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2023 DIGILAW 2062 (MAD)

Nagammal v. C. Lizy Janet Bai

2023-06-14

C.SARAVANAN

body2023
JUDGMENT (Prayer: Petition filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 22.07.2022 of the learned Additional District Judge of Kuzhithurai, made in I.A.No.2 of 2019 in O.S.No.173 of 2019 on his file, dismissing the said I.A.) 1. The petitioners are the defendants in O.S.No.173 of 2019 filed by the respondent on 10.08.2019 before the Principal District Court, Kanyakumari at Nagercoil. 2. The petitioners are aggrieved by the impugned order passed by the Court below in I.A.No.2 of 2019 seeking to attach seven different properties. The relevant portion of the impugned order reads as under:- ''''5. The point for consideration whether this petition as to be allowed or not? Heard both Sides arguments, Perused the petition and Counter averments, The petitioners side no oral and documentary evidence has been let in on the respondent side Ex.R1 marked no oral evidence let in. i) The petition is filed by the Petitioner/Plaintiff for under Order 38 Rule 5 under 151 of C.P.C. to attach the petition mentioned property before judgment. ii) The main contention of the petitioner is that there is a lawful apprehension that the Defendants/respondents intend to sale property to any third parties two defray the plaintiff is lawful claim. Hence he pray for allow this application. iii) The respondent filed of a detailed counter alleging that the husband of the first respondent and father of the second and third respondent filed an insolvency petition No.3/2015 before the Hon''ble Principal District Court and Kanyakumari at Nagercoil, which has been marked as Ex.R1 in this petition in that in page 15 Serial No.3, the petitioner/plaintiff name was mentioned. Hence this pray for dismissal of this petition. while so on perusal of Ex.R1 it is true that the petition was filed by P.N.Uadyar Pillai and he was died on 18.01.2017. But no legal heirs has been impleaded till 17.02.2021 further the Insolvency Petition No.3/2015 not at all disposed by the Hon''ble Principal District Judge Kanyakumari at Nagercoil till this date. iv) To sum of everything the apprehension of the petitioner/plaintiff of lawful one hence this court inclined to allow this Petition and point for consideration decided in favour of the petitioner. In the result this petition is allowed. Attach by 05.09.2022. Batta in 3 days. Call on 05.09.2022.'''' 3. iv) To sum of everything the apprehension of the petitioner/plaintiff of lawful one hence this court inclined to allow this Petition and point for consideration decided in favour of the petitioner. In the result this petition is allowed. Attach by 05.09.2022. Batta in 3 days. Call on 05.09.2022.'''' 3. On behalf of the petitioners, the learned counsel for the petitioners submits that the suit is based on a fabricated promissory note dated 18.01.2017, which is said to have been executed by the first petitioner herein [first defendant] along with her husband Late.Udayar Pillai, who died on 18.01.2019. It is submitted that the pre-suit notice dated 27.07.2019 was addressed to the address at Kuzhithurai and within 15 days of the said notice, the suit was filed on 10.08.2019. It is specifically stated that the said notice was not received by the petitioners. It is therefore submitted that the petitioners have also filed a written statement, where they have disputed the execution of the alleged promissory note, dated 18.01.2017. 4. It is submitted that there is no scope for attaching the property before judgment under Order XXXVIII Rule 5 of C.P.C. He further submits that the plaint is cryptic and also does not disclose the date of the amounts borrowed. The learned counsel for the petitioners, however, fairly submits that the first petitioner''s husband and the father of petitioners 2 and 3 Late.Udayar Pillai had indeed borrowed a sum of Rs.10,00,000/- from the respondent/plaintiff in the year 2013 and had also paid interest upto 2015 and thereafter, on account of various factors, was unable to repay the amounts to the respondent herein. 5. It is submitted that the first petitioner''s husband Late.Udayar Pillai had also filed I.P.No.3 of 2015 before the Principal District Court, Kanyakumari at Nagercoil, declaring himself as insolvent under the provisions of the Provincial Insolvency Act, 1920, wherein the respondent herein was arrayed as the third respondent. It is submitted that the said proceeding stood abated as the first petitioner''s husband died on 18.01.2019 and therefore, I.P.No.3 of 2015 was dismissed on 13.03.2019. 6. It is submitted that the impugned order is contrary to the well settled principles of law. It is submitted that mere filing of an affidavit is not sufficient for the Court to order attachment before judgment of an immovable property, as has been held by the Hon''ble Supreme Court in Raman Tech & Process Engg. 6. It is submitted that the impugned order is contrary to the well settled principles of law. It is submitted that mere filing of an affidavit is not sufficient for the Court to order attachment before judgment of an immovable property, as has been held by the Hon''ble Supreme Court in Raman Tech & Process Engg. Co. and another vs. Solanki Traders reported in 2008 (2) SCC 302 , which has been followed by several Courts. 