A.Kathirvel vs P.Balasubramaniam
2023 Latest Caselaw 5981 Mad

                                                                                     C.R.P.No.3353 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 12.06.2023

                                         CORAM : JUSTICE N.SESHASAYEE

                                               C.R.P.No.3353 of 2019
                                             and CMP.No.21803 of 2019


                     A.Kathirvel                              .. Petitioner /Petitioner / Plaintiff


                                                            Vs


                     P.Balasubramaniam                      .. Respondent / Respondent /Defendant

                     Prayer : Civil Revision Petition filed under Article 227 of the Constitution
                     of India praying to set aside the fair and final order dated 09.01.2019 made
                     in I.A.no.1247 of 2017 in O.S.No.249 of 2017 on the file of II Additional
                     District and Sessions Court, Tiruppur.


                                    For Petitioner      : Mr.K.S.Karthik Raja
                                    For Respondent      : Mr.S.S.Swaminathan


                                                         ORDER

The plaintiff who has lost his application filed under Order XXXVIII Rule 5

CPC for attaching the property of the defendant before the judgment, has

come forward with this revision.

https://www.mhc.tn.gov.in/judis C.R.P.No.3353 of 2019

2. The property sought to be attached admittedly belonged to the defendant /

respondent. Sometime in September 2016, the defendant approached the

plaintiff for sale of his property for a sale consideration of Rs.3.0 crores.

Out of which, the defendant had received Rs.35.50 lakhs as advance from

the plaintiff. Thereafter, on 12.01.2017, an unregistered sale agreement was

entered into between the plaintiff and the defendant. The sale agreement

provides certain terms regarding the time for performance, and finally for the

reasons best known to the plaintiff, he chose not to enforce the sale

agreement, which is not very germane for the present, instead he laid a suit

for recovery of advance amount of Rs.35.50 lakhs along with interest. It is

in this circumstances, the plaintiff took out an application under Order 38

Rule 5, which as already indicated, came to be dismissed.

3. Heard both sides. While the learned counsel for the plaintiff submitted

that what plaintiff had apprehended earlier indeed had happened during the

pendency of the CRP, in that the defendant had sold the property to a third

party. The counsel for the respondent would submit that the property in

question was outstanding on a mortgage with M/s.Karur Vysya Bank,

Tiruppur, and to discharge the loan, the plaintiff had advanced some

https://www.mhc.tn.gov.in/judis C.R.P.No.3353 of 2019

amount, which was later converted into an advance amount for the sale

agreement. Indeed the sale agreement was entered into essentially to

discharge his debt liability, but the plaintiff had committed breach of the

contract, and the sale agreement provides for forfeiture of the advance

amount in case of unilateral breach by the plaintiff.

4. In response, the counsel for the plaintiff would submit that there is a

construction available in the property in question, for which permission for

construction was found to have been obtained only for a portion, and not for

the whole, and since it posed a potential threat to the plaintiff's title over the

building in the eventuality of he purchasing the property, he could not go

ahead with the purchase, and this fact has been communicated to the

defendant.

5. The submission on either side in effect deviates far away from the criteria

required for passing an order under Order 38 Rule 5 CPC. Indeed, today

this Court may not pass an order, since the plaintiff himself concedes the

property had been sold. The plaintiff is therefore only required to work out

his remedy before the trial Court where the suit is pending. And given the

https://www.mhc.tn.gov.in/judis C.R.P.No.3353 of 2019

nature of defence, the petitioner/plaintiff will be at liberty to approach the

trial Court for amending the plaint appropriately if it is so required. Both

the sides will have their procedural right absolutely intact.

6.In the result, the civil revision petition is disposed of. No costs.

Consequently, connected miscellaneous petition is closed.

12.06.2023

Index : Yes / No Speaking Order / Non-speaking Order ds

To:

1.The II Additional District and Sessions Judge Tiruppur.

2. The Section Officer VR Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis C.R.P.No.3353 of 2019

N.SESHASAYEE.J.,

ds

C.R.P.No.3353 of 2019

12.06.2023

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