Madras High Court
P.A.Aswin Kumaar vs Mrs. C.R.Kasthuri on 10 March, 2021
O.S.A. No. 276 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A. No. 276 of 2020
and
C.M.P. No. 13527 of 2020
P.A.Aswin Kumaar ... Appellant
Vs
1. Mrs. C.R.Kasthuri
2. Mrs. Sarayou Basant
3. Mrs. Saaru Roopa
4. Ms. Hema Roopa
5. Mr. S.P.Sanjai
6. Mr. J.M.H.Imran Khan ... Respondents
PRAYER:- Original Side Appeal filed under Order XXXVI Rule 9 of the Madras
High Court Original Side Rules and Order 41 Section 96 of the Civil Procedure
Code read with Clause 15 of the Letters Patent, praying to set aside the fair order
1/7
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O.S.A. No. 276 of 2020
and decreetal order passed in O.A. No. 1058 of 2019 in C.S. No. 256 of 2019 dated
23.07.2020 and grant the order of injunction as prayed for therein.
For Appellant : Mr. Perumbulavil Radhakrishnan
For Respondents : Ms. Sriranjani for R1 to R4
Ms. J.Vennila for M/s. S.Syed Basha for R6
JUDGMENT
(Judgment of the court was made by N.KIRUBAKARAN.J.,)
The matter was heard through "Video Conference".
2. The Appeal has been filed against the dismissal of the application in O.A.
No. 1058 of 2019 in C.S. No. 256 of 2019 seeking interim injunction restraining the
Sixth Respondent from alienating, encumbering, transferring or disposing the B
Schedule Property.
3. Heard Mr. Perumbulavil Radhakrishnan, Learned Counsel for the
Appellant, Ms. Sriranjani, Learned Counsel for the First to Fourth Respondents and
Ms. J.Vennila, Learned Counsel for the Sixth Respondent.
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O.S.A. No. 276 of 2020
4. It is evident from the records that the Appellant filed a suit in C.S. No. 256
of 2019 for recovery of money and to declare that the sale deed dated 03.05.2017 as
null and void. The Appellant extended loan to the First to Fourth Respondents for
redeeming the mortgaged property from Bank to save the property from the DRT
proceedings initiated by Bank. The financial assistance was to the tune of
Rs.1,00,00,000/- regarding which a memorandum of understanding dated
25.09.2015 was signed by the parties. For giving Rs.1,00,00,000/- alone, the First
to Fourth Respondents sought loan at a shorter notice from the Appellant. Utilizing
the money lent by the Appellant, the First to Fourth Respondents redeemed the
properties and have also got back the original title deeds. Thereafter, the First to
Fourth Respondents failed to pay the amount as per the memorandum of
understanding dated 25.09.2015. Though they agreed to settle the above loan along
with profit which worked out to a sum of Rs.1,50,00,000/- on or before 30.04.2016
or to transfer an area of 2400 sq.ft., described in the B Schedule Property, they
failed to honour the said agreement and appointed the Fifth Respondent as the
Power of Attorney to deal with the property and the said property was sold to the
Sixth Respondent despite the notice issued by the Appellant to the First to Fourth
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O.S.A. No. 276 of 2020
Respondents on 20.11.2018 calling upon the First to Fourth Respondents to pay the
amount.
5. In the above circumstances, the said suit has been filed. In the said suit,
application in O.A. No. 1058 of 2019 had been taken out to restrain the Sixth
Respondent from alienating, encumbering, transferring or disposing of the B
Schedule Property. The said application was dismissed on the ground that the Sixth
Respondent had become owner of the property as the property was already sold
even before the filing of the suit and if interim injuction was granted, it would
cause grave harship to the owner of the property. Therefore, considering the
balance of convenience, the application filed for granting interim injunction was
dismissed against which the present Appeal has been filed.
6. This Court finds no merits in the Appeal. The First to Fourth Respondents
have already sold the property to the Sixth Respondent even before initiation of the
proceedings. Therefore, unnecessarily the purchaser, who is the Sixth Respondent
cannot be put to hardship. However, it is made clear that in order to avoid
multiplicity of proceedings, neither the Appellant nor the Respondents shall
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O.S.A. No. 276 of 2020
alienate or create any form of encumbrance or third party interest or part with
possession or make transaction of any kind in respect of the B Schedule Property
without the prior permission of this Court in view of Section 52 of the Transfer of
Property Act, 1882.
7. The Fifth Respondent who is the Power of Attorney holder of the First to
Fourth Respondents is said to have died. However, the presence of the Fifth
Respondent at this stage is not necessary as he is only the Power of Attorney holder
of the First to Fourth Respondents, who are contesting the suit. In any event, the
Appellant/Plaintiff has to bring the legal heirs of the deceased Fifth Respondent on
record in the suit within a period of two weeks from the date of receipt of a copy of
this order. Since it is submitted that all the parties including the Fifth Respondent
have filed written statements and issues have been framed, it is appropriate for the
matter to be placed before concerned Learned Master. In order to expedite disposal,
it shall be ensured that there is atleast one effective hearing every week showing
progress of the case. All the parties are directed to co-operate for the disposal of the
suit.
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O.S.A. No. 276 of 2020
8. With the above observation, this Original Side Appeal is disposed of. No
costs. Consequently, the connected Miscellaneous Petition is closed.
(N.K.K., J.) (P.D.A., J.)
10.03.2021
ay/Maya
Index: Yes/No
Internet: Yes/No
To
The Sub Assistant Registrar,
Original Side Section,
High Court of Madras,
Chennai - 600 104.
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O.S.A. No. 276 of 2020
N.KIRUBAKARAN, J.
AND
P.D.AUDIKESAVALU, J.
ay
O.S.A. No. 276 of 2020
Dated:10.03.2021
https://www.mhc.tn.gov.in/judis/
