Madras High Court
Herriot Soupramaniane vs Nisha on 8 April, 2021
C.R.P.(PD)No.197 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(PD).No.197 of 2019
and
C.M.P.No.1598 of 2019
Herriot Soupramaniane ...Petitioner
Vs
Nisha ...Respondent
Revision Petition filed under Article 227 of the Constitution of India
to set aside the order dated 11.12.2018 made in I.A.No.389 of 2018 in
O.S.No.87 of 2018 on the file of the learned III Additional District Judge
(FAC), Puduchery and allow this Civil Revision petition.
For Petitioner : Mr.G.Krishnakumar
For Respondent : Mr.J.Srinivasa Mohan
1/7
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.197 of 2019
ORDER
The revision petition has been filed by the defendant in O.S.No.87 of
2018 pending on the file of the III Additional District Court, Puducherry
questioning the order in I.A.No.389 of 2018 dated 11.12.2018.
2.O.S.No.87 of 2018 had been filed by the respondent/plaintiff,
Nisha, seeking a judgment and decree against the present petitioner Herriot
Soupramaniane for a sum of Rs.18,02,000/- together with interest at the rate
of 24% per annum on the principal sum of Rs.17 lakhs from the date of the
suit till the date of realization and also for costs. In the said suit, in which
written statement has been filed and issues framed, parties had been invited
to tender evidence and the parties have also taken up such opportunity and I
am informed that the plaintiff has also grazed the witness box.
3.The plaintiff had also filed I.A.No.389 of 2018 under Order 38 Rule
5 of Code of Civil Procedure initially calling upon the defendant to furnish
security to the value of the suit claim, failing which, to bring to sale the
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C.R.P.(PD)No.197 of 2019
particular property mentioned in the schedule to the petition. A counter had
been filed.
4.Primarily Mr.G.Krishnakumar drew attention to the averments made
in the counter affidavit to point out that a prima facie case could not have
been drawn by the learned Judge to grant the relief in I.A.No.389 of 2018.
However, the avermnents in the said counter, I am sure are a replica of the
written statement filed by the defendant in the suit. Based on the averments
in the written statement, issues have also been framed and as stated, parties
have taken up the opportunity to adduce evidence.
5.This present revision petition has been filed against the order in
I.A.No.389 of 2018.
6.The learned District Judge while examining the petition averments
and the counter had stated that the defences stated in the counter could be
subject matters to be taken up during trial. However, as a fact had also
found that the present revision petitioner/defendant is a French National and
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C.R.P.(PD)No.197 of 2019
therefore raised an apprehension that there could be a possibility of him
either leaving the shores of the Country or disposing of the property and
weighing those possibilities with the claim of the plaintiff had thought it
appropriate to initially direct the present petitioner to furnish security and
since there was a failure to do so had directed attachment of the property.
7.Mr.G.Krishnakumar, learned counsel for the petitioner stated that
the said order suffers owing to lack of a prima facie finding that the plaintiff
could succeed in the suit. However, there are other conditions also to be
taken into account while deciding an application under Order 38 Rule 5
CPC. There are also conditions which are required to be examined,
particularly, whether there is a possibility of the defendant alienating or
dealing with the property mentioned or whether the defendant may leave the
territorial jurisdiction of the Court making it impossible for execution of a
decree, if at all a decree is passed in the suit. These are all factors to be
considered quite apart from forming an opinion regarding the decision to be
rendered in the suit without going into the merits. Therefore I would not
interfere in the order passed. However, it appears that when the revision
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C.R.P.(PD)No.197 of 2019
petition came up before my learned Predecessor, the learned counsel for the
present petitioner had made an offer to give another property as security
instead of the property mentioned in the schedule to the petition in
I.A.No.389 of 2018. When that was put to Mr.GKrishnakumar, the learned
counsel stated that efforts have been taken to offer as security an alternate
property.
8.At this stage, I hold that we need not wait to such an offer to come
about. Let the order stand as it is. Trial has commenced. Let the trial go
through its normal course. The parties must let in evidence with their free
mind and try to establish their respective stand in the plaint and in the
written statement. Let those statements be tested during cross examination.
Let the learned Judge also apply his/her mind and analyze the evidence on
record and pass a judgment. There are two possibilities, either the suit may
be decreed or the suit may be dismissed. If the suit is decreed, then
naturally the plaintiff would move forward for bring the property for sale to
realize the fruits of the decree. At that stage, liberty is granted to the present
petitioner/defendant in the suit to provide an adequately valued, alternate
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C.R.P.(PD)No.197 of 2019
property to be substituted instead of the property which is now under
attachment. If such a property is offered, naturally the learned Judge may
test its value, test its title and the petitioner may also examine these aspects
and thereupon proceed against such property. I am not for a moment to state
that such a stage would reach. It would all depend on the evidence recorded
and I am confident that the learned Judge who is now examining the
evidence on record would apply an independent mind, analyze the evidence
and come to a conclusion on the issues raised in the suit on the basis of the
evidence adduced and not otherwise.
9.With these observations, the Civil Revision Petition is dismissed.
No order as to costs. Consequently, connected miscellaneous petition is
closed.
08.04.2021
cse
Index:Yes/No
Internet: Yes/No
To
The III Additional District Court, Puducherry
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.197 of 2019
C.V.KARTHIKEYAN, J,
cse
C.R.P.(PD)No.197 of 2019
and C.M.P.No.1598 of 2019
08.04.2021
https://www.mhc.tn.gov.in/judis/
