Y. Vivekanand Yadav vs Gubburi Jagadish Kumar And 2 ...
2021 Latest Caselaw 1382 Tel

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                          AND
            HONOURABLE SRI JUSTICE T.VINOD KUMAR

           C.M.A.NO.103 OF 2021 AND C.R.P. NO.323 OF 2021

                            COMMON JUDGMENT:
                            (Per Sri Justice M.S.Ramachandra Rao)


       Heard Sri Prabhakar Sripada, learned counsel for the appellant in

C.M.A.No.103 of 2021 / petitioner in C.R.P.No.323 of 2021 / plaintiff in

the suit and Sri P. Venkataramana, learned counsel for respondents 1 and

2 / defendants 1 and 2 in the suit. The 3rd respondent / 3rd defendant in

the suit, is not a necessary party.

2. The parties will be referred to as per their array in the suit.

The case of the plaintiff

3. The plaintiff filed the said suit for recovery of a sum of

Rs.1,62,98,750/- against defendants 1 and 2.

4. He contended that the 1st defendant is his friend, that the 2nd

defendant is the wife of the 1st defendant and defendants 1 and 2 are

partners in M/s. Sita Logistics. He alleged that to meet financial

necessities to operate the business of M/s. Sita Logistics, the 1st

defendant approached the plaintiff for a hand loan of Rs.1.50 Crores and

the plaintiff advanced the said amount on various dates during the

financial year 2017-18 on the pledge by the 1st defendant of the original

documents of petrol pump dealership issued by Indian Oil Corporation;

that the 1st defendant also executed an agreement dt.16.08.2017

promising to pay the said amount on or before 10.12.2018 with interest

at 12% per annum or else the plaintiff would also be inducted as a

partner in M/s. Sita Logistics.

5. According to the plaintiff, though the period of the agreement

ended on 10.12.2018, the 1st defendant did not make payment of the

borrowed amount.

6. The plaintiff submitted that the 3rd defendant, who is brother-in-

law of the 1st defendant, intervened and informed the plaintiff that the 1st

defendant sustained loss in the business and made a settlement proposal;

and according to the same, a Memorandum of Understanding

dt.03.01.2019 was entered into between the plaintiff and defendants 1

and 3, under which Rs.45,00,000/- was paid to the plaintiff by the 3rd

defendant, who agreed to pay a further sum of Rs.1.25 Crores with

interest at 18% per annum on or before 03.01.2020 by depositing the

original documents relating to the immovable properties of the 3rd

defendant with the plaintiff.

7. The plaintiff contended that even the 3rd defendant did not repay

the amounts to the plaintiff, and on 10.01.2020 defendants 1 and 2

informed the plaintiff that they inducted him as new partner in M/s. Sita

Logistics and requested him to extend the repayment schedule

mentioned in the Memorandum of Understanding (MoU) dt.03.01.2019

to another three months.

8. According to the plaintiff, the 1st defendant issued a promissory

note dt.10.01.2020, and the 2nd defendant also gave a personal guarantee-

cum-undertaking dt.10.01.2020 to the plaintiff, along with a letter issued

by the Indian Oil Corporation approving the 2nd defendant as a partner in

M/s. Sita Logistics.

9. The plaintiff contended that the amounts had not been paid by the

defendants and if defendants 1 and 2 sell or create third party rights of

the dealership to any third party to defeat the legitimate claim of the

plaintiff, the plaintiff would suffer loss and so the plaintiff had filed the

suit.

I.A.No.411 of 2020

10. Along with the plaint, the plaintiff filed I.A.No.411 of 2020 under

Order XXXIX Rules 1 and 2 CPC for grant of ad interim injunction in

favour of the plaintiff and against defendants 1 and 2 to restrain the

defendants from creating any third party rights including alienation of

the dealership of the Indian Oil Corporation petrol pump in the plaint

schedule property.

