has no intention to pay the cheque amount and wanted to cheat, as fruits were taken against bounced cheques. 4. It is the case of the plaintiff / applicant that inspite of legal notice, the amount was not paid. The petitioner has also issued public notice regarding the amount due to him from the defendant. It is submitted that the defendant is the owner of four shops referred to above, which he is taking steps to dispose of the property to run away from Chennai. 5. It is further stated that shops are closed and he is not doing any business in the shop. It is the apprehension of the applicant / plaintiff that the defendant / respondent will alienate the scheduled property to a third party putting him to grievous loss. However, no material particulars in support of this averment have been placed on record. 6. Learned counsel for the applicant / plaintiff contended, that under Order XXXIX Rule 1 & 2, he is entitled to maintain this application, as the respondent / defendant is trying to dispose of the property to defeat the right of the plaintiff. 7. Order XXXIX Rule 1 & 2 reads as under: "XXXIX: Temporary Injunctions and Interlocutory Orders 1. 6. Learned counsel for the applicant / plaintiff contended, that under Order XXXIX Rule 1 & 2, he is entitled to maintain this application, as the respondent / defendant is trying to dispose of the property to defeat the right of the plaintiff. 7. Order XXXIX Rule 1 & 2 reads as under: "XXXIX: Temporary Injunctions and Interlocutory Orders 1. Cases in which temporary injunction may be granted Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 3[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach: (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 8. The reading of Order XXXIX Rules 1 & 2 shows that the injunction can be granted only with regard to the suit property and not other property. (2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 8. The reading of Order XXXIX Rules 1 & 2 shows that the injunction can be granted only with regard to the suit property and not other property. It is not in dispute that the properties against which injunction is sought are not the subject matter of the suit. Nor there is a prayer for grant of permanent injunction. No application for temporary injunction is maintainable, when the final relief of injunction is not granted. The Original Application, on the face of it being totally misconceived, is not sustainable in law. 9. Consequently, the Original Application is ordered to be dismissed. No costs.