Madras High Court
Aegan Industries Pvt.Ltd vs Vishva Cottex on 1 April, 2021
C.M.A.No.3090 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.3090 of 2017
and
C.M.P.No.18834 of 2017
Aegan Industries Pvt.Ltd.,
No.280, Bommanallur – 638 673,
Palani Highway, Dharapuram Taluk,
Tirupur District,
Rep. by its Managing Director,
Thyagarajan Arunkumar. .. Appellant
Vs.
Vishva Cottex,
“Anjani” 1, Mayur Nagar,
Amin Marg,
Near Rudraksh Building,
Kalavad Road, Rajkot,
Gujarat State,
Rep. by its Proprietor
Mrs.Mitalben.B.Bodar .. Respondent
PRAYER : Civil Miscellaneous Appeal is filed under Order 43 rule 1(q) of
Civil Procedure Code, against order of the learned III District Judge,
Dharapuram, Tirupur District dated 07.10.2016 in I.A.No.111 of 2016 in
O.S.No.207 of 2016.
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C.M.A.No.3090 of 2017
For Appellant : Mr.T.M.Hariharan
For Respondent : No appearance
JUDGMENT
The appellant herein is the defendant O.S.No.207 of 2016 which
was filed by the respondent / plaintiff for recovery of money and in the said
suits I.A.No.111 of 2016 was filed by the respondent / plaintiff praying to
attach the immovable properties belongs to the appellant.
2. After full enquiry, the learned Trial Judge allowed
I.A.No.111 of 2016 and attached the properties belongs to the defendant.
Aggrieved by the said order, the appellant has preferred this appeal.
3. The question of law that arises for consideration in this
appeal is as to
“ whether the learned trial Judge erroneously ordered to
attach the properties belongs to the appellant without
appreciating the fact that until and unless claim is proved, no
attachment can be effected?”
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C.M.A.No.3090 of 2017
4. The respondent / plaintiff has filed the suit in O.S.No.207
of 2016, for recovery of Rs.45,35,350/- with interest against the appellant /
defendant. He filed I.A.No.111 of 2016 under Order 38 Rule 5 and Section
151 of CPC praying to furnish the security from the defendant, failing which,
he prayed to attached the properties of the defendant. The trial Court ordered
against the appellant / defendant to attach the B-Schedule properties belongs
to him. Aggrieved by the same, the appellant has preferred this appeal.
5. It is also admitted fact that, already properties were
mortgaged with the State Bank of India which is having first charge over the
schedule mentioned properties. Considering this fact, while passing the order,
the learned trial Judge observed that subject to the charge claim of the bank
as well as the charge over the properties, the learned trial Judge has ordered
to create the second charge subject to the bank attaching B-Scheduled
properties and the fact is not denied by the appellant.
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C.M.A.No.3090 of 2017
6. At the time of arguments, the main objection raised by the
appellant is that the properties worth several Crores of Rupees. So, the
appellant is not entitled to attach all the properties for the suit claim.
7. But as discussed above, since already charge had been
created by Bank and subject to the charge alone, the properties were attached
as per the order passed in I.A.No.111 of 2016 by the learned No.III,
Additional District Judge, Dharapuram. Further, there is no material evidence
on the side of the appellant to prove that the properties are valid more than
Crores of Rupees.
8. Considering the facts and circumstances of the case, to
safeguard the interest of the plaintiff it is just necessary, that the properties of
the defendant have to be attached. Accordingly, the order passed by the
learned No.III, Additional District Judge, Dharapuram, is justifiable one,
which requires no interference by this Court.
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C.M.A.No.3090 of 2017
9. In this result, the Civil Miscellaneous Appeal is
dismissed, as devoid of merits and the order passed by the learned III District
Judge, Dharapuram, Tirupur District dated 07.10.2016 in I.A.No.111 of 2016
in O.S.No.207 of 2016 is confirmed. Consequently connected Civil
Miscellaneous petition is closed. No Costs.
01.04.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.3090 of 2017
T.V.THAMILSELVI,J.
rri
C.M.A.No.3090 of 2017
and
C.M.P.No.18834 of 2017
01.04.2021
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