11. On 10.08.2020 in I.A.No.411 of 2020, an ex parte ad interim

injunction was granted in favour of the plaintiff restraining defendants 1

and 2 from creating third party rights including alienation of the

dealership of the Indian Oil Corporation petrol bunk in the suit schedule

property until further orders.

The stand of the 1st defendant

12. In the said Application, counter affidavit was filed by the 1st

defendant contending that the 2nd defendant is not a partner in M/s. Sita

Logistics and even the 3rd defendant is not in any way concerned with

the suit transaction.

13. He denied that the plaintiff had advanced a sum of Rs.1.50 Crores

during the financial year 2017-18 and that he had pledged the original

documents of the petrol bunk dealership and executed an agreement

dt.16.08.2017 promising to pay the said amount with interest at 12% per

annum on or before 10.12.2018. According to him, the 1st defendant's

father's surname was wrongly mentioned in the agreement dt.16.08.2017

and if he did really execute such document, he would not give wrong

surname of his own father. He also denied about the settlement proposal

allegedly made by the 3rd defendant and the execution of the MoU

dt.03.01.2019 and deposit of the original documents by the 3rd defendant.

14. The 1st defendant also denied that he and the 2nd defendant

approached the plaintiff on 10.01.2020 requesting to extend repayment

schedule and that they thereafter executed the promissory note

dt.10.01.2020 and the 2nd defendant had given personal guarantee-cum-

undertaking on 10.01.2020 to the plaintiff.

15. He contended that in March, 2020 prior to the institution of the

suit, he had a proposal to transfer the dealership of the petrol bunk in

favour of one J.Surender, and he (1st defendant) was paid Rs.80,00,000/-

towards advance for transfer of dealership. According to him, by

06.05.2020 he had already received Rs.2.70 Crores, and by the date of

grant of ex parte temporary injunction, transfer of dealership had already

been effected and ex parte injunction granted on 10.08.2020 is

inoperative.

16. According to the 1st defendant, the plaintiff had come in 2010 to

the 1st defendant's petrol pump and developed acquaintance with him

and his workers; that the plaintiff introduced himself as a collection

agent in Mallikarjuna Finance, Old Bowenpally, a Chit Fund Company,

and that its owner, by name Umaraju, was a big financer; that the

plaintiff pestered the 1st defendant to participate in the chits of the chit

fund company; in 2010 the 1st defendant subscribed to the chit

comprising of the value of Rs.10,00,000/- and later to the chits of the

value of Rs.25,00,000/- and Rs.50,00,000/- in Mallikarjuna Chits and in

the process of auction of the chit as a usual formality his signatures were

taken on blank stamp papers, blank cheques along with original

documents of the petrol bunk.

17. The 1st defendant alleged that the plaintiff used to come regularly

for collection of the chit subscription money till 2019 and thereafter

certain other persons, who were employees of the said chit fund

company, came to collect the chit subscription money. According to

him, on 20.03.2020, he gave Rs.25,00,000/- in final settlement of the

chits to the other employees of Mallikarjuna Chit Fund Company and

they had also issued a receipt, but they did not return the blank stamp

papers, blank cheques bearing his signatures and the original documents

of the petrol bunk.

18. He also contended that he had given a police complaint on

21.08.2020 which was registered as FIR No.125 of 2020 against the

plaintiff. He contended that he did not take any money from the plaintiff,

and the plaintiff, by concocting forged documents filed the suit and

obtained ex parte temporary injunction against the defendants as if they

borrowed amount from him. He therefore prayed for vacation of the

injunction.

I.A.No.601 of 2020 in IA No.411 of 2020

19. In the said I.A.No.411 of 2020, the plaintiff filed I.A.No.601 of

2020 contending that the defendants were denying service of notice by

WhatsApp which was sent to defendants 1 and 3 on their mobile

numbers; that the said WhatsApp messages were sent to the 1st defendant

and the plaintiff had taken screenshots of the same and also took printout

from an internet centre which was duly attested by the internet centre

owner; and though the defendants are denying the receipt of notices on

their mobile numbers through WhatsApp issued by the plaintiff from his

phone number, the same is seen in the screenshot printout; and there

were a series of chats on WhatsApp between defendants 1 and 3 and the

plaintiff, which show that the money transaction between the parties is

correct and that the plaintiff had approached the Court with clean hands.

