HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
C.M.A.NO.103 OF 2021 AND C.R.P. NO.323 OF 2021
COMMON JUDGMENT:
(Per Sri Justice M.S.Ramachandra Rao)
Heard Sri Prabhakar Sripada, learned counsel for the appellant in
C.M.A.No.103 of 2021 / petitioner in C.R.P.No.323 of 2021 / plaintiff in
the suit and Sri P. Venkataramana, learned counsel for respondents 1 and
2 / defendants 1 and 2 in the suit. The 3rd respondent / 3rd defendant in the suit, is not a necessary party.
2. The parties will be referred to as per their array in the suit. The case of the plaintiff
3. The plaintiff filed the said suit for recovery of a sum of Rs.1,62,98,750/- against defendants 1 and 2.
4. He contended that the 1st defendant is his friend, that the 2nd defendant is the wife of the 1st defendant and defendants 1 and 2 are partners in M/s. Sita Logistics. He alleged that to meet financial necessities to operate the business of M/s. Sita Logistics, the 1st defendant approached the plaintiff for a hand loan of Rs.1.50 Crores and the plaintiff advanced the said amount on various dates during the financial year 2017-18 on the pledge by the 1st defendant of the original documents of petrol pump dealership issued by Indian Oil Corporation; that the 1st defendant also executed an agreement dt.16.08.2017 promising to pay the said amount on or before 10.12.2018 with interest 2 at 12% per annum or else the plaintiff would also be inducted as a partner in M/s. Sita Logistics.
5. According to the plaintiff, though the period of the agreement ended on 10.12.2018, the 1st defendant did not make payment of the borrowed amount.
6. The plaintiff submitted that the 3rd defendant, who is brother-in- law of the 1st defendant, intervened and informed the plaintiff that the 1st defendant sustained loss in the business and made a settlement proposal; and according to the same, a Memorandum of Understanding dt.03.01.2019 was entered into between the plaintiff and defendants 1 and 3, under which Rs.45,00,000/- was paid to the plaintiff by the 3rd defendant, who agreed to pay a further sum of Rs.1.25 Crores with interest at 18% per annum on or before 03.01.2020 by depositing the original documents relating to the immovable properties of the 3rd defendant with the plaintiff.
7. The plaintiff contended that even the 3rd defendant did not repay the amounts to the plaintiff, and on 10.01.2020 defendants 1 and 2 informed the plaintiff that they inducted him as new partner in M/s. Sita Logistics and requested him to extend the repayment schedule mentioned in the Memorandum of Understanding (MoU) dt.03.01.2019 to another three months.
8. According to the plaintiff, the 1st defendant issued a promissory note dt.10.01.2020, and the 2nd defendant also gave a personal guarantee- cum-undertaking dt.10.01.2020 to the plaintiff, along with a letter issued 3 by the Indian Oil Corporation approving the 2nd defendant as a partner in M/s. Sita Logistics.
9. The plaintiff contended that the amounts had not been paid by the defendants and if defendants 1 and 2 sell or create third party rights of the dealership to any third party to defeat the legitimate claim of the plaintiff, the plaintiff would suffer loss and so the plaintiff had filed the suit.
I.A.No.411 of 2020
10. Along with the plaint, the plaintiff filed I.A.No.411 of 2020 under Order XXXIX Rules 1 and 2 CPC for grant of ad interim injunction in favour of the plaintiff and against defendants 1 and 2 to restrain the defendants from creating any third party rights including alienation of the dealership of the Indian Oil Corporation petrol pump in the plaint schedule property.
11. On 10.08.2020 in I.A.No.411 of 2020, an ex parte ad interim injunction was granted in favour of the plaintiff restraining defendants 1 and 2 from creating third party rights including alienation of the dealership of the Indian Oil Corporation petrol bunk in the suit schedule property until further orders.
The stand of the 1st defendant
12. In the said Application, counter affidavit was filed by the 1st defendant contending that the 2nd defendant is not a partner in M/s. Sita Logistics and even the 3rd defendant is not in any way concerned with the suit transaction.
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13. He denied that the plaintiff had advanced a sum of Rs.1.50 Crores during the financial year 2017-18 and that he had pledged the original documents of the petrol bunk dealership and executed an agreement dt.16.08.2017 promising to pay the said amount with interest at 12% per annum on or before 10.12.2018. According to him, the 1st defendant's father's surname was wrongly mentioned in the agreement dt.16.08.2017 and if he did really execute such document, he would not give wrong surname of his own father. He also denied about the settlement proposal allegedly made by the 3rd defendant and the execution of the MoU dt.03.01.2019 and deposit of the original documents by the 3rd defendant.
14. The 1st defendant also denied that he and the 2nd defendant approached the plaintiff on 10.01.2020 requesting to extend repayment schedule and that they thereafter executed the promissory note dt.10.01.2020 and the 2nd defendant had given personal guarantee-cum- undertaking on 10.01.2020 to the plaintiff.
