Madras High Court
Nagammal vs C.Lizy Janet Bai on 14 June, 2023
C.R.P.(MD)No.1744 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.1744 of 2022
and
C.M.P.(MD)No.7647 of 2022
1.Nagammal
2.Kannan alias Pravin Bhagavat
3.Prasanth .. Petitioners
Versus
C.Lizy Janet Bai .. Respondent
Prayer :- Petition filed under Article 227 of the Constitution of India, to set aside the
order and decreetal order dated 22.07.2022 of the learned Additional District Judge
of Kuzhithurai, made in I.A.No.2 of 2019 in O.S.No.173 of 2019 on his file,
dismissing the said I.A.
For Petitioners : Mr.K.N.Thambi
For Respondent : Mr.K.P.Narayanakumar
ORDER
The petitioners are the defendants in O.S.No.173 of 2019 filed by the
respondent on 10.08.2019 before the Principal District Court, Kanyakumari at
Nagercoil.
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C.R.P.(MD)No.1744 of 2022
2.The petitioners are aggrieved by the impugned order passed by the Court
below in I.A.No.2 of 2019 seeking to attach seven different properties. The relevant
portion of the impugned order reads as under:-
''5. The point for consideration whether this petition as to be allowed
or not? Heard both Sides arguments, Perused the petition and Counter
averments,
The petitioners side no oral and documentary evidence has been let in
on the respondent side Ex.R1 marked no oral evidence let in.
i) The petition is filed by the Petitioner/Plaintiff for under Order 38
Rule 5 under 151 of C.P.C. to attach the petition mentioned property before
judgment.
ii) The main contention of the petitioner is that there is a lawful
apprehension that the Defendants/respondents intend to sale property to any
third parties two defray the plaintiff is lawful claim. Hence he pray for allow
this application.
iii) The respondent filed of a detailed counter alleging that the
husband of the first respondent and father of the second and third
respondent filed an insolvency petition No.3/2015 before the Hon'ble
Principal District Court and Kanyakumari at Nagercoil, which has been
marked as Ex.R1 in this petition in that in page 15 Serial No.3, the
petitioner/plaintiff name was mentioned. Hence this pray for dismissal of
this petition.
while so on perusal of Ex.R1 it is true that the petition was filed by
P.N.Uadyar Pillai and he was died on 18.01.2017. But no legal heirs has
been impleaded till 17.02.2021 further the Insolvency Petition No.3/2015
not at all disposed by the Hon'ble Principal District Judge Kanyakumari at
Nagercoil till this date.
iv) To sum of everything the apprehension of the petitioner/plaintiff of
lawful one hence this court inclined to allow this Petition and point for
consideration decided in favour of the petitioner.
In the result this petition is allowed. Attach by 05.09.2022. Batta in 3
days. Call on 05.09.2022.''
3.On behalf of the petitioners, the learned counsel for the petitioners submits
that the suit is based on a fabricated promissory note dated 18.01.2017, which is said
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C.R.P.(MD)No.1744 of 2022
to have been executed by the first petitioner herein [first defendant] along with her
husband Late.Udayar Pillai, who died on 18.01.2019. It is submitted that the pre-suit
notice dated 27.07.2019 was addressed to the address at Kuzhithurai and within 15
days of the said notice, the suit was filed on 10.08.2019. It is specifically stated that
the said notice was not received by the petitioners. It is therefore submitted that the
petitioners have also filed a written statement, where they have disputed the
execution of the alleged promissory note, dated 18.01.2017.
4.It is submitted that there is no scope for attaching the property before
judgment under Order XXXVIII Rule 5 of C.P.C. He further submits that the plaint
is cryptic and also does not disclose the date of the amounts borrowed. The learned
counsel for the petitioners, however, fairly submits that the first petitioner's husband
and the father of petitioners 2 and 3 Late.Udayar Pillai had indeed borrowed a sum of
Rs.10,00,000/- from the respondent/plaintiff in the year 2013 and had also paid
interest upto 2015 and thereafter, on account of various factors, was unable to repay
the amounts to the respondent herein.
5.It is submitted that the first petitioner's husband Late.Udayar Pillai had also
filed I.P.No.3 of 2015 before the Principal District Court, Kanyakumari at Nagercoil,
declaring himself as insolvent under the provisions of the Provincial Insolvency Act,
1920, wherein the respondent herein was arrayed as the third respondent. It is
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C.R.P.(MD)No.1744 of 2022
submitted that the said proceeding stood abated as the first petitioner's husband died
on 18.01.2019 and therefore, I.P.No.3 of 2015 was dismissed on 13.03.2019.
6.It is submitted that the impugned order is contrary to the well settled
principles of law. It is submitted that mere filing of an affidavit is not sufficient for
the Court to order attachment before judgment of an immovable property, as has been
held by the Hon'ble Supreme Court in Raman Tech & Process Engg. Co. and
another vs. Solanki Traders reported in 2008 (2) SCC 302, which has been
followed by several Courts.
6.It is submitted that it is mandatory for the Court to give an opportunity to the
defendants before passing the drastic order of attachment as engrafted in Order
XXXVIII Rule 5(1) of C.P.C. In this case, unnecessarily the self-earned property of
the first petitioner herein, who was a Bank employee, has been attached. It is further
submitted that the petitioners have no objection for rest of the properties to be
attached, considering the fact that the loan was borrowed by Late.Udayar Pillai
during his life time in the year 2013 and that the suit could not have been filed
during the pendency of the insolvency proceedings in I.P.No.3 of 2015.