20. The plaintiff contended that the print version of all the chats is the

same as that of the phone version and they were stored in his phone as

screenshots, that these chats have been sent to an e-mail address from his

WhatsApp and the internet centre owner has taken printouts of the same

and also copied them into a CD and therefore permission may be

accorded by the Court to receive the chat printout copy along with the

CD under Section 65-B of the Indian Evidence Act, 1872.

The stand of the 1st defendant in IA No.601 of 2020

21. No counter affidavit was filed in I.A.No.601 of 2020, but the said

Application was opposed on the ground that electronic evidence

requested to be received by the plaintiff is not supported by the

certificate required under Section 65-B(4) of the Evidence Act and at

this stage they are not admissible.

22. In I.A.No.411 of 2020, the plaintiff marked Exs.P1 to P9 and

defendants 1 and 2 marked Exs.R1 to R5.

The common order passed by the Court below in I.A.No.411 of 2020 and I.A.No.601 of 2020

23. By common order dt.09.12.2020, the Court below dismissed both

I.A.No.411 of 2020 and I.A.No.601 of 2020 in O.S.No.21 of 2020.

24. As regards I.A.No.601 of 2020, the Court below held that

WhatsApp messages must be proved through evidence in chief and cross

examination during trial and so in an interlocutory application, the

request of the plaintiff cannot be considered because the mobile device

which has the actual conversation was not presented before the Court. It

was also held that no permission would be granted to the plaintiff to lead

electronic evidence in the absence of certificate under Section 65-B (4)

of the Indian Evidence Act, 1872, and therefore I.A.No.601 of 2020 was

dismissed.

25. As regards I.A.No.411 of 2020, the Court below observed that

defendants 1 and 2 are questioning the genuineness of Ex.P1 agreement

dt.16.08.2017, Ex.P2 Memorandum of Understanding dt.03.01.2019,

Ex.P3 promissory note dt.10.01.2020 and Ex.P4 deed of personal

guarantee undertaking dt.10.01.2020 executed by the 2nd defendant; that

the plaintiff is also questioning the genuineness of Ex.R1 receipt

dt.18.03.2020, Ex.R2 receipt dt.06.05.2020 and Ex.R3 letter

dt.07.07.2020; and that no opinion can be expressed in an enquiry during

interlocutory applications on these aspects as to whether they are clean

or not, and it should be only decided during trial.

26. It also observed that if really the 3rd defendant undertook to pay to

the plaintiff Rs.1.00 Crore out of Rs.1.70 Crores on behalf of the 1st

defendant and already paid Rs.45,00,000/- in cash to the plaintiff, in

I.A.No.411 of 2020 the plaintiff should not have mentioned that the 3rd

defendant was not a necessary party.

27. It therefore concluded that the plaintiff cannot be said to have

proved prima facie case and that balance of convenience is not there in

the plaintiff's favour because Indian Oil Corporation is not a party in this

Application. It also observed that transfer of dealership cannot be done

exclusively by the 1st defendant without the consent of the Indian Oil

Corporation.

C.R.P.No.323 of 2021 and C.M.A.No.103 of 2021

28. Challenging the order in IA.No.601 of 2020, the plaintiff filed

C.R.P.No.323 of 2021.

29. Challenging the order in IA.No.411 of 2020, C.M.A.No.103 of

2021 is filed.

The consideration by the Court

30. Heard Sri Prabhakar Sripada for the plaintiff and Sri

P.Venkatramana for the defendant No.s 1 and 2.

31. The court below had observed that, at an interlocutory application

stage, no final opinion on the merits of the contentions can be expressed.

