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2017 DIGILAW 2725 (MAD)

P. Chandran v. A. Mahendrapandi

2017-08-18

T.RAVINDRAN

body2017
ORDER : 1. The revision petitioner/plaintiff has laid the suit in O.S.No.693 of 2016 against the respondents herein for recovery of money on the basis of the promissory notes. It is found that the revision petitioner has also given presuit notice claiming the suit amount from the respondents and further, it is found that despite the receipt of the said pre-suit notice sent by the revision petitioner, the respondents have not responded to the same. It is further seen that the respondents have set up a defence in the suit laid by the revision petitioner contending that only the first respondent had borrowed a sum of Rs.50,000/- from the revision petitioner and executed the promissory note and according to them, at that point of time, the revision petitioner had obtained various signatures in the blank promissory notes from them and therefore, according to them, with the use of the said documents, the revision petitioner has laid the suit against them and therefore, it is stated that the suit levied by the revision petitioner is liable to be dismissed. It is, thus, found that indirectly the respondents have admitted that the signatures found in the suit promissory notes belonged to them and according to them, the revision petitioner had made use of the blank promissory notes with their signatures for filing the present suit against them. It is further found from the pleas set out by the respondents in the written statement that according to them, they had discharged the amount borrowed from the revision petitioner. If that be so, it could be seen that in the normal course of events, the respondents would have endeavoured to get back the signed blank promissory notes handed over by them to the revision petitioner at the time of the borrowal of the amount. However, according to the respondents, the revision petitioner had been delaying the return of the said signed blank promissory notes to them. 2. Be that as it may, based upon the suit promissory notes, now the revision petitioner has filed I.A.No.526 of 2016, under Order XXXVIII Rule 5 and Section 151 C.P.C., for attaching before Judgment the petition schedule property belonging to the respondents in the event of their failing to furnish security within the time stipulated by the Court. 2. Be that as it may, based upon the suit promissory notes, now the revision petitioner has filed I.A.No.526 of 2016, under Order XXXVIII Rule 5 and Section 151 C.P.C., for attaching before Judgment the petition schedule property belonging to the respondents in the event of their failing to furnish security within the time stipulated by the Court. It is clearly averred by the revision petitioner in the said application that the respondents have already mortgaged the petition schedule property with the Bank and therefore, if the respondents are allowed to further encumber or alienate the property, the revision petitioner would be put to irreparable loss and hardship and therefore, according to the revision petitioner, the respondents should be called upon to furnish security for the suit claim and in the event of failure to furnish the same, the petition schedule property should be attached before Judgment. The respondents have resisted the said application contending that the allegations made by the revision petitioner that they are trying to further encumber or alienate the petition schedule property is incorrect and the same has already been mortgaged with the Bank and further, reiterating the case as put forth in the written statement, they sought for dismissal of the application. 3. The Court below, on a consideration of the materials placed, without correctly going into the merits of the claim of the revision petitioner, dismissed the application preferred by him on the footing that inasmuch as the suit is ripe for trial, the relief sought for by the revision petitioner cannot be entertained and accordingly, dismissed the application. Aggrieved over the same, the present civil revision petition has been preferred. 4. Aggrieved over the same, the present civil revision petition has been preferred. 4. As rightly argued by the learned counsel for the revision petitioner, the defendants having admitted the signatures in the promissory notes indirectly and that apart, they having also not taken due steps to retrieve the signed blank promissory notes said to have been given to the revision petitioner at the time of borrowal of the amount and further, the respondents are also being found to be not responding to the legal notice issued by the revision petitioner before the institution of the suit and no acceptable reason whatsoever also having been given by the respondents with reference to the same and when according to the revision petitioner, the respondents have already mortgaged the petition schedule property with the Bank, which fact is not in dispute and further when the apprehension of the revision petitioner is that the respondents would further encumber or alienate the property so as to deprive the revision petitioner from enjoying the fruits of the decree that may be passed in the suit, it is argued by the learned counsel for the revision petitioner that in the interest of justice and based upon the materials placed, the Court should have, at least directed the respondents to furnish the security for the suit claim and that would have been sufficient and on the other hand, the Court below had dismissed the application holding that since the suit is ripe for trial, the revision petitioner should establish his cause in the suit and therefore, according to him, the impugned order is liable to be reversed. 5. Per contra, it is the contention of the learned counsel for the respondents that inasmuch as the respondents have disputed their liability to pay the suit amount, the Court below has rightly discountenanced the claim for attachment before Judgment made by the revision petitioner as no acceptable material has been placed and hence, the impugned order does not warrant any interference. 6. However, as seen above, the revision petitioner is found to have placed prima facie materials in support of his claim. 6. However, as seen above, the revision petitioner is found to have placed prima facie materials in support of his claim. When it is found that the respondents have already mortgaged the property, the apprehension of the revision petitioner that the respondents may further encumber or alienate the property cannot be easily brushed aside and when considering the facts stated above, the finding that the respondents have admitted their signatures in the suit promissory notes and their plea as against the same also found to be prima facie not justified, it is found that the Court below in the interest of justice, should have called upon the respondents to furnish the security for the suit claim. On the other hand, it is found that the Court below has dismissed the application laid by the revision petitioner. This approach of the Court below cannot be accepted. Though the power granted to the Court under Order XXXVIII Rule 5 C.P.C., is discretionary, still the discretionary power should be exercised by the Court judicially and on the materials placed by the respective parties, it is found that the respondents have already encumbered the property with the Bank and when the revision petitioner has also made out a prima facie case for the attachment of the property, it is seen that the Court below, as rightly argued by the learned counsel for the revision petitioner, should have ordered the respondents to furnish the security for the suit claim. 7. In this connection, the learned counsel for the revision petitioner placed reliance upon the decisions reported in AIR 2008 SC 1170 [Rajendran and others vs. Shankar Sundaram and others], 2011 (2) MWN (Civil) 599 [Krishna Ponnuswamy and another vs. K.David Anna Durai and another], 2011 (2) MWN (Civil) 604 [Perim Janardhana Rao and others vs. M.Balaji] and 2014-2-L.W.372 [R.Ramesh vs. R.Raveender]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 8. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 8. In the light of the above reasons, the fair and decreetal orders, dated 15.12.2016, passed in I.A.No.526 of 2016 in O.S.No.693 of 2016, on the file of the II Additional Subordinate Court, Madurai, are set aside and the respondents are directed to furnish security for the suit claim within a period of two weeks from the date of receipt of a copy of this order to the satisfaction of the Court below and in the event of the failure on the part of the respondents to furnish security as ordered, the Court below is directed to proceed further in the matter in accordance with law. 9. Resultantly, the civil revision petition is allowed with costs. Consequently, the connected miscellaneous petition is closed.