Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3274 (MAD)

Petitioner v. Respondent

2014-09-12

M.JAICHANDREN, R.MAHADEVAN

body2014
Judgment R. Mahadevan, J. 1. This Miscellaneous Petition has been filed praying that this Court may be pleased to make a complaint to the Judicial Magistrate having competent jurisdiction to take cognizance of the offences committed by the respondent punishable under Sections 191, 192, 196, 199, 200, 205, 209 and 210 I.P.C. 2. Facts leading to the filing of the present Miscellaneous Petition, are as follows: 2.1. The respondents herein were the subscribers to the chit conducted by one late Sivaraman and they deposited several sums with him. The said Sivaraman borrowed money from various persons to carry on his chit business and he died suddenly on 05.05.1987. The petitioners herein are the only legal representatives of the said Sivaraman. Since the petitioners herein did not settle the amounts due to the respondents, they filed the suit in O.S.No.102 of 1987 on the file of the Subordinate Court, Nagercoil. 2.2. The trial Court, on enquiry, decreed the suit as prayed for and appointed one practising Advocate as Administrator, who took over the possession of the properties concerned. Aggrieved over the same, the above appeal in A.S.No.716 of 1992 was filed along with the other appeals. 2.3. This Court, by common judgment dated 11.11.2008, passed in A.S.Nos.716, 717, 718, 720, 722 of 1992 and Tr.A.S.Nos.641 and 643 of 1999, dismissed the above appeal in A.S.No.716 of 1992, filed by the petitioners herein/defendants 1 to 4 therein, leaving it open to the parties to approach the trial Court for appropriate relief. 2.4. When that being the factual position, now, the petitioners herein, have come forward with the present Miscellaneous Petition. 2.5. The grievance of the petitioners is that pending the above appeal, the petitioners had settled 37 creditors and thereafter, they filed an application before this Court seeking permission to sell items 1 to 5, 7 to 9 of the suit properties in O.S.No.102 of 1987 on the file of the Sub Court, Nagercoil and this Court, by order dated 23.07.2003, allowed the Administrator to sell the said properties by public auction and to deposit the sale proceeds in an interest bearing account. The Administrator sold out the properties except item No.9, however, he did not deposit the sale proceeds as per the order of this Court. The Administrator sold out the properties except item No.9, however, he did not deposit the sale proceeds as per the order of this Court. Having come to know about the sale advertisement made by the Administrator, the fourth petitioner herein wanted to purchased the same, for which, she got the assistance of one Subramanian and Murugan, the 13th respondent, to purchase the said item on her behalf. 2.6. After the bid was closed for a sum of Rs.75,03,000/-(Rupees Seventy Five Lakhs and Three Thousand only), the fourth petitioner herein paid a sum of Rs.19,00,000/- (Rupees Nineteen Lakhs only) to the said Subramanian, so as to enable him to pay the said amount to the Administrator. Thereafter, on 08.01.2008, she further paid a sum of Rs.31,00,000/-(Rupees Thirty One Lakhs only) to the Administrator through the said Subramanian. Again, on 28.01.2008, she obtained a Demand Draft for a sum of Rs.8,00,000/-(Rupees Eight Lakhs only) and the same was submitted to the Administrator. Thereafter, the petitioners filed an application seeking two weeks' time to pay the balance of Rs.17,03,000/-(Rupees Seventeen Lakhs and Three Thousand only) and this Court, by order dated 29.01.2008, granted time upto 12.02.2008. Accordingly, the fourth petitioner herein paid the said amount through Subramanian. The 13th respondent had also executed a declaration dated 07.04.2008 stating that he bid for the property on behalf of the said Subramanian and to execute the sale deed in his favour. 2.7. Later, the said Subramanian filed an application to confirm the sale in his name. While so, the 13th respondent filed M.P(MD)No.2 of 2008 to confirm the sale in his favour. Therefore, the said Subramanian filed M.P(MD)No.3 of 2008 seeking to confirm the sale in his name. This Court, by order dated 08.09.2008, cancelled the said auction and directed to conduct re-auction. 2.8. Thereafter, the auction was held on 14.10.2009 and the 13th respondent bid for the same amount. Again, M.P(MD)No.4 of 2008 was filed by the said Subramanian praying refund of the said amount of Rs.75,03,000/- (Rupees Seventy Five Lakhs and Three Thousand only). The fourth petitioner herein filed M.P(MD)No.5 of 2008 to sell the said item of property to her. In that event, all the appeals came to be dismissed by directing the parties to approach the trial Court for appropriate relief and also set aside the second auction. The fourth petitioner herein filed M.P(MD)No.5 of 2008 to sell the said item of property to her. In that event, all the appeals came to be dismissed by directing the parties to approach the trial Court for appropriate relief and also set aside the second auction. Therefore, the fourth respondent and the said Subramanian had proposed to file an application before the trial Court seeking refund of the sum of Rs.75,03,000/-(Rupees Seventy Five Lakhs and Three Thousand only). However, the creditors took an application seeking to bring the other properties for sale. 2.9. Meanwhile, the fourth respondent and the said Subramanian, alleging various offences under the Indian Penal Code, filed a private complaint, which was rejected and the revision filed before this Court was also dismissed for default. 