Madras High Court
N.Dhanikachalam vs R.P.Mohan on 7 December, 2023
Author: N.Seshasayee
Bench: N.Seshasayee
CMA.No.2239 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2023
CORAM: JUSTICE N.SESHASAYEE
CMA.No.2239 of 2023
& CMP.No.21487 of 2023
1.N.Dhanikachalam
2.N.Dasarah
3.K.K.Srinivasan
4.N.Prabakaran ... Appellants
-Vs-
1.R.P.Mohan
2.Gunavathi ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Order XLIII Rule 1(g) of
the Code of Civil Procedure, against the order and decreetal order in
I.A.No.2 of 2023 in O.S.No.26 of 2023, dated 21.07.2023 on the file of
the Additional District Judge, Krishnagiri.
For Appellants : Mr.C.Jagadish
For Respondents : Mr.S.Thanka Sivan
JUDGMENT
The appellants herein are the plaintiffs in O.S.No.26 of 2023 on the file
of the Additional District Court, Krishnagiri. The suit is laid for recovery
of about Rs.4.26 Crores along with future interest. According to the
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plaintiffs, they entered into a sale agreement dated 02.07.2019 with the
defendants for purchase of certain immovable property for a total sale
consideration of Rs.6 Crores. Towards payment of the sale consideration,
the plaintiff had paid a sum of Rs.3 Crores as advance/part payment. The
property proposed to be purchased by the plaintiffs however, was
outstanding on a mortgage with a certain nationalized bank and it was
brought to sale by the bank. Taken aback by this development, the
appellants chose to participate in the auction sale and purchased the
property and paid the bank of the liability which the defendants owed.
2.In view of this development, the plaintiffs/agreement holder had laid
the suit for recovery of the advance amount with interest. It is in this
setting, the appellants have taken out I.A.No.2 of 2023 for an interim
attachment of properties before Judgment under Order 38 Rule 5 and 6 of
CPC. There are several properties listed in this petition and the
defendants had offered B schedule property as security. Accepting the
same, the trial Court has closed I.A.No.2 of 2023. This order is under
challenge.
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3.The learned counsel for the appellants/plaintiffs submitted that the trial
Court went wrong in accepting the entire B schedule property as security
for payment of any decreetal sum in the eventuality of the appellants
succeeding in the suit. While, there is nothing wrong in the trial Court
accepting the B Schedule property as security, it ought to have
ascertained the value of the property, at least approximately, to satisfy
itself that the properties in B schedule would be adequate enough to
discharge a potential liability which the defendants/respondents face.
This apart, the defendants have not even deposited the original title deeds
to create the security and the trial Court has only acted on the memo
submitted by the defendants/respondents. To support his submission, the
learned counsel for the appellants submitted the guideline value of the
properties in A and B schedule.
4.Per contra, the learned counsel for the respondent/defendants submitted
that the guideline value is far less than the market value and the trial
Court has proceeded to accept the B schedule property as security for
discharging any decreetal liability. Indeed, B schedule property has an
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total extent of 21 acres, wherein stands a building worth more than
Rs.1 Crore.
5.The rival submissions are carefully appreciated and the impugned order
too was perused.
6.It would have been appreciable if the trial Court even as it accepted the
security, had also engaged in ascertaining whether its value will construe
an adequate security for payment of any sum in the eventuality of the
plaintiffs succeeding in the suit. Here, both the parties shared a
difference, in that while the appellants/plaintiffs rely on the guideline
value, the defendants rely on the market value. Order 38 Rule 5 CPC
envisages that the Court can attach only so much property as would be
sufficient to satisfy a possible decree. Therefore, valuing the properties
sought to be attached, at least approximately is indispensable, especially
when there are multiple properties which are sought to be attached.
7.This Court therefore, sets aside the order passed by the trial Court in
IA.No.2 of 2023 in O.S.No.26 of 2023 and remands the matter back to
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the trial Court. The trial Court is required to decide the issue on or
before 31.01.2024. In the meantime, till the Court takes a finding on that,
the defendants/respondents are directed not to alienate the B schedule
property without the knowledge of the Court.
8.Accordingly, the Civil Miscellaneous Appeal is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
07.12.2023
Tsg
Note: Issue order copy on 08.12.2023.
To
1.The Additional District Court,
Krishnagiri.
2.The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
N.SESHASAYEE, J.,
Tsg
07.12.2023
https://www.mhc.tn.gov.in/judis