7. It is submitted that it is mandatory for the Court to give an opportunity to the defendants before passing the drastic order of attachment as engrafted in Order XXXVIII Rule 5(1) of C.P.C. In this case, unnecessarily the self-earned property of the first petitioner herein, who was a Bank employee, has been attached. It is further submitted that the petitioners have no objection for rest of the properties to be attached, considering the fact that the loan was borrowed by Late.Udayar Pillai during his life time in the year 2013 and that the suit could not have been filed during the pendency of the insolvency proceedings in I.P.No.3 of 2015. 8. In support of his submissions, the learned counsel for the petitioners has also relied on several decisions of this Court as detailed below:- (i) Renox Commercials Ltd. vs. Inventa Techonologies Pvt. Ltd. reported in AIR 2000 Madras 213 (ii) M.S.Sakthivel and another vs. R.Sekar reported in 2002 (1) MLJ 756 (iii) S.Sidarth vs. P.Lalitha Kumari and others reported in 2014 (2) CTC 639 (iv) Global Plastics vs. T.K.K.N.N.Vysya Charities reported in 2019 (2) MWN (Civil) 409 9. Defending the impugned order, the learned counsel for the respondent/plaintiff submits that the impugned order although cryptic, is well reasoned order and therefore, does not call for interference. It is further submitted that in the application filed by the respondent in I.A.No.2 of 2019, a notice in Form- VII to Appendix – F of C.P.C. was sent from the Court to the petitioners. However, the petitioners failed to furnish any security and therefore, the Court was inclined to pass the impugned order, attaching all the properties enumerated in the schedule to the petition in I.A.No.2 of 2019. He therefore submits that the impugned order does not call for interference in the hands of this Court and therefore, prayed for dismissal of the Civil Revision Petition. He therefore submits that the impugned order does not call for interference in the hands of this Court and therefore, prayed for dismissal of the Civil Revision Petition. Alternatively, the learned counsel for the respondent/plaintiff submits that there can be a direction to the Trial Court to dispose the suit in O.S.No.173 of 2019, as the pleadings have already been completed. 10. I have considered the arguments advanced by the learned counsel for the petitioners and the learned counsel for the respondent. 11. The decisions cited by the learned counsel for the petitioners are in the context of ordinary money suit. The case under consideration is for recovery of money due on a promissory note dated 18.01.2017, allegedly executed by the first petitioner and her late husband Udayar Pillai. 12. Section 118 of the Negotiable Instruments Act, 1881, contemplates presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:- ''''(a) of consideration. —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date. —that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance. —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer. —that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements. —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp. —that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course.—that the holder of a negotiable instrument is a holder in due course:'''' Therefore, the initial burden is on the petitioners to show that there was no possibility of the promissory note being executed either by the first petitioner or her husband. This could have been achieved by the petitioners by subjecting the promissory note for examination by the Court, showing that the signature in the promissory note either forged or fabricated. 13. Mere bald denial in the written statement is not sufficient. This could have been achieved by the petitioners by subjecting the promissory note for examination by the Court, showing that the signature in the promissory note either forged or fabricated. 13. Mere bald denial in the written statement is not sufficient. At the same time, it is noticed that the impugned order passed by the learned Additional District Judge, Kuzhithurai, is bereft of details. Before passing an order attaching a property, more so, a residential property, the Court has to follow the procedure prescribed under Order XXXVIII Rule 5 of C.P.C. The Court has to come to the conclusion that the petitioner/petitioners is/are likely to defeat the decree, which may be secured by the respondent, apart from the fact that the respondent has a prima facie case to succeed in the suit. Mere assertion by the respondent that the petitioner/petitioners is/are likely to sell the property or is/are going to abscond from the jurisdiction of the Court, is not sufficient for the Court to attach the property. There has to be some formidable and concrete evidence. The law on the subject is very clear. 14. The order that has been passed by the learned Additional District Judge, Kuzhithurai, is cryptic and is not reasoned. To balance the interest of the parties, I am inclined to set aside the impugned order dated 22.07.2022, passed in I.A.No.2 of 2019 in O.S.No.173 of 2019 and remit the case back to the learned Additional District Judge, Kuzhithurai, for passing a fresh order on merits and in accordance with law. The learned Additional District Judge, Kuzhithurai, shall pass appropriate orders after considering all the attendant facts, including the apprehension expressed by the respondent that the petitioners may abscond or bring the property for sale. Status quo as on date shall remain in force till orders are passed in de novo proceeding. 15. In view of the above, the learned Additional District Judge, Kuzhithurai, is directed to dispose I.A.No.2 of 2019 de novo afresh within a period of 30 days from the date of receipt of a copy of this order. All the issues are left open. It is made clear that the parties are directed to maintain status quo as on date and co-operate with the Trial Court. 16. Accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.