Madras High Court
G.Senthil Kumar vs G.Murali on 4 January, 2022
C.R.P.(MD)No.2143 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.2143 of 2021
and
C.M.P.(MD) No.11384 of 2021
1.G.Senthil Kumar
2.O.Sendeepan ... Petitioners
-vs-
G.Murali ... Respondent
Prayer :- Petition filed under Article 227 of the Constitution of India, to
set aside the fair and decreetal order dated 08.10.2021 passed in I.A.No.1
of 2019 in O.S.No.62 of 2019 on the file of the learned I Additional
District and Sessions Judge (PCR), Tiruchirappalli.
For Petitioners : Mr.R.Vigneshwaran,
for M/S.U.Nirmalarani
ORDER
The plaintiffs, aggrieved by the order passed by the learned First
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
Additional District and Sessions Judge (PCR), Tiruchirappalli, in
rejecting their petition filed under the provision of Order 38 Rule 5, are
the revision petitioners before this Court.
2.The brief facts, which are necessary for appreciating the issue on
hand, are herein below narrated and the parties are referred to in the same
array before the District Court:-
(i) The plaintiffs had filed the suit O.S.No.62 of 2019 for recovery
of a sum of Rs.11,69,111/- together with interest at 12% per annum from
the defendants. It is their case that the second plaintiff and the
defendants are engaged in the business of cable TV and have had the
long-standing relationship. The second plaintiff in turn had a close
business relationship with M/s.Surya Finance, Thilainagar and had also
referred his friends to the said finance company as and when they had
required finance. The defendants and the second plaintiff had joined
together with other partners and floated a business venture in the name of
M/s.Bharath Digital Vision, which was a limited liabilities partnership.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
(ii)While so, the defendants had approached the second plaintiff
seeking financial assistance for their Cable TV business. The second
plaintiff had facilitated the loan from the said Surya Finance. The
defendants had borrowed a sum of Rs.4,00,000/- on 12.10.2015 agreeing
to repay the same on demand with interest at 24% per annum. At the
time of extending the loan, Surya Finance had urged the second plaintiff
and the defendants to furnish security either in the form of property or by
way of a guarantee by the second plaintiff for the loan. The second
plaintiff had very hesitatingly agreed to act as a guarantor. Thereafter, a
further sum of Rs.4,00,000/- was borrowed by the defendants on
22.04.2016 from the said Surya Finance on the strength of the second
plaintiff's guarantee. The defendants had also agreed to pay the above
sum with interest on demand. The earlier loan of Rs.4, 00,000/- and the
loan borrowed on 22.04.2016 were clubbed together and a promissory
note was executed by the defendants on 22.04.2016 favouring the said
Surya Finance agreeing to repay the total principal sum of Rs.8,00,000/-
with interest. The second plaintiff has signed as a guarantor and witness
for this transaction.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
(iii) It is the case of the plaintiffs that the defendants had failed to
pay the said sum and Surya Finance had started pressuring the second
plaintiff to ensure that the defendants clear the loan. Therefore, the
second plaintiff had taken it upon himself to clear the liability with Surya
Finance. For this purpose, he has requested the first plaintiff to assist
him in discharging the said loan. After the loan was discharged, Surya
Finance had made over the promissory note on 05.01.2018 in favour of
the plaintiffs. The plaintiffs have therefore demanded the money from
the defendants who did not come forward to do so and the plaintiffs also
came to learn that the defendants were attempting to secrete their
properties with a view to defeat and delay their creditors. A legal notice
dated 02.03.2018 was issued by the plaintiffs to the defendants seeking
recovery of the amounts under the promissory note, dated 22.04.2016.
Though the first defendant had received the notice, the one sent to the
second defendant was returned as 'door locked'. The defendants assured
the plaintiffs that they would settle the payment shortly, but however
observed the assurance in a breach. Meanwhile, the arbitration
proceedings were initiated between the partners of the second plaintiff
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
and the defendants. The defendants gave a proposal for settlement on
which the plaintiffs were made to believe. Since the period of limitation
was past approaching, the plaintiffs had proceeded to file the instant suit.
(iv)The defendants have filed the written statement inter alia
denying the very borrowal and contending that they had no nexus with
the said Surya Finance and had neither executed a promissory note nor
borrowed any amount from the said Surya Finance. The defendants
would submit that they had already borrowed a loan from the
Nationalized Bank and there was no necessity for them to borrow from a
private money lender. The defendants would submit that the entire case
of the plaintiffs was false and the plaintiffs, who claim to have settled the
payment to Surya Finance, have not put the defendants on notice about
their proposal to settle the loan to Surya Finance and even after the
payment of the said loan, no notice has been issued to the defendants
which clearly shows that the entire allegations are false. The defendants
would further submit that the second plaintiff is not a partner in
M/s.Bharath Digitial Vision and the allegations to the contrary, are
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
absolutely false and frivolous. The defendants would submit that there
is no cause of action for filing the suit.