15. He contended that in March, 2020 prior to the institution of the suit, he had a proposal to transfer the dealership of the petrol bunk in favour of one J.Surender, and he (1st defendant) was paid Rs.80,00,000/- towards advance for transfer of dealership. According to him, by 06.05.2020 he had already received Rs.2.70 Crores, and by the date of grant of ex parte temporary injunction, transfer of dealership had already been effected and ex parte injunction granted on 10.08.2020 is inoperative.
16. According to the 1st defendant, the plaintiff had come in 2010 to the 1st defendant's petrol pump and developed acquaintance with him 5 and his workers; that the plaintiff introduced himself as a collection agent in Mallikarjuna Finance, Old Bowenpally, a Chit Fund Company, and that its owner, by name Umaraju, was a big financer; that the plaintiff pestered the 1st defendant to participate in the chits of the chit fund company; in 2010 the 1st defendant subscribed to the chit comprising of the value of Rs.10,00,000/- and later to the chits of the value of Rs.25,00,000/- and Rs.50,00,000/- in Mallikarjuna Chits and in the process of auction of the chit as a usual formality his signatures were taken on blank stamp papers, blank cheques along with original documents of the petrol bunk.
17. The 1st defendant alleged that the plaintiff used to come regularly for collection of the chit subscription money till 2019 and thereafter certain other persons, who were employees of the said chit fund company, came to collect the chit subscription money. According to him, on 20.03.2020, he gave Rs.25,00,000/- in final settlement of the chits to the other employees of Mallikarjuna Chit Fund Company and they had also issued a receipt, but they did not return the blank stamp papers, blank cheques bearing his signatures and the original documents of the petrol bunk.
18. He also contended that he had given a police complaint on 21.08.2020 which was registered as FIR No.125 of 2020 against the plaintiff. He contended that he did not take any money from the plaintiff, and the plaintiff, by concocting forged documents filed the suit and obtained ex parte temporary injunction against the defendants as if they 6 borrowed amount from him. He therefore prayed for vacation of the injunction.
I.A.No.601 of 2020 in IA No.411 of 2020
19. In the said I.A.No.411 of 2020, the plaintiff filed I.A.No.601 of 2020 contending that the defendants were denying service of notice by WhatsApp which was sent to defendants 1 and 3 on their mobile numbers; that the said WhatsApp messages were sent to the 1st defendant and the plaintiff had taken screenshots of the same and also took printout from an internet centre which was duly attested by the internet centre owner; and though the defendants are denying the receipt of notices on their mobile numbers through WhatsApp issued by the plaintiff from his phone number, the same is seen in the screenshot printout; and there were a series of chats on WhatsApp between defendants 1 and 3 and the plaintiff, which show that the money transaction between the parties is correct and that the plaintiff had approached the Court with clean hands.
20. The plaintiff contended that the print version of all the chats is the same as that of the phone version and they were stored in his phone as screenshots, that these chats have been sent to an e-mail address from his WhatsApp and the internet centre owner has taken printouts of the same and also copied them into a CD and therefore permission may be accorded by the Court to receive the chat printout copy along with the CD under Section 65-B of the Indian Evidence Act, 1872. 7 The stand of the 1st defendant in IA No.601 of 2020
21. No counter affidavit was filed in I.A.No.601 of 2020, but the said Application was opposed on the ground that electronic evidence requested to be received by the plaintiff is not supported by the certificate required under Section 65-B(4) of the Evidence Act and at this stage they are not admissible.
22. In I.A.No.411 of 2020, the plaintiff marked Exs.P1 to P9 and defendants 1 and 2 marked Exs.R1 to R5.
The common order passed by the Court below in I.A.No.411 of 2020 and I.A.No.601 of 2020
23. By common order dt.09.12.2020, the Court below dismissed both I.A.No.411 of 2020 and I.A.No.601 of 2020 in O.S.No.21 of 2020.
24. As regards I.A.No.601 of 2020, the Court below held that WhatsApp messages must be proved through evidence in chief and cross examination during trial and so in an interlocutory application, the request of the plaintiff cannot be considered because the mobile device which has the actual conversation was not presented before the Court. It was also held that no permission would be granted to the plaintiff to lead electronic evidence in the absence of certificate under Section 65-B (4) of the Indian Evidence Act, 1872, and therefore I.A.No.601 of 2020 was dismissed.
25. As regards I.A.No.411 of 2020, the Court below observed that defendants 1 and 2 are questioning the genuineness of Ex.P1 agreement dt.16.08.2017, Ex.P2 Memorandum of Understanding dt.03.01.2019, Ex.P3 promissory note dt.10.01.2020 and Ex.P4 deed of personal 8 guarantee undertaking dt.10.01.2020 executed by the 2nd defendant; that the plaintiff is also questioning the genuineness of Ex.R1 receipt dt.18.03.2020, Ex.R2 receipt dt.06.05.2020 and Ex.R3 letter dt.07.07.2020; and that no opinion can be expressed in an enquiry during interlocutory applications on these aspects as to whether they are clean or not, and it should be only decided during trial.