This is no doubt true, but in an application for injunction, it is necessary

for the Court to look at prima facie case, balance of convenience and

irreparable injury and prima-facie take a view of the matter.

32. Merely because the plaintiff disputed Exs.R1 to R3 and

defendants 1 and 2 disputed Exs.P1 to P4, the Court below cannot

simply say that it will go into these documents only during the trial and

will refrain from considering the same. To arrive at who has prima facie

case in the interim injunction application filed under Order XXXIX

Rules 1 and 2 CPC, it has to consider them.

33. In para 12 of the counter affidavit filed by the 1st defendant in

I.A.No.411 of 2020, he himself admitted that he had given signed

documents though allegedly in connection with a chit transaction.

Therefore, signatures on the suit promissory note Ex.P3 and the

agreements Exs.P1 and P2 and guarantee undertaking letter Ex.P4 are

not denied by him.

34. Once his signature on these documents and in particular Ex.P3

promissory note is admitted, presumption under Section 118 of the

Negotiable Instruments Act, 1882 about passing of consideration under a

promissory note would arise, and the burden would be on the 1st

defendant to prove that there was no passing of consideration as is

mentioned in the promissory note Ex.P3. This aspect seems to have

escaped the attention of the Court below.

35. The Court below ought to have noticed that though the 1st

defendant pleaded that Exs.P1 to P4 are concocted documents, but since

the signatures are not disputed by him on these documents specifically, it

can be said that the plaintiff has made out a prima facie case.

36. Also, Exs.R1 to R3 filed by the defendants themselves indicate

that a large sum of money amounting to Rs.4.55 Crores was received

from third parties by defendants 1 and 2 indicating that defendants 1 and

2 are attempting to dispose of the dealership they obtained from the

Indian Oil Corporation to a third party confirming the allegation leveled

by the plaintiff.

37. Thus all conditions for grant of an order of attachment of the

property of 3rd defendant have been made out. There is no necessity at

this stage to consider whether the Indian oil Corporation should have

been impleaded as a party in the suit or that the 3rd defendant also was a

necessary party in the I.A.No.411 of 2020.

38. In the judgment referred to by the Court below in Ambalal

Sarabhai Enterprise Ltd. v. K.S. Infraspace LLP Ltd.1 in relation to

WhatsApp messages, no doubt there is an observation that they are

matters of evidence and their contents have to be proved during trial by

evidence in chief and cross examination. But the said judgment nowhere

(2020) 5 SCC 401

states that such WhatsApp messages cannot be taken into account at the

interlocutory stage.

39. Therefore, it appears that the Court below had misread the said

judgment and incorrectly concluded that in interlocutory applications,

unless the mobile device which has the actual conversation is presented

before the Court, the WhatsApp messages cannot be considered. In fact

if the Court below wanted the mobile device to be produced for its

consideration, it should have directed the parties to submit their

respective mobiles. But it has not done so.

40. Since the plaintiff has been able to make out a case for interim

relief in IA.No.411 of 2020 without relying on the WhatsApp messages

it is not necessary for us to consider the correctness of the Order in

I.A.No.601 of 2020.

41. In this view of the matter, we are of the opinion that the common

order passed by the Court below cannot be sustained.

42. Accordingly, C.M.A.No.103 of 2021 is allowed; order

dt.09.12.2020 passed in I.A.No.411 of 2020 in O.S.No.21 of 2020 by the

XXVII Additional Chief Judge, City Civil Court, Secunderabad is set

aside and the said I.A. is allowed.

43. No orders are necessary to be passed in CRP. No.323 of 2021

wherein the order passed by the Court below in I.A.No.601 of 2020 is

under challenge.

44. It shall be open to the plaintiff to contest the correctness of the

same during trial and persuade the Court below to admit the WhatsApp

messages at that time. No costs.

45. Pending miscellaneous petitions, if any, in these matters shall

stand closed.

____________________________ M.S.RAMACHANDRA RAO, J

____________________ T.VINOD KUMAR, J Date: 28-04-2021

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