S.K. Vatsala Cumari vs K. Kumaravel
2022 Latest Caselaw 15504 Mad

                                                                   1          CRP.(PD) No.4313 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 19.09.2022

                                                         CORAM:

                                  THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI

                                             C.R.P. (PD) No. 4313 of 2017
                                        and C.M.P. No.20269 and 21097 of 2017



                    S.K. Vatsala Cumari                                                 .... Petitioner

                                                          Versus

                    K. Kumaravel                                                      ....Respondent



                    Prayer:Civil Revision Petition is filed under Article 227 of the

                    Constitution of India, to set aside the fair and decreetal order dated

                    04.09.2017 made in I.A.No.43 of 2017 in O.S.No.75 of 2017 on the file

                    of the IInd Additional Subordinate Court, Salem.


                                    For Petitioner                     : Mr. C. Prabakaran
                                    For Respondent                     : Mr. D. Shivakumaran
                                                           -----




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                                                                   2        CRP.(PD) No.4313 of 2017

                                                        ORDER

This Civil Revision Petition has been filed by the petitioner seeking

to set aside the fair and decreetal order dated 04.09.2017 made in

I.A.No.43 of 2017 in O.S.No.75 of 2017 on the file of the IInd Additional

Subordinate Court, Salem.

2. The petitioner herein is the defendant and the respondent herein is

the plaintiff in the Original suit.

3. For the sake of convenience, the parties are referred to as per the

rank cited in the Court below.

4. The case of the petitioner is that the suit for recovery of money in

O.S. No.75 of 2017 was filed by the plaintiff/respondent herein against the

defendant/petitioner herein. During the pendency of the suit proceedings,

the plaintiff has filed I.A.No.43 of 2017 under order 38 rule 5 of CPC for

attachment of schedule mentioned property before Judgment against the

defendant. After hearing both sides, the Trial Court allowed the said

application by its order dated 04.09.2014 on condition directing the

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defendant/petitioner herein to furnish the security for suit claim amount.

Being not satisfied with the aforesaid order, the defendant/petitioner

herein has filed the present Civil Revision Petition to set aside the same.

5. The learned counsel for the petitioner would submit that there is

no legal enforceable debt between the plaintiff/respondent herein and the

defendant/petitioner herein, the cheque was issued only as a security for

chit transaction. While being so, during the pendency of the suit

proceedings, the plaintiff has filed I.A. No.43 of 2017 in O.S. No.75 of

2017 for attachment of the property of the defendant for the suit claim.

The defendant/petitioner herein has given undertaking affidavit to the

effect that she never alienate the property to 3rd party and ready to defend

the suit. After giving such undertaking affidavit, while there is no

apprehension established by the plaintiff/respondent herein, the Trial

Court has directed the defendant to furnish the security for the suit claim is

not sustainable and liable to be dismissed. To support of his contention,

the learned counsel for the petitioner has placed reliance of the Judgment

dated 04.06.2021 passed by this Court in C.R.P.(PD) (MD) No.825 of

2021. The Trial Court without appreciating the aforesaid factual aspect,

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allowed the application on condition directing the defendant/petitioner

herein to furnish the security for suit claim amount even after filing

undertaking affidavit before the Trial Court. Hence, the order dated

04.09.2017 in I.A. No.43 of 2017 in O.S. No.75 of 2017 passed by the

Trial Judge is liable to be set aside.

6. Per contra, the learned counsel for the respondent would submit

that mere undertaking is not sufficient since the defendant/petitioner

herein has intended to alienate the property to 3rd party. The same will not

tantamount to attachment of the property while the application has been

filed under order 38 rule 5 of CPC. If the property has been sold out to the

3rd party, the plaintiff/respondent herein would be put to irreparable loss.

Hence, the Trial Judge has rightly allowed the application directing the

defendant/petitioner herein to furnish the security for suit claim. Hence,

the Civil Revision Petition is liable to be dismissed.

7. Heard the learned counsel for the petitioner and the learned

counsel for the respondent as well as perused the materials available on

record.

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8. On a perusal of the records, the plaintiff filed the suit for recovery

of money against the defendant pursuant to the proceedings in STC

No.909 of 2015 on the file of the Judicial Magistrate No.III, Salem under

Section 138 of N.I. Act since the defendant attempted to alienate her

property to 3rd party, such circumstances, the plaintiff filed the I.A. No.43

of 2017 in O.S. No.75 of 2017 seeking for attachment of schedule

mentioned property before Judgment. After perusing the oral and

documentary evidence, the Trial Court considered that undertaking

affidavit is not sufficient to justify the claim of the petitioner in petition

under order 38 rule 5 of CPC filed by the plaintiff/respondent herein relied

on the Judgment of this Court in the case of K. Venkatesan Vs. A.

Shanmuga Sundaram reported in 2017(3) Law Weekly page 545 hence,

directed the defendant to furnish the security for the suit claim on

condition. However, the defendant has not complied the same till now

even after nearly 5 years. More undertaking affidavit given by the parties

could not be incorporated in the encumbrance through the Registrar and

the object of the Order 38 rule 5 would be defeated. Thus, the Court below

is right in not satisfied with the undertaking affidavit. Hence, this Court

is not inclined to interfere with the order dated 04.09.2017 passed by the

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Trial Court and hence, the Civil Revision petition is liable to be dismissed

and accordingly it is dismissed. However, considering age of the petitioner

who is 70 years old lady and submissions of the learned counsel for both

parties, this Court is inclined to refer the matter before the Mediation

Centre, Salem for amicable settlement between the parties. Hence, the

parties are hereby directed to appear before the Mediation Centre, Salem,

on 28.09.2022 along with their respective counsel and after mediation, the

Trial Court shall take up the matter for appropriate disposal on merit.

9. With the aforesaid directions, the Civil Revision Petition is

disposed of. Consequently, connected miscellaneous petition is closed if

any. No costs.

19.09.2022

Lbm Index : Yes/No Speaking Order : Yes/No

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To:

1. The IInd Additional Subordinate Court, Salem.

2. The Section Officer, V.R.Section High Court, Madras.

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T.V.THAMILSELVI, J.

Lbm

C.R.P. (PD) No. 4313 of 2017 and C.M.P. No.20269 and 21097 of 2017

19.09.2022

https://www.mhc.tn.gov.in/judis