Madras High Court
S.Rajendra Prabu vs J. Jayabal on 12 September, 2023
C.R.P. No. 3326 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :.12.09.2023
CORAM :
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P. No. 3326 of 2023
and
C.M.P.No.20686 of 2023
S.Rajendra Prabu ...Petitioner
.Vs.
J. Jayabal ...Respondents
Prayer: This Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, praying to set aside the order dated 18.07.2023 passed in
E.P.No.191 of 2021 in O.S.No.127 of 2019 on the file of I Additional
Subordinate Judge, Cuddalore and pass orders.
For Petitioner : Mrs.S. Suseela Devi
For Respondent : Mr.R. Rajavelavan
ORDER
This petition is filed seeking a direction to set aside the
order dated 18.07.2023 passed in E.P.No.191 of 2021 in O.S.No.127 of
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C.R.P. No. 3326 of 2023
2019 on the file of I Additional Subordinate Judge, Cuddalore and pass
orders.
2. The case of the petitioner is that the petitioner and the
respondent are relatives and the petitioner borrowed loan from the
respondent and settled the same. However, the respondent is claiming
exorbitant interest at the rate of 36% interest and also refusing to hand over
the promissory notes executed by the petitioner even after the payment of the
principal amount. The respondent herein has filed O.S.No.127 of 2019
against the petitioner for recovery of money and the same was decreed in
favour of the respondent and the petitioner is directed to pay a sum of
Rs.6,66,582/- with interest at the rate of 9% per annum from the date of
filing of this suit till the date of decree and 6% per annum interest for the
principal amount of Rs.5,00,000/- from the date of decree till the date of
realization. To execute the same the respondent herein has filed E.P.No.191
of 2021 in O.S.No.127 of 2019 on the file of I Additional Subordinate Judge,
Cuddalore, wherein, the learned Judge has ordered to arrest the
petitioner/Judgment Debtor. Aggrieved over the same, the petitioner has
come up with this petition.
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C.R.P. No. 3326 of 2023
3. The learned counsel for the petitioner submitted that he has
settled the entire principal amount and he has not paid the interest amount,
due to the reason that the respondent has charged exorbitant interest at the
rate of 36%. Furthermore, the respondent is refusing to return the
promissory notes even after the principal amount is settled. Hence, he prays
to allow this petition.
4. The learned counsel for the respondent submitted that the
petitioner herein in the year had borrowed a sum of Rs.5,00,000/- in the
year 2016 and also executed to promissory notes and thereafter, there was a
default in re-payment of the dues. Hence, he has filed the O.S.No.127 of
2019 seeking for recovery of the due amount which was decreed in favour of
the respondent on 19.04.2021 and he has also filed E.P.No.191 of 2021 in
O.S.No.127 of 2019 to execute the decree dated 19.04.2021, but still he was
unable to realize his money. Hence, he prays to dismiss this petition.
5. On a perusal of records it is seen that the petitioner herein has
filed a counter in E.P.No.191 of 2021 in O.S.No.127 of 2019 wherein, the
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C.R.P. No. 3326 of 2023
respondent has no means to pay the decree debt inspite of his sincere
attempts because of his health condition. In the fourth para of the affidavit
the petitioner himself has stated that he has suffered serious set back and
loss in his business and not even able to file an appeal against the Judgment
passed in O.S.No.127 of 2019. Further more a I.P petition was filed against
the petitioner I.P.No.10 of 2019 before the Principal Subordinate Judge,
Cuddalore with a prayer to declare the petitioner/S.Rajendra Prabu who has
arrayed as a first respondent therein as an insolvent and the same is pending.
6. Before adverting further it would be relevant to go through a
Judgment rendered by this Court in C.R.P.No.3747 of 2017 on 13.03.2017
in the case of Ramasamy Vs Pushpa which is applicable to the present facts
of the case and the same is extracted hereunder:
32. In this case, the means evidence let in
by the decree holder does not establish that the
Judgment debtor has means, but failed, refused and
neglect to satisfy the decree debt. In such
circumstances, the Execution Court fell into error,
misdirected itself in ordering the arrest and
detention of the petitioner in Civil prison. The said
order is flawed. It calls for our interference in
exercise of our revisional jurisdiction to correct this
legal error committed by the Execution Court.
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C.R.P. No. 3326 of 2023
7. In view of the above, this Court directs the petitioner to pay the
entire debt amount of Rs.6,00,000/ in four installments, the first installment
falls on 30.10.2023, and the petitioner is directed to pay a sum of
Rs.1,50,000/ on or before the first installment date. Likewise, he has to pay
the balance amount on or before 31.03.2024 in three installments. Till such
date the order of arrest is stayed.
8. With the above directions, this Civil Revision Petition is
disposed of. No order as to costs. Consequently, the connected
miscellaneous petition is closed.
12.09.2023
smn
Index : Yes/No
Internet: Yes/No
To.
1. The I Additional Subordinate Judge, Cuddalore
https://www.mhc.tn.gov.in/judis
C.R.P. No. 3326 of 2023
V.BHAVANI SUBBAROYAN,J.
Smn
C.R.P. No. 3326 of 2023
and
C.M.P.No.20609 of 2023
12.09.2023
https://www.mhc.tn.gov.in/judis
