Madras High Court
R.Krishnamurthy vs S.Sangeetha on 9 December, 2021
O.S.A.No.327 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
O.S.A.No.327 of 2021
and C.M.P.No. 19858 of 2021
1.R.Krishnamurthy
2.Thirugnanaselvi
3.Aswini Krishnamurthy ..Appellants
Vs
1.S.Sangeetha
2.S.Subathra
3.Axis Bank,
Virugambakkam Branch,
Rep. By its Manager,
No. 2/8, 1st Floor, 1st Cross Street,
Lampert Nagar, Virugambakkam,
Chennai – 600 092. .. Respondents
Appeal preferred under Order XXXVI Rule 1 of C.P.C. read with
Clause 15 of the Letters Patent against the order and decree dated
31.08.2021 in Application No.1178 of 2021 in C.S.No. 106 of 2021.
For Appellants : Mr.S.Ravi
For Respondents : Mr.K.Gowthamkumar
for R1 and R2
Page 1 of 10
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O.S.A.No.327 of 2021
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
This appeal arises from the order passed by learned Single Judge
dated 31 August 2021 in A.No.1178 of 2021 in C.S.No.106 of 2021.
2. We have heard learned advocate for the appellants (original
defendant Nos. 1 to 3) and learned advocate for respondents (original
plaintiffs).
3. Learned advocate for the appellants has submitted that
directions given by learned Single Judge on an interim application are
erroneous on more than one count, since the relief sought in the main
suit and in the interim application were essentially identical. The
pleadings in both were also the same. Issues are not framed and the
burden to disprove the case of the plaintiffs was shifted to the
defendants which led to the impugned order. Learned advocate for the
appellants has extensively taken this Court through the plaint, interim
application on which the impugned order is passed and the reasons
recorded in the impugned order and has submitted that what could not
be done even after full fledged trial is ordered by the impugned order.
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O.S.A.No.327 of 2021
Attention of the Court is invited to serious disputes between the
plaintiffs and defendants who are close family members (two branches
of one tree), the period of the transaction which is the basis in the suit,
other disputes / litigations between these two branches and has
submitted that the impugned order be interfered with.
4. Learned advocate for both the plaintiffs has vehemently
opposed this appeal. It is submitted that the material produced by the
plaintiffs are considered by learned Single Judge, which was sufficient
to arrive at the conclusion that the defendants were under obligation
to pay the amount ordered by the impugned order and in any case
that amount was required to be secured which is done by the
impugned order. It is submitted that 'note' is also referred to in the
impugned order, in which complete details were given by the plaintiffs.
It is submitted that no interference be made by this Court. It is
submitted that this appeal be dismissed.
5. Having heard learned advocates for contesting parties and
having considered the material on record, this Court finds as under:-
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O.S.A.No.327 of 2021
5.1 The cause of action as pleaded in the plaint and the relief
sought read as under:-
“48. The cause of action for the present suit arose within the
jurisdiction of this Court when the husband of the 1st plaintiff
died on 15.11.2012 leaving behind the 1st plaintiff and 3
daughters (including the 2nd plaintiff as legal heirs), when the 1st
plaintiff was inducted into partnership firm M/s.V.Rangasamy
& Co. on 18.01.2013 and benefits were given to her to secure
her financial needs, when the plaintiffs entrusted the 1st
defendant with the cheque book of their bank accounts after the
demise of the 1st plaintiff's husband on the bona fide belief that
the 1st defendant would look after their financial needs, when
the firm was acquired by the Company incorporated on
01.04.2013 where the 1st defendant was a director, when the 1st
plaintiff was made a director of the company on 31.07.2017 to
secure her financial needs, when certain patent irregularities
were discovered in the running of the company on February
2018 where the 1st defendant had forged the signature of the 1st
plaintiff to take over the control of the current account of the
company and fraudulently transferred 80,000 shares belonging
to the 1st plaintiff in favour of the 2nd defendant on 25.03.2017,
when the defendants had illegally siphoned off funds from the
company to purchase properties in his own name, when the 1st
and 2nd defendant undertook to rectify such transfer and
believing their words, a Family Agreement Deed was entered
into on 22.06.2018, when subsequent to the entering of the said
deed, the 1st plaintiff unearthed various illegal transfers/
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O.S.A.No.327 of 2021
withdrawals from the plaintiffs' bank accounts by the defendants
from 2013-2016 to purchase properties in their name, when the
defendants threatened the plaintiffs' family with dire
consequences when questioned on their illegal activities, when
the 1st plaintiff filed a police complaint dated 07.02.2019 against
his threats, when on 06.03.2019 the 1st defendant in writing,
admitted his liabilities towards the plaintiffs and agreed to
satisfy all the dues to the plaintiffs based on which the police
complaint dated 07.02.2019 was withdrawn by the 1st plaintiff,
when the defendants failed to mend their ways and continued to
issue threats to the plaintiffs, when on 25.11.2019 the 1st
plaintiff preferred a police complaint against the 1st defendant,
when the 1st defendant failed to repay the amount due of
Rs.2,87,88,703.40/- till January 2021 and return 550 gms of
gold worth Rs.28,18,750/- to the plaintiffs even after receiving
legal notice from the 1st plaintiff. The legal notice continues
even as on date and hence the suit.”
