Madras High Court
N.Jayachandran vs Venkat Raman on 2 July, 2021
O.S.A.No.240 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
O.S.A.No.240 of 2021
1.N.Jayachandran
2.Nilakantan & Brothers Construction Pvt Ltd.,
No.2, 1st Floor, Gokul Towers,
No.7, C.P.Ramaswamy Road,
Chennai - 600 018.
3.Nilakantan & Sons Pvt. Ltd.,
No.2, 1st Floor, Gokul Towers,
No.7, C.P.Ramaswamy Road,
Chennai - 600 018. .. Appellants
Vs
1.Venkat Raman
2.Indian Overseas Bank
763, Anna alai,
Chennai - 600 002,
Mylapore Branch at 177,
Luz Church Road,
Chennai - 600 004. .. Respondents
Appeal filed under Order XXXVI Rule 1 of O.S.Rules and Clause
15 of the Letters Patent against the order dated 26.04.2018 made in
A.No.1089 of 2016 in C.S.No.912 of 2016.
Page 1 of 7
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O.S.A.No.240 of 2021
For Appellants : Mr.T.R.Rajagopalan, Senior Counsel
for Ms.P.Veena Suresh
For Respondents : Mr.Ramakrishnan, Senior Counsel
for Mr.C.Seethapathy for R1
No appearance for R2
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
By consent, the appeal itself is taken up for hearing.
2. The appellants are defendants 1, 7 and 8 in the suit. Two
applications came up for consideration in a suit for partition filed by the
first respondent for condonation of delay in filing the written statement
belatedly and for making an order of injunction absolute.
3. The first respondent/plaintiff filed a suit for partition in which
he sought for an order of injunction against the proposed alienation
along with encumbrance. The appellants filed an application for
condonation of delay. Both the applications have been taken up for
hearing and allowed by the learned single Judge. However, reference
has been made albeit wrongly to the effect that the appellants being
the respondents in the application filed by the first respondent before
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O.S.A.No.240 of 2021
us, were not represented. Accordingly, both the applications were
allowed at the same time.
4. According to the appellants, the factum of making an order of
injunction absolute and allowing it was not known to them and by way
of enquiry, it came to their knowledge subsequently through their
lawyer. The order of the learned single Judge requires to be interfered
with since the applications were heard at the same time and the
counter affidavit has also been filed. There is no delay actually since it
was only found out subsequently about the order passed. As the delay
has to be reckoned from the date of the knowledge, the same has to
be condoned and the appeal will have to be allowed.
5. Learned Senior Counsel appearing for the first respondent,
while acknowledging the fact that both the applications were heard
simultaneously, submitted that the order has been passed by hearing
the counsel. It is further submitted that the case is at the trial stage
and therefore, no interference is required. Learned Senior Counsel
appearing for the first respondent would also fairly submit that the
order of injunction will have to be seen contextually with respect to the
proposed encumbrance or alienation by the appellants.
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O.S.A.No.240 of 2021
6. By way of reply, learned Senior Counsel appearing for the
appellants submitted that the difficulty would arise for renewing the
mortgage by the company. If the mortgage is not renewed, then the
company would have a serious financial difficulty. In such view of the
matter, the order requires interference.
7. We have heard the learned Senior Counsel for the parties both
on the question of condonation of delay and on merits as agreed upon.
8. On the question of delay, we find considerable force in the
submission made by the learned Senior Counsel for the appellants. The
delay would arise only from the date of knowledge. The learned
counsel for the appellants did argue the application filed for
condonation of delay in filing the written statement. It is an admitted
fact that both the applications have been heard together and orders
have been passed. Therefore, the order of the learned single Judge
recording that the respondents in the application for injunction were
not present is factually incorrect. The counter affidavit has been filed
by the appellants being the respondents in the application filed by the
first respondent before us.
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O.S.A.No.240 of 2021
9. Inasmuch as arguments have been made on merit, we have
condoned the delay and heard the matter accordingly. The first
respondent being the plaintiff is dominus litus. It is his case that the
properties are available for partition. The question as to whether all
the properties mentioned in the schedule given in the plaint are
required to be partitioned or not is a matter to be decided in the suit.
Now, the suit has reached the trial stage. The examination of the
witnesses has begun. Therefore, at this stage, remitting the matter for
fresh consideration before the learned Single Judge would further
delay the suit, which has been filed in the year 2016.
10. In such view of the matter, we are of the view that interest
of both sides would be best served by either clarifying or modifying the
order of the learned Single Judge. Now, certain properties have been
mortgaged by the Company even prior to the order passed by the
learned Single Judge. The said mortgages entered into are in force
now. They have to be renewed. Therefore, in the interest of all the
parties, those mortgages will have to be either on the same terms
without permitting enhancement of the mortgage amount and also
seeking additional amount. Therefore, with the clarification that the
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O.S.A.No.240 of 2021
mortgages can be renewed for the existing liability, we would like to
make the order of injunction absolute to that extent. For the sake of
clarity, we further clarify that the injunction on other aspects would
continue which would also mean that the parties before the
proceedings shall not create any further alienation or encumbrance
pending disposal of the suit.
11. The Original Side Appeal stands disposed of accordingly. No
costs. We request the learned Single Judge to expedite the trial and
made an endeavour to dispose of the suit within a period of four
months.
(M.M.S., J.) (R.N.M., J.)
02.07.2021
Index:Yes/No
mmi/ssm
To
The Sub-Assistant Registrar,
Original Side,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
O.S.A.No.240 of 2021
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
O.S.A.No.240 of 2021
02.07.2021
https://www.mhc.tn.gov.in/judis/