(v) Along with the plaint, the plaintiffs had filed I.A.No.1 of 2019
for an attachment before the judgment against the second defendant
alone. The plaintiffs had reiterated their contention in the plaint in a
nutshell and they would submit that the property given by the second
defendant and other partners was likely to be brought for auction under
SARFAESI Act and the bank is likely to proceed against the property of
the defendants, who act as managing partner of the partnership concern
for the amount due to the Bank. The defendants are therefore taking
steps to alienate their property whereby defeating and delaying the claim
of creditors, like the petitioners herein. The plaintiffs would further
submit that the second defendant owns the property, which is detailed in
the schedule of the petition, which had not been encumbered. However,
the second defendant was taking steps to make a fraudulent transfer in
order to escape his liabilities to the creditors. Therefore, the plaintiffs
sought to have the property attached before judgment.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
(vi)The second defendant had filed a counter inter alia once again
denying the very claim of the plaintiffs and further submitting that when
the very execution of the promissory note as well as the receipt of the
amounts, were denied by the defendants, there is no question of their
property being attached before judgment. That apart, the second
defendant has also stated that he had no necessity for alienating any of
his property. The second defendant would submit that the entire suit is
only an attempt to harass the defendants.
(vii) The learned First Additional District and Session Judge,
Tirchy, after hearing the parties and perusing the records filed on both
side, dismissed the said application. The learned Judge had clearly
observed that the respondent had denied the execution of the promissory
note as well as the loan transaction with the said Surya Finance. That
apart, the dispute between the partners was already the subject matter of
reference to an Arbitrator. The plaintiffs had not shown proof about the
likelihood of the second respondent disposing of his property. Therefore,
the learned Judge proceeded to dismiss the application. Challenging the
same, the revision petitioners are before this Court.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
3.Mr.R.Vigneshwaran, learned counsel appearing on behalf of the
petitioners/plaintiffs would vehemently argue that the defendants have
executed two promissory notes, which were later clubbed into in single
one and a fresh promissory note obtained and had also received money
from the said Surya Finance through the good offices of the second
plaintiff. Since the loan was given at the behest of the second plaintiff,
the second plaintiff was morally bound to settle the dues to the said
Surya Finance, which he had done with the financial assistance from the
first plaintiff. He would submit that once borrowing has been proved and
the factum of the properties being encumbered to avoid creditors has
been established, the learned Judge ought not to have dismissed the
application as the schedule property was only an unencumbered property
of the second defendant. If when the suit is decreed, the plaintiffs would
be left with no security for recovering the decree amount. He would
therefore submit that the order of the learned Judge suffers from a grave
irregularity, since the plaintiffs have shown a prima facie case. He would
further argue that there has been no response to the legal notice and
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
therefore, an adverse inference of admission of liability has to be
inferred.
4.Heard the learned counsel appearing for the petitioner and
perused the records.
5.The defendants have denied the execution of the promissory note
as well as the receipt of money from the said Surya Finance. The
plaintiffs have not produced any proof to show passing of consideration
to the defendants. The second plaintiff, who pleaded that he has
executed the guarantee deed in favour of the Surya Finance for the said
loan, has not produced the said document nor has he produced proof of
the repayment of the amount due under the promissory note to the said
Surya Finance. Therefore, the plaintiffs have failed to make out a prima
facie case for grant of an order of attachment before the judgment. The
entire case of the plaintiffs has to be established only during the trial and
after perusing the documents as well as the oral evidence, since the
defendants have come forward with the categoric case of not having
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
borrowed nor executed the promissory note. The cause action itself has to
be first established by the plaintiffs to claim any interim order. Further,
in the counter filed to the impugned petition, the second defendant had
stated that he has no intention to sell the property. This fact has also been
taken note of by the learned District Judge.
6.In these circumstances, I do not find any reason to interfere with
the well considered order of the Court below. Accordingly, this Civil
Revision Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
04.01.2022
Index : Yes/No
Internet : Yes/No
cp
To
The I Additional District and Sessions Judge (PCR),
Tiruchirappalli.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
Note:-
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate /
litigant concerned.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2143 of 2021
P.T.ASHA, J.
cp
C.R.P.(MD)No.2143 of 2021
and
C.M.P.(MD) No.11384 of 2021
Dated: 04.01.2022
_________
https://www.mhc.tn.gov.in/judis
