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2015 DIGILAW 1226 (MAD)

Raja Holdings rep. by it's Managing Partner R. v. Subramaniam VS S. Rajnikanth

2015-03-02

C.S.KARNAN

body2015
JUDGMENT:- 1. Since the issue involved in all these review applications are interlinked with each other, they are clubbed, heard together and are being disposed of in this common order. 2. The short facts of the case are as follows: The review petitioner/plaintiff filed a suit in O.S.No.51 of 2013, on the file of Principal District Court, Thanjavur, against the respondents herein and one Navaneethakrishnan, for recovery of Rs.3,98,20,200/- together with interest @ 30% per annum from the date of plaint till the date of realization. Along with the said suit, the review petitioner/plaintiff filed the following interlocutory applications: I.A.No.87 of 2013: Seeking an order of interim injunction restraining the respondents 1 and 2 /defendants 3 and 4 not to alienate the properties described in the accompanying petition till the disposal of the suit and also an order of ex parte ad interim injunction to the like effect to the disposal of the application. I.A.Nos.88 and 89 of 2013: Seeking an order of interim direction upon the third respondent/second defendant to furnish security for a sum of Rs.5 Crores for the purpose of satisfying the decree, which may be passed in his favour within a stipulated time and in default to attach the petition mentioned properties and if after such attachment the third respondent/second defendant failed to comply with the same, to make absolute the order of interim attachment. The Trial Court, after hearing both sides, dismissed all these interlocutory applications, by order dated 29.08.2013. Aggrieved by the said order of dismissal, the review petitioner/plaintiff filed C.R.P. (NPD) (MD) Nos.1714 & 1715 of 2013 and C.M.A.No.1709 of 2013 before this Court. This Court, after hearing both sides, dismissed both the revision petitions as well as the civil miscellaneous appeal, by orders dated 05.12.2013, on merits, and also directed the learned Principal District Judge, Thanjavur, to dispose of the suit in O.S.No.51 of 2013, on top most priority and on merits. Being aggrieved by the said orders, dated 05.12.2013, the plaintiff has filed these review applications to review the said orders, dated 05.12.2013, made in C.R.P.(NPD) (MD) Nos.1714 & 1715 of 2013 and C.M.A.No.1709 of 2013. 3. The highly competent counsel Mr. Being aggrieved by the said orders, dated 05.12.2013, the plaintiff has filed these review applications to review the said orders, dated 05.12.2013, made in C.R.P.(NPD) (MD) Nos.1714 & 1715 of 2013 and C.M.A.No.1709 of 2013. 3. The highly competent counsel Mr. G.R. Swaminathan appearing for the review petitioner/plaintiff submits that the respondents/defendants made an endorsement stating that they will not alienate the property in dispute till the disposal of the suit and since they have given such an undertaking, this Court ought to have allowed the civil revision petitions and the civil miscellaneous appeal, but this Court dismissed all these cases. Further, in this case, order of attachment before Judgment is absolutely required, since the defendants 1 and 2 have duly executed a pro-note in favour of the plaintiff and the defendants 3 and 4 have also given an undertaking to the plaintiff for settling the said loan amount. 4. Further, the highly competent counsel submits that the plaintiff filed interlocutory applications seeking an order of interim injunction restraining the respondents/defendants not to alienate the petition mentioned properties and also to furnish security for a sum of Rs.5 Crores. But, the respondents/defendants are in a hurried manner to dispose the petition mentioned property known as Spencer Plaza to the third party and the third respondent verified the documents with the City Union Bank, wherein the said property was mortgaged. Therefore, the learned counsel entreats the Court to modify the earlier order and to direct the respondents/defendants to furnish security for a sum of Rs.5 Crores within a period of four weeks from the date of receipt of a copy of this order or to direct the Trial Court to attach the petition mentioned properties. The learned counsel further prays to direct the respondents/defendants not to alienate or not to deal with all the properties whatsoever in any manner till the disposal of the suit. 5. Mr.S.Balaraman, highly competent counsel, appearing for the respondents 1 and 2 submits that the review petitions filed by the petitioner/plaintiff are not at all maintainable, since this Court dismissed the revision petitions and the civil miscellaneous appeal on merits and directed the learned Trial Judge to dispose of the suit on top most priority and on merits and hence the plaintiff has to proceed the suit for speedy remedy, for which the respondents/defendants also extend their cooperation for speedy trial. Therefore, the above review petitions are liable to be dismissed. 6. Mr. Elephant Rajendran, highly competent counsel, appearing for the respondent in both Rev. Aplc. (MD) Nos.3 and 4 of 2014 submits that the revision petitioner/plaintiff has claimed 36% interest per annum, which is a higher rate of interest. Further, the defendants have paid more than Rs.3 Crores and the same was admitted by the plaintiff. Further, he submits that property, as mentioned in the petition, has created a charge in favour of City Union Bank, Kumbakonam, for obtaining loan, wherein deposit of title deeds were submitted. Therefore, the alienation of property or attachment of property before Judgment does not arise in the instant case, since the property has been simple mortgaged with the Bank. As such the defendants have not possessed marketable title deeds for alienating the property as mentioned in the petition, since there is encumbrance over the said property. Therefore, he requests the Court to dismiss the review applications. 