26. It also observed that if really the 3rd defendant undertook to pay to the plaintiff Rs.1.00 Crore out of Rs.1.70 Crores on behalf of the 1st defendant and already paid Rs.45,00,000/- in cash to the plaintiff, in I.A.No.411 of 2020 the plaintiff should not have mentioned that the 3rd defendant was not a necessary party.
27. It therefore concluded that the plaintiff cannot be said to have proved prima facie case and that balance of convenience is not there in the plaintiff's favour because Indian Oil Corporation is not a party in this Application. It also observed that transfer of dealership cannot be done exclusively by the 1st defendant without the consent of the Indian Oil Corporation.
C.R.P.No.323 of 2021 and C.M.A.No.103 of 2021
28. Challenging the order in IA.No.601 of 2020, the plaintiff filed C.R.P.No.323 of 2021.
29. Challenging the order in IA.No.411 of 2020, C.M.A.No.103 of 2021 is filed.
9The consideration by the Court
30. Heard Sri Prabhakar Sripada for the plaintiff and Sri P.Venkatramana for the defendant No.s 1 and 2.
31. The court below had observed that, at an interlocutory application stage, no final opinion on the merits of the contentions can be expressed. This is no doubt true, but in an application for injunction, it is necessary for the Court to look at prima facie case, balance of convenience and irreparable injury and prima-facie take a view of the matter.
32. Merely because the plaintiff disputed Exs.R1 to R3 and defendants 1 and 2 disputed Exs.P1 to P4, the Court below cannot simply say that it will go into these documents only during the trial and will refrain from considering the same. To arrive at who has prima facie case in the interim injunction application filed under Order XXXIX Rules 1 and 2 CPC, it has to consider them.
33. In para 12 of the counter affidavit filed by the 1st defendant in I.A.No.411 of 2020, he himself admitted that he had given signed documents though allegedly in connection with a chit transaction. Therefore, signatures on the suit promissory note Ex.P3 and the agreements Exs.P1 and P2 and guarantee undertaking letter Ex.P4 are not denied by him.
34. Once his signature on these documents and in particular Ex.P3 promissory note is admitted, presumption under Section 118 of the Negotiable Instruments Act, 1882 about passing of consideration under a promissory note would arise, and the burden would be on the 1st 10 defendant to prove that there was no passing of consideration as is mentioned in the promissory note Ex.P3. This aspect seems to have escaped the attention of the Court below.
35. The Court below ought to have noticed that though the 1st defendant pleaded that Exs.P1 to P4 are concocted documents, but since the signatures are not disputed by him on these documents specifically, it can be said that the plaintiff has made out a prima facie case.
36. Also, Exs.R1 to R3 filed by the defendants themselves indicate that a large sum of money amounting to Rs.4.55 Crores was received from third parties by defendants 1 and 2 indicating that defendants 1 and 2 are attempting to dispose of the dealership they obtained from the Indian Oil Corporation to a third party confirming the allegation leveled by the plaintiff.
37. Thus all conditions for grant of an order of attachment of the property of 3rd defendant have been made out. There is no necessity at this stage to consider whether the Indian oil Corporation should have been impleaded as a party in the suit or that the 3rd defendant also was a necessary party in the I.A.No.411 of 2020.
38. In the judgment referred to by the Court below in Ambalal Sarabhai Enterprise Ltd. v. K.S. Infraspace LLP Ltd.1 in relation to WhatsApp messages, no doubt there is an observation that they are matters of evidence and their contents have to be proved during trial by evidence in chief and cross examination. But the said judgment nowhere 1 (2020) 5 SCC 401 11 states that such WhatsApp messages cannot be taken into account at the interlocutory stage.
39. Therefore, it appears that the Court below had misread the said judgment and incorrectly concluded that in interlocutory applications, unless the mobile device which has the actual conversation is presented before the Court, the WhatsApp messages cannot be considered. In fact if the Court below wanted the mobile device to be produced for its consideration, it should have directed the parties to submit their respective mobiles. But it has not done so.
40. Since the plaintiff has been able to make out a case for interim relief in IA.No.411 of 2020 without relying on the WhatsApp messages it is not necessary for us to consider the correctness of the Order in I.A.No.601 of 2020.
41. In this view of the matter, we are of the opinion that the common order passed by the Court below cannot be sustained.
42. Accordingly, C.M.A.No.103 of 2021 is allowed; order dt.09.12.2020 passed in I.A.No.411 of 2020 in O.S.No.21 of 2020 by the XXVII Additional Chief Judge, City Civil Court, Secunderabad is set aside and the said I.A. is allowed.
43. No orders are necessary to be passed in CRP. No.323 of 2021 wherein the order passed by the Court below in I.A.No.601 of 2020 is under challenge.
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44. It shall be open to the plaintiff to contest the correctness of the same during trial and persuade the Court below to admit the WhatsApp messages at that time. No costs.
45. Pending miscellaneous petitions, if any, in these matters shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 28-04-2021 Svv