x x x
“(a) to direct the defendants to pay a sum of Rs.2,87,88,703.40/-
being the monies illegally withdrawn by the defendants to the
plaintiffs, towards amount due from Insurance Policies, Fixed
Deposits and amounts withdrawn, from the Bank Accounts of
the plaintiffs;
(b) to direct the defendants to return the 550 Gm. of Gold being
the first plaintiff's husband's share of Gold in Locker No.U13/7
with Axis Bank, Virugambakkam Branch, Chennai, valued at
Rs.28,18,750/- or in the alternative, pay the amount of
Rs.28,18,750/- being the amount equivalent to the 550 gms. of
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O.S.A.No.327 of 2021
Gold deposited in Locker No.U13/7 with Axis Bank,
Virugambakkam Branch, Chennai to the plaintiffs;
(c) to direct the defendants to pay an interest at 18% p.a. to the
plaintiffs on Rs.1,25,77,251/- being the principal amount
illegally withdrawn from the Bank Accounts of the plaintiffs
from the date of filing of the suit till the date of its actual
realisation, and
(d) to direct the defendants to pay the costs of the present suit.”
5.2 In substance, the grievance voiced in the suit and the reliefs
sought are as noted above. The date of filing of the suit is 22 February
2021. Along with the plaint, interim application was also filed being
A.No.1178 of 2021. The relief sought in the application was as under:
“Application No.1178 of 2021 in C.S.No.106 of 2021 filed and
Judge's Summons issued under Order XIV Rule 8 of the Madras
High Court Original Side Rules, read with Order XXXVIII
Rules 1, 2, 5 and 6, read with Section 115 Code of Civil
Procedure (CPC), praying to direct the respondents/defendants
to furnish security for a value of Rs.2,87,88,703.40,failing
which orders may be granted for Attachment Before Judgment
of the properties, morefully described in the Schedules herein in
the Judge's Summons.”
5.3 The directions in the impugned order read as under:-
“71. There shall be a direction to the respondents
1 to 3 / defendatns 1 to 3 to furnish security for a
value of Rs.2,87,88,703.40 (Rupees Two Crores
Eighty Seven Lakhs Eighty Eight Thousand Seven
Hundred and Three and forty paise only), on or
before 01.10.2021.”
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O.S.A.No.327 of 2021
5.4 The conjoint consideration of the relief sought in the suit,
relief prayed in the form of interim application and the direction given
by learned Single Judge leaves no room to hold that the direction
which could have given against the defendants finally, in substance are
given at this stage, not in the form of direction to pay to the plaintiffs
but in the form of providing security to that effect. We find that giving
any direction in interim application in favour of the plaintiffs can
certainly be done, when the plaintiffs can be said to have strong prima
facie case, if the balance of convenience is in favour of the plaintiffs
and further if non-grant of interim relief is likely to cause irreparable
loss to the plaintiffs. We find that, whether plaintiffs, on the basis of
the pleadings can be said to have made prima facie case or not itself is
an issue coupled with the fact that the suit being barred by limitation is
one of the ground raised in appeal, however since the suit is large
open, we do not express any opinion in that regard. However, so far
rest of the two conditions are concerned, we do not find that in the
facts like this, balance of convenience can be said to be in favour of
the plaintiffs. This is coupled with the reasons recorded in the
impugned order, which in substance are holding various things against
the defendants, even though no issues are even framed so far. The
documents which are attempted to be relied by learned advocate for
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O.S.A.No.327 of 2021
the plaintiffs, reference to which is also made in the impugned order
are not exhibited documents. Whether these documents can be said
to have been legally placed on record or not, is also an aspect, which
may be addressed in the trial.
5.5 In totality, we find that not only the plaintiffs were not
entitled to any interim relief in their favour during pendency of the
trial, the impugned order according to us is without any evidence
which can be taken into consideration legally. The impugned order is
also, inter alia based on the failure on the part of the defendants to
discharge their obligation to disprove the case of the plaintiffs.
According to us, this could not have been done. No relief can be
granted to the plaintiffs in these facts and with these considerations.
The impugned order therefore is unsustainable and the same needs to
be quashed and set aside.
6. In view of above, the following order is passed.
6.1 This appeal is allowed.
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O.S.A.No.327 of 2021
6.2 The impugned order dated 31 August 2021 in A.No.1178 of
2021 in C.S.No.106 of 2021 is quashed and set aside.
6.3 Liberty is reserved to the plaintiffs to move appropriate
application for taking up the suit for early disposal, with further
direction to the defendants (present appellants) to cooperate in the
trial for expeditious disposal of the suit.
6.4 No costs. Consequently, connected miscellaneous petition is
closed.
(P.U., J) (S.S.K., J)
09.12.2021
Index:Yes/No
ssm/2
To
The Sub Assistant Registrar,
Original Side,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
O.S.A.No.327 of 2021
PARESH UPADHYAY, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
ssm
O.S.A.No.327 of 2021
09.12.2021
https://www.mhc.tn.gov.in/judis
