Karnataka High Court
Sri P Sunil Kumar vs Sri S Ajay Kumar on 11 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
M.F.A.NO.3065 OF 2021 (CPC)
BETWEEN:
SRI. P. SUNIL KUMAR,
AGED ABOUT 56 YEARS
S/O LATE B POPATLAL,
BY 1ST WIFE LATE KAMALA DEVI,
No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
...APPELLANT
(BY SRI. VEERENDRA SHARMA R, ADVOCATE)
AND:
1. SRI. S. AJAY KUMAR,
AGED ABOUT 51 YEARS,
S/O G. SHANTILAL,
R/AT No.19/1, 'ANIL MANSION'
KANAKAPURA ROAD,
CORNER TO H.B. SAMAJ ROAD,
BASAVANAGUDI, BENGALURU - 560 004.
2. SMT. SUNITHA,
AGED ABOUT 51 YEARS,
D/O LATE B POPATLAL,
BY 1ST WIFE LATE KAMALA DEVI,
W/O SRI H. ANAND KUMAR BOHRA,
R/AT 1ST CROSS, ROBERTSONPETH,
KOLAR GOLD FIELDS, KOLAR.
2
3. SMT. SARITA,
AGED ABOUT 50 YEARS,
D/O LATE B POPATLAL,
BY 1ST WIFE LATE KAMALA DEVI,
W/O SRI NIRMAL MANDOTH,
R/AT 'SARITA'S BOUTIQUE'
TAILORING CREATIONS,
DICKENSON ROAD,
BENGALURU - 560 042.
4. SMT. SUSHMA,
AGED ABOUT 49 YEARS,
D/O LATE B POPATLAL,
BY 1ST WIFE LATE KAMALA DEVI,
W/O SRI RAJKUMAR RANKA,
R/AT VENKATARAMANA STREET,
BEHIND SRI KRISHNA SWEETS,
T. NAGAR, CHENNAI, TAMIL NADU.
5. SMT. PADMA BAI,
AGED ABOUT 65 YEARS,
W/O LATE B POPATLAL,
R/AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
6. SMT. DEEPA,
AGED ABOUT 34 YEARS,
D/O LATE B POPATLAL,
BY 2ND WIFE LATE PADMA BAI,
RESIDING AT No.66/1, 'KAMAL KIUNJ',
KANKAPURA ROAD,
SURVEYOR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
7. SRI. P. MANOJ KUMAR,
AGED ABOUT 33 YEARS,
S/O LATE B POPATLAL,
BY 2ND WIFE LATE PADMA BAI,
3
EARLIER REP BY GPA HOLDER
P. SUNIL KUMAR AND NOW
R/ AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOUR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
8. KUM. S. NAMRATHA,
AGED ABOUT 26 YEARS,
D/O SRI. P. SUNIL KUMAR,
REP BY FATHER AND GPA HOLDER
SRI. P. SUNIL KUMAR,
R/AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOUR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
9. SRI. S. RAHUL,
AGED ABOUT 23 YEARS,
S/O SRI. P. SUNIL KUMAR,
R/AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOUR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
10. SMT. P. LEELA,
AGED ABOUT 52 YEARS,
W/O SRI. P. SUNIL KUMAR,
R/AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA ROAD,
SURVEYOUR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
11. M/S RITE-ROUTE DISTRIBUTION PVT. LTD.,
A COMPANY REGISTERED UNDER THE
INDIAN COMPANIES ACT, 1956,
REPRESENTED BY ITS DIRECTOR,
SRI. P. SUNIL KUMAR,
AGED ABOUT 54 YEARS,
S/O LATE B. POPATLAL,
4
BY 1ST WIFE LATE KAMALA DEVI,
R/AT No.66/1, 'KAMAL KUNJ',
KANAKAPURA MAIN ROAD,
SURVEYOUR STREET CORNER,
BASAVANAGUDI, BENGALURU - 560 004.
...RESPONDENTS
(BY SRI. M.R. VIJAYA KUMAR, ADVOCATE FOR R-1)
THIS MFA IS FILED UNDER 43 RULE 1 (q) OF CPC
AGAINST THE ORDER DATED 01.06.2021 PASSED ON
I.ANO.1 IN O.S.NO.7710/2018 ON THE FILE OF THE XXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-23, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 38
RULE 5 R/W SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant aggrieved by the order dated
01.06.2021 passed on I.A.No.1 in O.S.No.7710/2018 by
the XXV Additional City Civil and Session Judge,
Bengaluru (CCH-23), filed this appeal.
2. The appellant is the defendant No.1,
respondent No.1 is the plaintiff and respondents No.2 to
11 are the defendants No.2 to 11 before the Trial Court.
For the sake of convenience, the parties are referred to
as per the ranking before the Trial Court.
3. Brief facts leading rise to filing of this appeal
are as under:
The plaintiff filed a suit in O.S.No.7710/2018 for
recovery of money against the defendants. The
defendants have obtained a loan from the plaintiff and
executed registered mortgage deed in favour of the
plaintiff. The defendants did not pay the loan amount.
