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2021 DIGILAW 379 (KER)

Tomy Sebastian, S/o. Mani Devassya v. Mini Harikumar, W/o. Harikumar

2021-03-31

T.V.ANILKUMAR

body2021
JUDGMENT : The plaintiffs in O.S.No.1379/2017 on the file of Third Additional Munsiff, Ernakulam, are the petitioners in this original petition. 2. The sole defendant in the suit offered security for an amount of Rs.5,50,000/- being the principal plaint amount seeking to vacate the conditional order of attachment before judgment passed in the suit. The petitioners objected to acceptance of the security contending that the security offered is not adequate to satisfy the decree that may be passed in the suit, since the suit claim includes 18% of interest per annum also. I.A.No.1/2020 filed by the defendant for an order seeking acceptance of security, was allowed rejecting the objections raised by the plaintiffs. 3. The impugned order dated 15.1.2021 passed in this respect is under challenge in this original petition. 4. I heard the learned counsel for the petitioners as well as the learned counsel for the respondent. 5. The contention of the petitioners is that unless the value of security covers not only the proposed plaint amount but interest also, the plaintiffs/petitioners may not be able to enjoy the decree that may be passed in the suit. 6. The learned counsel for the respondent sought to sustain the impugned order contending that what the Order XXXVIII Rule 5 of CPC provides is for furnishing of security for the plaint amount which cannot include pendente lite interest. In order to support his contention, he relied on a decision reported in Smitha v. P.C. Varghese & Anr. ( 2016 (2) KHC 793 ). 7. I went through the aforesaid decision which does not lay down any such law as canvassed by the learned counsel for the respondent. 8. It is obvious from the Scheme underlying Chapter XXXVIII and Rules 5 and 6 therein that the defendant, who seeks to get rid of an order of conditional attachment before judgment, has to furnish such an amount of security as is enough to satisfy the decree. The decree presupposes the entire suit claim which includes interest as well. 9. Of course, what could be the rate of interest which the court may be empowered in the suit is a different question. In the present suit, the plaintiff has claimed 18% of interest. That is a matter which has to be decided by the court below concerned, having regard to the questions of law and facts. 9. Of course, what could be the rate of interest which the court may be empowered in the suit is a different question. In the present suit, the plaintiff has claimed 18% of interest. That is a matter which has to be decided by the court below concerned, having regard to the questions of law and facts. The plaintiff in the suit has to establish a prima facie case in regard to the claim for interest pendente lite. 10. The court below has not applied its mind on this aspect while passing the impugned order. The view that the security amount shall stand limited solely to the principal plaint amount, cannot be endorsed. 11. Having heard the submissions made by the learned counsel appearing on both sides, I am of the view that the impugned order cannot be sustained and the matter has to go back to the court below for fresh consideration in the light of the view expressed above. In the result, original petition succeeds and the impugned order is set aside. The court below shall fix the amount of security liable to be furnished inclusive of the pendente lite interest, after hearing the parties on either side. A decision in this respect shall be taken by the court below as expeditiously as possible and dispose of the application for attachment before judgment. All pending interlocutory applications are closed.