7. Per contra, Mr. G.R. Swaminathan, highly competent counsel for the petitioner/plaintiff submits that the attachment order before Judgment is subject to the bank loan. Further, the plaintiff annexed 28 documents along with the plaint in order to prove the claim against the defendants. It is an admitted fact that the defendants 1 and 2 have duly executed pro notes in favour of the plaintiff. In addition to that the defendants 3 and 4 have given an undertaking stating, that they are also responsible to clear the said loan. As such, there is a prima facie case on the review petitioner/plaintiff. If attachment order before Judgment is not granted, then the plaintiff will be put into hardship and at the same time the defendants will not be prejudiced. Therefore, this Court may direct the defendants to furnish security for a sum of Rs.5 Crores or to direct the Trial Court to attach the property as mentioned in the petition till the disposal of the suit. 8. From the above discussions, this Court is of the view that the suit in O.S.No.51 of 2013 has been filed in the month of July, 2013 along with interlocutory application for attachment before the Judgment of the petition schedule mentioned property. 8. From the above discussions, this Court is of the view that the suit in O.S.No.51 of 2013 has been filed in the month of July, 2013 along with interlocutory application for attachment before the Judgment of the petition schedule mentioned property. In I.A.No.87 of 2013 in O.S.No.51 of 2013, the plaintiff prayed an order of interim injunction to restrain the defendants from alienating the petition mentioned properties till the disposal of the suit, likewise, the plaintiff also filed another two interlocutory applications in I.A.Nos.88 and 89 of 2013, seeking an order of attachment of the petition mentioned properties. All these interlocutory applications were dismissed by the Trial Court on 29.08.2013. 9. Aggrieved by the said order of dismissal, the plaintiff preferred civil miscellaneous appeal in C.M.A.No.1709 of 2013 against I.A.No.87 of 2013, C.R.P.(NPD) (MD) Nos.1714 & 1715 of 2013 against I.A.Nos.88 of 2013 and 89 of 2013 respectively, before this Court and this Court, by Judgment, dated 05.12.2013, dismissed these civil revision petitions and the civil miscellaneous appeal on merits since Mr. Elephant Rajendran, learned counsel for the respondent in both Rev. Aplc.(MD) Nos.3 and 4 of 2014 made an endorsement on 28.11.2013 stating that the C.R.P.(NPD) (MD) No.1714 of 2013 relating to the property situated at Spenser Plaza, 7th Floor, may be permitted to sell for settling the dues to City Union Bank and to the revision petitioner/plaintiff. In respect of the other properties mentioned in C.M.A.(MD) No.1709 and C.R.P.(NPD) (MD) No.1715 of 2013 shall not be culminated or encumbered till the disposal of the suit in O.S.No.51 of 2013, on the file of the Principal District Court, Tanjore and the matter may also be referred to Mediation Centre, Tanjore and orders may be passed accordingly. 10. On the strength of the endorsement made by the learned counsel, who is part of the Judiciary, this Court dismissed the said civil revision petitions and the civil miscellaneous appeal, since the intention of the respondent in both Rev. Aplc. (MD) Nos.3 and 4 of 2014 is to clear the loan amount to the plaintiff. However, to be on the safe side, this Court directed the learned District Judge, Tanjore, to dispose the main suit in O.S.No.51 of 2013, on top most priority basis without being influenced by the discussions of this Court and passed orders accordingly on 05.12.2013. Aplc. (MD) Nos.3 and 4 of 2014 is to clear the loan amount to the plaintiff. However, to be on the safe side, this Court directed the learned District Judge, Tanjore, to dispose the main suit in O.S.No.51 of 2013, on top most priority basis without being influenced by the discussions of this Court and passed orders accordingly on 05.12.2013. Now, after the expiry of one year, the said property Spenser Plaza, 7th Floor, has not been disposed of and the loan amount has not been settled to the plaintiff. In such circumstances, this Court is constrained to modify the order, dated 05.12.2013, made in C.R.P.(NPD)(MD) Nos.1714 & 1715 and C.M.A.(MD) No.1709 of 2013, on the following observations: The plaintiff filed the suit in O.S.No.51 of 2013, attached with 28 documents regarding loan transactions between the defendants and the plaintiff. The defendants 1 and 2 filed their written statement stating that they did not categorically denied the loan transaction, but their contention is with regard to higher rate of interest and the part payment made to the plaintiff towards the loan amount, it proves that there is a connection between the defendants and the plaintiff. As such there is a prima facie case on the side of the plaintiff. If the attachment order is passed before the Judgment on the main suit, both parties will not be prejudiced. At the same time, if the attachment order is not passed before the Judgment, then the plaintiff will be put into hardship and the balance of convenience is also on the side of the plaintiff, considering the current prevailing condition. Therefore, these review applications are appropriate for modifying the earlier order and consequently, the character of the order, dated 05.12.2013, passed in C.R.P.(NPD)(MD) Nos.1714 & 1715 and C.M.A.(MD) No.1709 of 2013 will not be affected. The attachment order before the Judgment of the suit in O.S.No.51 of 2013, on the file of the Principal District Court, Thanjavur, will not affect the ownership and the title of the property of the defendants. The attached property is just under the custody of the Court on temporary basis and as such the title deeds and ownership of the property will not be attached or affected. 11. The attached property is just under the custody of the Court on temporary basis and as such the title deeds and ownership of the property will not be attached or affected. 11. Considering the facts and circumstances of the case, arguments advanced by the learned counsels on either side and the views as glanced above, the review applications are allowed and the order, dated 05.12.2013 in C.R.P.(NPD)(MD) Nos.1714 & 1715 and C.M.A.(MD) No.1709 of 2013, filed by the petitioner herein, is modified and the interlocutory applications in I.A.Nos.87, 88 and 89 of 2013 in O.S.No.51 of 2013 are hereby set aside. Further, this Court directs the learned Principal District Judge, Tanjore, to dispose of the suit in O.S.No.51 of 2013 on day-to-day basis, on or before 30.04.2015. The attachment order is subject to the bindings of the City Union Bank, Kumbakonam. No costs. Consequently, connected miscellaneous petitions in M.P.(MD) Nos.1 & 1 of 2014 in Rev.Aplc.(MD) Nos.2 & 4 of 2014 are closed.