2.10. The specific allegation of the fourth petitioner herein is that in the affidavit filed in support of M.P(MD)No.2 of 2008, the 13th respondent had made false statements as though he only filed M.P(MD)No.1 of 2008 seeking extension of time for payment of Rs.25,03,000/- (Rupees Twenty Five Lakhs and Three Thousand only) to the Administrator. 2.11. It is the main grievance of the fourth petitioner herein that the balance consideration of 25,03,000/- (Rupees Twenty Five Lakhs and Three Thousand only) was paid by the 13th respondent is nothing but a falsehood, as he did not know about the mode of payments made by the fourth petitioner herein and the said Subramanian. 2.12. The fourth petitioner herein also stated that the copy of the challan dated 25.01.2008 filed in the typed set of papers therein as serial No.4, was stated to be the receipt issued by the Administrator, however, according to the fourth petitioner herein, the said amount was paid in two installments. Further, the fourth petitioner contended that the document filed in serial No.3 would also exhibit falsehood. According to her, those challans were used by the 13th respondent to show that they were the receipts issued by the Administrator. Hence, the petitioners herein seek criminal prosecution as against the 13th respondent for the offences punishable under Sections 191, 192, 196, 199, 200, 209, 210 read with Section 193 I.P.C. 2.13. According to her, those challans were used by the 13th respondent to show that they were the receipts issued by the Administrator. Hence, the petitioners herein seek criminal prosecution as against the 13th respondent for the offences punishable under Sections 191, 192, 196, 199, 200, 209, 210 read with Section 193 I.P.C. 2.13. Per contra, the 13th respondent, denying the allegations levelled by the petitioners, filed a counter affidavit stating that the petitioners had prevented the distribution of a sum of Rs.75,03,000/- (Rupees Seventy Five Lakhs and Three Thousand only) to the decree holders by their frivolous claim and hence, he prayed for the dismissal of the present miscellaneous petition. 3. Mr. G. Prabhu Rajadurai, learned Counsel for the petitioners submitted that the 13th respondent had committed fraud on the Court by producing the created documents so as to achieve his false claim and that he had committed serious offences warranting criminal prosecution and that the documents filed in support of M.P(MD)No.2 of 2008, would speak volumes about the ingenuity of the claim of the 13th respondent and accordingly, sought permission of this Court to make a complaint against him before the learned Judicial Magistrate concerned. 4. On the contrary, Mr. E.V.N. Siva, learned Counsel for the 13th respondent vehemently contended that the petitioners had tried to delay the distribution of the sale proceeds in respect of the item No.9 of the properties and that without any evidence, the petitioners could not plead criminal prosecution against the 13th respondent and that since he had participated in the auction, the petitioners had aggrieved over him and hence, he prayed for the dismissal of this petition. 5. We have considered the rival submissions and scrutinised the materials available on record. 6. No doubt, this Court, by common judgment dated 11.11.2008, dismissed the above appeal along with the other connected appeals and thereby, directed the parties to work out their remedy before the trial Court. 7. We find that the present miscellaneous petition has been filed by the petitioners, after a long lapse of six years from the date of the common judgment passed by this Court on 11.11.2008. 7. We find that the present miscellaneous petition has been filed by the petitioners, after a long lapse of six years from the date of the common judgment passed by this Court on 11.11.2008. We do not understand as to what prevented the petitioners to bring the veracity of the documents filed by the 13th respondent before this Court in M.P(MD)No.2 of 2008 and having kept quiet for such a long period, now the petitioners approached this Court making allegations as against the 13th respondent, that too, on the ground of fraud committed by him. 8. Considering the submissions made on either side and on perusal of the materials available before this Court, we could see no force in the contention of the learned Counsel for the petitioners as already, this Court found that the appeals filed before this Court were not tenable and dismissed the same, directing the parties to approach the trial Court. Accordingly, we find no merit in this miscellaneous petition. 9. In fine, this miscellaneous petition is dismissed, giving liberty to the petitioners to work out their remedy, if any, before the trial Court as per law. No costs.