1 CRP.(PD) No.4313 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P. (PD) No. 4313 of 2017
and C.M.P. No.20269 and 21097 of 2017
S.K. Vatsala Cumari .... Petitioner
Versus
K. Kumaravel ....Respondent
Prayer:Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
04.09.2017 made in I.A.No.43 of 2017 in O.S.No.75 of 2017 on the file
of the IInd Additional Subordinate Court, Salem.
For Petitioner : Mr. C. Prabakaran
For Respondent : Mr. D. Shivakumaran
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https://www.mhc.tn.gov.in/judis
2 CRP.(PD) No.4313 of 2017
ORDER
This Civil Revision Petition has been filed by the petitioner seeking to set aside the fair and decreetal order dated 04.09.2017 made in I.A.No.43 of 2017 in O.S.No.75 of 2017 on the file of the IInd Additional Subordinate Court, Salem.
2. The petitioner herein is the defendant and the respondent herein is the plaintiff in the Original suit.
3. For the sake of convenience, the parties are referred to as per the rank cited in the Court below.
4. The case of the petitioner is that the suit for recovery of money in O.S. No.75 of 2017 was filed by the plaintiff/respondent herein against the defendant/petitioner herein. During the pendency of the suit proceedings, the plaintiff has filed I.A.No.43 of 2017 under order 38 rule 5 of CPC for attachment of schedule mentioned property before Judgment against the defendant. After hearing both sides, the Trial Court allowed the said application by its order dated 04.09.2014 on condition directing the 2/5 https://www.mhc.tn.gov.in/judis 3 CRP.(PD) No.4313 of 2017 defendant/petitioner herein to furnish the security for suit claim amount. Being not satisfied with the aforesaid order, the defendant/petitioner herein has filed the present Civil Revision Petition to set aside the same.
5. The learned counsel for the petitioner would submit that there is no legal enforceable debt between the plaintiff/respondent herein and the defendant/petitioner herein, the cheque was issued only as a security for chit transaction. While being so, during the pendency of the suit proceedings, the plaintiff has filed I.A. No.43 of 2017 in O.S. No.75 of 2017 for attachment of the property of the defendant for the suit claim. The defendant/petitioner herein has given undertaking affidavit to the effect that she never alienate the property to 3rd party and ready to defend the suit. After giving such undertaking affidavit, while there is no apprehension established by the plaintiff/respondent herein, the Trial Court has directed the defendant to furnish the security for the suit claim is not sustainable and liable to be dismissed. To support of his contention, the learned counsel for the petitioner has placed reliance of the Judgment dated 04.06.2021 passed by this Court in C.R.P.(PD) (MD) No.825 of 2021. The Trial Court without appreciating the aforesaid factual aspect, 3/5 https://www.mhc.tn.gov.in/judis 4 CRP.(PD) No.4313 of 2017 allowed the application on condition directing the defendant/petitioner herein to furnish the security for suit claim amount even after filing undertaking affidavit before the Trial Court. Hence, the order dated 04.09.2017 in I.A. No.43 of 2017 in O.S. No.75 of 2017 passed by the Trial Judge is liable to be set aside.
6. Per contra, the learned counsel for the respondent would submit that mere undertaking is not sufficient since the defendant/petitioner herein has intended to alienate the property to 3rd party. The same will not tantamount to attachment of the property while the application has been filed under order 38 rule 5 of CPC. If the property has been sold out to the 3rd party, the plaintiff/respondent herein would be put to irreparable loss. Hence, the Trial Judge has rightly allowed the application directing the defendant/petitioner herein to furnish the security for suit claim. Hence, the Civil Revision Petition is liable to be dismissed.
7. Heard the learned counsel for the petitioner and the learned counsel for the respondent as well as perused the materials available on record.
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8. On a perusal of the records, the plaintiff filed the suit for recovery of money against the defendant pursuant to the proceedings in STC No.909 of 2015 on the file of the Judicial Magistrate No.III, Salem under Section 138 of N.I. Act since the defendant attempted to alienate her property to 3rd party, such circumstances, the plaintiff filed the I.A. No.43 of 2017 in O.S. No.75 of 2017 seeking for attachment of schedule mentioned property before Judgment. After perusing the oral and documentary evidence, the Trial Court considered that undertaking affidavit is not sufficient to justify the claim of the petitioner in petition under order 38 rule 5 of CPC filed by the plaintiff/respondent herein relied on the Judgment of this Court in the case of K. Venkatesan Vs. A. Shanmuga Sundaram reported in 2017(3) Law Weekly page 545 hence, directed the defendant to furnish the security for the suit claim on condition. However, the defendant has not complied the same till now even after nearly 5 years. More undertaking affidavit given by the parties could not be incorporated in the encumbrance through the Registrar and the object of the Order 38 rule 5 would be defeated. Thus, the Court below is right in not satisfied with the undertaking affidavit. Hence, this Court is not inclined to interfere with the order dated 04.09.2017 passed by the 5/5 https://www.mhc.tn.gov.in/judis 6 CRP.(PD) No.4313 of 2017 Trial Court and hence, the Civil Revision petition is liable to be dismissed and accordingly it is dismissed. However, considering age of the petitioner who is 70 years old lady and submissions of the learned counsel for both parties, this Court is inclined to refer the matter before the Mediation Centre, Salem for amicable settlement between the parties. Hence, the parties are hereby directed to appear before the Mediation Centre, Salem, on 28.09.2022 along with their respective counsel and after mediation, the Trial Court shall take up the matter for appropriate disposal on merit.
9. With the aforesaid directions, the Civil Revision Petition is disposed of. Consequently, connected miscellaneous petition is closed if any. No costs.
19.09.2022 Lbm Index : Yes/No Speaking Order : Yes/No 6/5 https://www.mhc.tn.gov.in/judis 7 CRP.(PD) No.4313 of 2017 To:
1. The IInd Additional Subordinate Court, Salem.
2. The Section Officer, V.R.Section High Court, Madras.
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Lbm C.R.P. (PD) No. 4313 of 2017 and C.M.P. No.20269 and 21097 of 2017 19.09.2022 8/5 https://www.mhc.tn.gov.in/judis