Madras High Court
S.Ravichandran vs N.Muthukumaran on 4 October, 2021
C.M.A.No.3362 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.12.2021
Pronounced on : 14.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.3362 of 2021
and
C.MP.No.19331 of 2021
S.Ravichandran .. Appellant
Versus
N.Muthukumaran .. Respondent
This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.,
against the order dated 04.10.2021 passed by the learned Principal District
Judge, Tirupur in IA No.434 of 2021 in OS No.371 of 2021.
For Appellant : Mr.P.Sidharthan
For Respondent : Mr.I.Abrar Md Abdullah for Caveator
1/8
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C.M.A.No.3362 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the fair
and decretal order dated 04.10.2021 made in I.A.No.434 of 2021 in
O.S.No.371 of 2021 on the file of Principal District Court, Tirupur.
2. The petitioner herein is the defendant and the respondent is the
plaintiff in a suit in O.S.No.371 of 2021. The said suit has been filed by the
respondent herein, for recovery of a sum of Rs.71,61,675/- along with interest
based on the loan confirmation cum undertaking deed executed by the
petitioner in favour of the respondent having borrowed the loan amount of
Rs.60,00,000/-. Though for the purpose of repayment of loan amount, the
petitioner gave various cheques with different denominations, the same have
been returned by the concerned bank for in-sufficient funds, which prompted
the respondent to file the suit. Along with the suit, the respondent has also
moved an interlocutory application in I.A.No.434 of 2021 under Order
XXXVIII Rule 5 of C.P.C., to direct the petitioner/defendant to furnish the
security for the suit amount, failing which to attach the suit scheduled
property before judgment.
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C.M.A.No.3362 of 2021
3. In the said Interlocutory Application, the respondent/plaintiff
claimed that the petitioner/defendant has failed to repay the loan amount
borrowed by him despite repeated demands and the cheques issued in lieu of
repayment of suit amount were also dis-honoured and that there is every
likelihood of the petitioner/defendant to dispose of the property which stood
in his name with malafide intention to defeat the suit claim.
4. Resisting the Interlocutory Application, the petitioner/defendant
filed a counter statement wherein he simply denied every averment made in
the petition as false and stated that even before filing of the suit by the
respondent herein, the petitioner has settled the petition mentioned property
in favour of his wife Tmt.R.Kokulavani by way of registered settlement deed
dated 06.07.2021. The petitioner has also filed encumbrance certificate to
show that he is no more owner of the petition mentioned property so as to
order the attachment of the same. Therefore, the question that the petitioner is
making attempts to dispose of the subject property does not arise. It is also
stated that due to COVID 19, the petitioner sustained severe loss in business
and he was unable to repay the loans borrowed from his friends and his
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C.M.A.No.3362 of 2021
relatives. But, he is not liable to pay any amount to the respondent.
5. On consideration of the contentions raised by both sides and also the
materials placed on record, the trial Court by order dated 04.10.2021,
allowed the Interlocutory Application and directed the petitioner herein, to
furnish security for the satisfaction of the suit claim and also ordered
impleadment of wife of the petitioner as party defendant in the suit.
Aggrieved by the said order, the petitioner has come forward with the present
appeal.
6. The learned counsel appearing for the petitioner would contend that
when admittedly the petitioner transferred and settled the subject property in
favour of his wife by way of registered settlement deed, the petitioner is no
longer owner of the said property and the trial Court though aware of this
fact, erroneously ordered the application which requires interference of this
Court. The learned counsel would also contend that the respondent/plaintiff
filed a suit on 22.07.2021, while the petitioner/defendant executed the
settlement deed in favour of his wife as early as on 06.07.2021 i.e., prior to
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C.M.A.No.3362 of 2021
the filing of the suit. The learned counsel for the petitioner would also
contend that the suit has been filed by the respondent based on fabricated
undertaking and confirmation letter and also by the documents which were
forged by the respondent. He would point out that the trial Court has erred in
coming to the conclusion that the petitioner has executed the settlement deed
in a hurried manner to defeat the suit claim. He would also contend that
unless the respondent proved the suit claim, he is not entitled for recovery of
the suit amount and for this purpose, there is no need to attach the property
even before the judgment. Therefore, the learned counsel prays for setting
aside the order passed by the Court below.
7. Per contra, the learned counsel appearing for the respondent would
submit that the trial Court after considering the arguments and documents put
forth before it, had rightly passed an order, directing the petitioner to execute
security for the satisfaction of the suit claim and the petitioner wife
Tmt.R.Kokulavani is impleaded as second defendant in this suit which called
for no interference by this Court.
8. The suit filed by the respondent herein is for recovery of money
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C.M.A.No.3362 of 2021
from the petitioner based on cheques, issued by the petitioner which was
dishonoured by the bank as insufficient funds. Admittedly, the respondent
issued a legal notice on 19.04.2021 and reply notice was sent by the
petitioner on 30.04.2021. The trial Court has also observed in its order about
the notice sent by Whatsapp and e-mail to the petitioner. It is quite obvious
that the petitioner after having come to know about the action being taken by
the respondent to recover the suit claim with a dishonest intention and to
defraud the claim of the respondent, settled the petition mentioned property in
favour of his wife on 06.07.2021.
9. The trial Court has also rightly observed that if the petitioner herein
is allowed to take the plea that the property has been settled in favour of his
wife, the respondent herein cannot make a claim against the petitioner and it
would frustrate the very object of the provisions of the law. It would be
different case if it is the case of the petitioner that he had settled the property
very long back prior to the issuance of legal notice by the respondent. But
the petitioner after receiving the legal notice from the respondent, had settled
the petition mentioned property in favour of his wife which proves the clear
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C.M.A.No.3362 of 2021
intention of the petitioner to defraud the claim of the respondent.
10. Therefore, this Court is of the considered opinion that the trial
Court on considering the facts and circumstances, had rightly invoked
Section 151 of C.P.C., and by following the guidelines of the Supreme
Court, directed the petitioner to execute the bond for the suit claim and
impleaded the wife of the petitioner viz., Tmt.R.Kokulavani as 2nd defendant
in the suit.
11. In view of the discussions made above, this Court does not find any
infirmity or irregularity in the order of the trial Court. Hence, this Civil
Miscellaneous Appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
14.02.2022
vum
Index : Yes / No
Speaking Order / Non Speaking Order
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C.M.A.No.3362 of 2021
S.KANNAMMAL, J.
vum
To
1.The Principal District Judge,
Tirupur.
2.The Section Officer,
V.R.Section,
High Court, Madras.
Pre-delivery judgment in
C.M.A.No.3362 of 2021
14.02.2022
https://www.mhc.tn.gov.in/judis
