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2013 DIGILAW 1709 (MAD)

Anil Nahar v. Vijay Nahar

2013-04-18

M.Jaichandren, M.M.Sundresh

body2013
JUDGMENT M.M. Sundresh, J. These Appeals have been preferred by the Appellants being aggrieved by the Common Order and Decree passed in O.A. Nos. 47 & 48 of 2012, dated 27.6.2012, by which an order of injunction was granted against the alienation and encumbrance over the suit properties. 2. The Appellants herein are the Defendants in the Suit. A Suit is laid by the Respondent for partition and separate possession. The suit properties, namely, Items 1 & 2 of the ‘A’ Schedule properties, were purchased in the name of the Second Appellant. The Second Appellant is the Company registered under the Companies Act, 1956. 3. Earlier, Applications were filed by the Respondent seeking an order of injunction. This Court, by a detailed order in O.A. Nos. 84 & 85 of 2004, granted an order of injunction against alienation alone. In the said order, the learned Single Judge has specifically stated that the prayer sought for against encumbrance cannot be granted. The said order of the learned Single Judge has become final between the parties. 4. Thereafter, the present Applications, namely, O.A. Nos. 47 & 48 of 2012 have been filed by the Respondent before the learned Single Judge, seeking an order of injunction against the proposed alienation and encumbrance as well. The learned Single Judge allowed both the Applications and hence, the present Appeals. 5. Mr. K. Ramu, learned Counsel appearing for the Appellants, would submit that the order passed by the learned Single Judge is contrary to law, as the Principles of res judicata would apply to the Interlocutory Applications as well. The learned Counsel would further submit that while there is no dispute regarding the order passed by the learned Single Judge on the earlier occasion that Appellants could not alienate Items 1 & 2 of ‘A’ Schedule properties, the earlier order would govern the issue regarding encumbrance. Therefore, the learned Single Judge has in fact reviewed the earlier order passed in O.A. Nos. 84 & 85 of 2004, which has become final between the parties. 6. The learned Counsel also submitted that what the Appellants seek is only to process the Application, seeking permission before the appropriate authorities and such a course adopted by the Appellants cannot be prevented. 7. It is further submitted by the learned Counsel for the Appellants that admittedly, the properties stand in the name of the Second Appellant. 6. The learned Counsel also submitted that what the Appellants seek is only to process the Application, seeking permission before the appropriate authorities and such a course adopted by the Appellants cannot be prevented. 7. It is further submitted by the learned Counsel for the Appellants that admittedly, the properties stand in the name of the Second Appellant. The Second Appeal being a Company and the Respondent not being a shareholder, the Suit laid as such is not maintainable in law. According to the Counsel, even assuming that the Respondent is a shareholder, such a relief cannot be sought for. The interim relief is incidental to the main relief and the main relief itself is not maintainable in law and hence, the Appeals will have to be allowed. In support of his contention, the learned Counsel for the Appellants relies upon the decision of the Apex Court in Bacha F. Guzdar v. Commissioner of Income Tax, Bombay, AIR 1955 SC 74 . 8. Per contra, Mr. AR.L. Sundaresan, learned Senior Counsel for the Respondent, would contend that what is proposed by the Appellants, would in fact, amount to alienation. The third party interest would step in. Therefore, considering the above said facts, the learned Single Judge has rightly allowed the Applications. When the learned Single Judge has considered the materials available on record, this Court, sitting on Appeal, shall not interfere with the same by re-appreciating the same. Hence, the learned Senior Counsel would submit that the Appeals will have to be dismissed. 9. The fact that the earlier Applications filed by the Respondent in O.A. Nos. 84 & 85 of 2004 and the decision rendered therein has become final between the parties, is not in dispute. In the said order, the learned Single Judge has specifically rejected the request of the Respondent regarding encumbrance. Even though the learned Single Judge in the Applications, which are under challenge before us, has taken note of the earlier order, the question of applicability and binding nature of the said order, has not been taken note of. It is settled position of law that the decision rendered in Interlocutory Applications would amount to res judicata. Therefore, we are of the view that the decision of the learned single Judge, insofar as the encumbrance is concerned, cannot be sustained. Admittedly, the earlier order covers the question regarding alienation also. It is settled position of law that the decision rendered in Interlocutory Applications would amount to res judicata. Therefore, we are of the view that the decision of the learned single Judge, insofar as the encumbrance is concerned, cannot be sustained. Admittedly, the earlier order covers the question regarding alienation also. It is not the case of the Appellants that they are going to alienate the property. In other words, the order of the learned Single Judge granted in O.A. Nos. 84 & 85 of 2004 binds both the parties. Therefore, there is no difficulty for us to hold that the Appellants cannot alienate the suit properties, namely, Items 1 & 2 of ‘A’ Schedule properties. 10. Now, the only question that arises for consideration is regarding encumbrance. As discussed above, the findings of the learned Single Judge regarding encumbrance cannot be sustained. The learned Single Judge has not found any reason for varying the decision made by the learned Single Judge on the earlier occasion while deciding the Applications in O.A. Nos. 84 & 85 of 2004. Therefore, in such view of the matter, we are inclined to set aside the findings of the learned Single Judge insofar as O.A. No. 47 of 2012 is concerned. We make it clear that while the Appellants cannot alienate the suit properties, namely, Items 1 & 2 of ‘A’ Schedule properties, they can encumber the said properties for the purpose of availing loan. It is clarified that the said properties can be mortgaged only for the purpose of business of the Company, namely, available sufficient loan. We further make it clear that it is open to the appellants to make such Application for the purpose of getting Planning Permission from the Appropriate Authorities. We also make it clear that the Appellants shall not put up any construction pending disposal of the Suit. 11. O.S.A. No. 281 of 2012 is dismissed as we are of the view that the Application filed in O.A. No. 48 of 2012 itself is unnecessary in view of the earlier order passed in O.A. No. 85 of 2004 by the learned Single Judge, by which an order of injunction has been granted against the alienation, which has become final between the parties. O.S.A. No. 280 of 2012 is allowed in part to the extent the Appellant is permitted to encumber the suit properties for the purpose of availing loan. Considering the limited issues involved in the Suit, we request the learned Single Judge to dispose of the Suit, preferably within a period of six months from the date of receipt of a copy of this order. We also direct the learned Master to proceed with the recording of evidence, so as to enable the learned Single Judge, dealing with the final hearing of the Suit, to decide the Suit expeditiously. We further make it clear that the order passed by this Court is subject to the final decision to be made in the Suit. No costs. Consequently, M.P. Nos. 1+1 of 2012 are closed.