Madras High Court
R.Chandrasekar vs P.T.Sambandam on 28 June, 2023
2023/MHC/2848
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.792 of 2021
R.Chandrasekar :Appellant/Respondent/Defendant
.vs.
P.T.Sambandam :Respondent/Appellant/Plaintiff
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule
1(Q) of the Civil Procedure Code against the fair and decretal
order made in I.A.No.1 of 2020 in O.S.No.238 of 2020, dated
30.3.2021, on the file of the learned Sessions Judge, Mahila Court,
Tiruchirappalli.
For Appellant :Mr.R.J.Karthick
For Respondent :Mr.M.Mohamed Riyaz
for Mr.A.Robinson
JUDGMENT
*************
This Civil Miscellaneous Appeal is directed against the order
passed by the Trial Court under Order 38 Rule 5 of the Civil
Procedure Code, attaching the immovable property .
2.The brief back-ground leading to the filing of the appeal is
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as follows:
The appellant was a tenant under the respondent herein. As
he committed wilful default, proceedings have been initiated
against him in R.C.O.P.No.117 of 2015. In the meanwhile, the
resondent had also filed an application for fixing the fair rent in
R.C.O.P.No.126 of 2015 and the learned Rent Controller has fixed
the fair rent at Rs.29,700/-p.m. As the arrears are accumulated
and the matter has reached its finality, for recovery of the arrears
amount of Rs.16,07,900/- with interest at the rate of 12% pa. The
suit has been filed in O.S.No.238 of 2020 for recovery of money. It
is to be noted that the suit has been filed on 12.10.2020. At the
time of filing the suit, an application for attachment before
judgment is filed in I.A.No.1 of 2020. Thereafter, notice under
Order 38 Rule 6-A of Civil Procedure Code also ordered on
6.11.2020 and the pre-suit notice was served on 19.9.2020. After
the suit being filed and notice ordered in the above I.A, it appears
that the appellant has transferred the property in question by way
of settlement in favour of his own daughter on 23.11.2020. In the
above circumstances, the trial Court, after hearing both sides,
prima facie finding that the said transfer of property is fraudulent
one effected in order to defeat the rights of the plaintiff, ordered
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for attachment. The same has been chalenged in this Court.
3.Though various grounds have been raised in the appeal
memorandum, the main contention putforth by the learned cousnel
for the appellant before this Court is that the procedure
contemplated under Order 38 Rule 4 of Civil Procedure Code has
not been followed. Therefore the attachment order pased is bad in
law. It is to be noted that such a ground has never been raised in
the appeal memorandum and only during the submission, it is
made.
4.Be that as it may, it is the contention of the learned counsel
for the respondent that the plaintiff has filed the suit for recovery
of a determined amount.The suit summons has also been ordered
and notice in the I.A is also ordered on 6.11.2020. After having the
knowledge about the proceedings, subsequent transfer has been
effected only in order to defeat the rights of the plaintiff. Therefore
the order of attachment passed by the trial Court does not require
any interference.
5.In the light of the above submisions, the point that arose for
consideration in this appeal is as follows:
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Whether the order of attachment passed by the trial Court is
proper and valid in the eye of law?
6.It is an undisputed fact that the suit has been filed for
recovery of a sum of Rs.16,07,900/- towards arrears of rent. It is
also not disputed that RCOP proceedings have been initiated
earlier as against the appellant for fixing the fair rent which has
reached its finality. The only defense of the appellant before the
trial Court is that as R.C.A is pending, the same has not reached
finality and henced,seeking attachment of the immovable property
does not arise at all. The other defense taken was to the effect that
on the date of application for seeking attachment, he is not the
owner of the property. It is relevant to note that the learned
counsel for the respondent has also brought to the notice of this
Court that the dismissal of the appeal filed in R.C.A.No.4 of 2022 by
the appellate Tribunal and that the revision filed as against the
same in C.R.P.No.1198 of 2023, confirming the orders of the Rent
Controller. This fact is revealed from the copy of the order passed
in the revision, which is placed before this Court. Such being the
matter, the defense that R.C.A is pending, therefore the suit is not
maintainable, has no legs to stand.
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7.As far as the second contention of the appellant before the
trial Court that he is not the owner of the property as on the date
of application filed for attachment of the property, it is relevant to
note that the suit has been laid on 12.10.2020 and an application is
also taken out on the same day and notice in the said application
was ordered on 6.11.2020.These facts clearly indicate that sensing
the problem that may arose, that too, after the notice has been
ordered in the above I.A, property has been settled. Now the law is
well-settled that when a person transferred the immovable
property with an intend to defeat or delay the creditors of the said
person, any such transfer is voidable at the option of any creditor
is defeated or delayed and such transaction is only a fraudulent
transfer. It can be avoided at any time. The respondent herein has
filed an application for attachment of the property for avoiding
such transfer. When the appellant has the sufficient knowledge
about the suit for recovery of arrears of rent and an application is
pending for attachment of the property, still transferring the
property in the name of his daughter, makes it clear that he is
intended to defeat the rights of the respondent. Any such transfer
made in order to defeat the rights of the creditor and in respect of
the amount which was already crystalized in the other proceedings
namely, R.C.O.P, proceedings, such transfer is nothing but a
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fraudulent transfer. Therefore, this Court is of the view that the
order passed by the trial Court does not require any interference.
The contention that no notice whatsoever was issued for furnishing
the security has no legs to stand. Infact, notice has been ordered
on 6.1.2020. No security whatsoever has been furnished. Rather, it
has been resisted on the ground that he is not the owner of the
property at the relevant point of time.
8.In such view of the matter, when the very transfer itself is
fraudulent one, in order to defeat the rights of the respondent
Plaintiff, the order passed by the trial Court causing attachment of
the immovable property does not require any interference by this
Court. Accordingly, the point is anwwered and the Civil
Miscellaneous appeal deserves to be dismissed.
9.In fine, the Civil Misellaneous Appeal is dismissed. No
costs. The Trial Court is directed to dispose of the suit in O.S.No.
238 of 2020 within a period of three months from the date of
receipt of a copy of this judgment.
28.06.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
https://www.mhc.tn.gov.in/judis
To
1.The Sessions Judge,
Mahila Court,
Tiruchirappalli.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.792 of 2021
28.06.2023
https://www.mhc.tn.gov.in/judis