7.In support of his submissions, the learned counsel for the petitioners has also
relied on several decisions of this Court as detailed below:-
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C.R.P.(MD)No.1744 of 2022
(i) Renox Commercials Ltd. vs. Inventa Techonologies Pvt. Ltd. reported in
AIR 2000 Madras 213
(ii) M.S.Sakthivel and another vs. R.Sekar reported in 2002 (1) MLJ 756
(iii) S.Sidarth vs. P.Lalitha Kumari and others reported in 2014 (2) CTC
(iv) Global Plastics vs. T.K.K.N.N.Vysya Charities reported in 2019 (2)
MWN (Civil) 409
8.Defending the impugned order, the learned counsel for the
respondent/plaintiff submits that the impugned order although cryptic, is well
reasoned order and therefore, does not call for interference. It is further submitted
that in the application filed by the respondent in I.A.No.2 of 2019, a notice in Form-
VII to Appendix – F of C.P.C. was sent from the Court to the petitioners. However,
the petitioners failed to furnish any security and therefore, the Court was inclined to
pass the impugned order, attaching all the properties enumerated in the schedule to
the petition in I.A.No.2 of 2019. He therefore submits that the impugned order does
not call for interference in the hands of this Court and therefore, prayed for dismissal
of the Civil Revision Petition. Alternatively, the learned counsel for the
respondent/plaintiff submits that there can be a direction to the Trial Court to dispose
the suit in O.S.No.173 of 2019, as the pleadings have already been completed.
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C.R.P.(MD)No.1744 of 2022
9.I have considered the arguments advanced by the learned counsel for the
petitioners and the learned counsel for the respondent.
10.The decisions cited by the learned counsel for the petitioners are in the
context of ordinary money suit. The case under consideration is for recovery of
money due on a promissory note dated 18.01.2017, allegedly executed by the first
petitioner and her late husband Udayar Pillai.
11.Section 118 of the Negotiable Instruments Act, 1881, contemplates
presumptions as to negotiable instruments. Until the contrary is proved, the
following presumptions shall be made:-
''(a) of consideration. —that every negotiable instrument was made
or drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
(b) as to date. —that every negotiable instrument bearing a date was
made or drawn on such date;
(c) as to time of acceptance. —that every accepted bill of exchange
was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer. —that every transfer of a negotiable
instrument was made before its maturity;
(e) as to order of indorsements. —that the indorsements appearing
upon a negotiable instrument were made in the order in which they appear
thereon;
(f) as to stamp. —that a lost promissory note, bill of exchange or
cheque was duly stamped;
(g) that holder is a holder in due course.—that the holder of a
negotiable instrument is a holder in due course:''
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C.R.P.(MD)No.1744 of 2022
Therefore, the initial burden is on the petitioners to show that there was no
possibility of the promissory note being executed either by the first petitioner or her
husband. This could have been achieved by the petitioners by subjecting the
promissory note for examination by the Court, showing that the signature in the
promissory note either forged or fabricated.
12.Mere bald denial in the written statement is not sufficient. At the same
time, it is noticed that the impugned order passed by the learned Additional District
Judge, Kuzhithurai, is bereft of details. Before passing an order attaching a property,
more so, a residential property, the Court has to follow the procedure prescribed
under Order XXXVIII Rule 5 of C.P.C. The Court has to come to the conclusion that
the petitioner/petitioners is/are likely to defeat the decree, which may be secured by
the respondent, apart from the fact that the respondent has a prima facie case to
succeed in the suit. Mere assertion by the respondent that the petitioner/petitioners
is/are likely to sell the property or is/are going to abscond from the jurisdiction of the
Court, is not sufficient for the Court to attach the property. There has to be some
formidable and concrete evidence. The law on the subject is very clear.
13.The order that has been passed by the learned Additional District Judge,
Kuzhithurai, is cryptic and is not reasoned. To balance the interest of the parties, I am
inclined to set aside the impugned order dated 22.07.2022, passed in I.A.No.2 of
2019 in O.S.No.173 of 2019 and remit the case back to the learned Additional
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C.R.P.(MD)No.1744 of 2022
District Judge, Kuzhithurai, for passing a fresh order on merits and in accordance
with law. The learned Additional District Judge, Kuzhithurai, shall pass appropriate
orders after considering all the attendant facts, including the apprehension expressed
by the respondent that the petitioners may abscond or bring the property for sale.
Status quo as on date shall remain in force till orders are passed in de novo
proceeding.
14.In view of the above, the learned Additional District Judge, Kuzhithurai, is
directed to dispose I.A.No.2 of 2019 de novo afresh within a period of 30 days from
the date of receipt of a copy of this order. All the issues are left open. It is made
clear that the parties are directed to maintain status quo as on date and co-operate
with the Trial Court.
15.Accordingly, this Civil Revision Petition is allowed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
NCC : Yes/No
Index : Yes/No 14.06.2023
Internet : Yes/No
smn2
To
The Additional District Judge,
Kuzhithurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1744 of 2022
C.SARAVANAN, J.
smn2
Order made in
C.R.P.(MD)No.1744 of 2022
14.06.2023
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