Accordingly, plaintiff issued legal notice calling upon the
defendants to pay the loan amount. In spite of service
of notice, defendants failed to pay the loan amount. The
plaintiff was constrained to file a suit for recovery of
money. In the said suit, plaintiff filed an application i.e.,
I.A.No.1 seeking to pass an order of conditional order of
attachment before judgment of suit schedule C to G
properties. In support of the said application, plaintiff
has filed an affidavit contending that the defendants
have executed a registered mortgage deed for a sum of
Rs.3,51,00,000/- (Rupees Three Crores Fifty One Lakhs
only) with future interest. The defendants No.1 to 9,
who are the legal heirs of late B. Popatlal had indebted
to Karur Vysya Bank Ltd., Basavanagudi Branch,
Bengaluru and also other persons who are unable to
clear the loan of the Bank. On the request of the
defendants No.1 to 9 and on execution of mortgage
deed, plaintiff had cleared the entire loan amount on
schedule 'A' property, which was in the name of
defendant No.11, for which the defendants No.1 to 9 are
the guarantors. It is further contended that the
defendants No.1 to 9 have undertaken to repay the loan
amount within the stipulated time and failed to repay the
loan amount. It is further contended that the
defendants No.1 to 9 are making hectic efforts to sell
away the property and with an intention to defeat the
rights of the plaintiff. Hence, plaintiff filed an
application.
The said application is opposed by the defendant
No.1 contending that the defendants are not alienating
the suit schedule property. It is further contended that
the plaintiff has not made out ingredients as required
under Order 38 Rule 5 of C.P.C. Hence, on these
grounds, he prays to reject the application.
The Trial Court after hearing the parties allowed
the application filed by the plaintiff and directed the
defendants No.1 to 10 to furnish security for
Rs.2 crores within two months from the date of passing
the order. On failure of the defendants No.1 to 10 to
furnish the security within two months the application
schedule C to G properties shall be attached before
judgment. Hence, this appeal.
3. Heard the learned counsel for
appellant/defendant No.1 and also learned counsel for
respondent No.1/plaintiff.
4. Learned counsel for the defendant No.1
submits that the defendant No.1 is not alienating the suit
schedule property. Further, the defendant No.1 has no
intention to obstruct or delay the execution of any
decree that may be passed against the defendant No.1.
He further submits that the plaintiff has not fulfilled the
ingredients of Order 38 Rule 5 of C.P.C. The Trial Court
without examining the said aspect has proceeded to pass
the impugned order. He further submits that the Trial
Court has committed an error in allowing the application.
Hence, on these grounds, he prays to allow the appeal.
5. Per contra, learned counsel for plaintiff
submits that the defendants No.1 to 10 are making
hectic efforts to alienate the suit schedule property. He
further submits that the plaintiff has complied the
ingredients of Order 38 Rule 5 of C.P.C. He further
submits that the Trial Court was justified in allowing the
application. Hence, on these grounds, he prays to
dismiss the appeal.
6. Perused the records and considered the
submissions of the learned counsel for the parties.
7. It is not in dispute that the defendants No.1
to 6, 8 and 9 have executed a registered mortgage deed
in favour of plaintiff. It is also not in dispute that the
defendants No.1 to 10 have failed to repay the loan
amount and further, plaintiff issued a legal notice calling
upon the defendants to pay the loan amount. In spite of
service of notice defendants No.1 to 10 did not pay the
loan amount. Further, plaintiff has filed a suit for
recovery of money. In the said suit, plaintiff filed an
application under Order 38 Rule 5 of C.P.C. From the
perusal of the application filed by the plaintiff, the
plaintiff has not contended that the defendants with an
intention to obstruct or delay the execution of any
decree that may be passed against the defendants, is
about to dispose of whole or any part of their property or
is about to remove the whole or any part of their
property from the local limits of the jurisdiction of the
Court. The aforesaid requirement is sine qua non for
grant of such a relief and no such relief can be granted if
the said requirement is not fulfilled. The Trial Court
without considering the said aspect has proceeded to
pass the impugned order. The plaintiff has failed to
prove that the defendants with a dishonest intention of
defeating or delaying the possible decree in the suit is
removing the suit property. Further, the Trial Court has
passed an order of temporary injunction restraining the
plaintiff from alienating the mortgaging property. Order
38 Rule 5 is a harsh one, judicial discretion should not be
exercised until the clear case has been made out, the
Court can order for furnishing security if it is satisfied.
In the present case, as observed above the plaintiff has
failed to satisfy that the defendants are trying to remove
the suit schedule property within the jurisdiction of the
Court and further the plaintiff has failed to prove that the
defendants are disposing the suit schedule property.
The defendants have already undertaken that the
defendants will not alienate the suit schedule property.
Their undertaking has been recorded. In view of the
same, the order passed by the Trial Court is perverse
and arbitrary. Accordingly, I proceed to pass the
following:
ORDER
i. The appeal is allowed.
ii. The impugned order on I.A.No.1 dated
01.06.2021 passed in O.S.No.7710/2018
is set aside.
iii. Accordingly, the application I.A.No.1 filed
by plaintiff is dismissed.
In view of disposal of appeal, I.A.No.1/2021 does
not survive for consideration and is accordingly disposed
of.
SD/-
JUDGE
GRD
