The main legal point established in the judgment is that the plaintiff must establish a prima facie case for the suit claim, and the court may pass suitable orders of furnishing security under Order 38 Rule 5 CPC if the defendants are with an intention to obstruct or delay the execution of any decree that may be passed against them.

(The judgment of the Court was delivered by V. PERIYA KARUPPIAH, J)

1. This appeal has been directed against the order passed by the learned single Judge in O.A.No.1203 of 2010 and Application No.6505 of 2010 in C.S.No.941 of 2010.

2. The brief facts of the case of the plaintiff / applicant is as follows:

(i)The plaintiff/applicant has been doing real estate business since 2002. The first defendant had approached the plaintiff/applicant to purchase the lands at Bangalore in order to sell the same and to make profit. Earlier, the first defendant purchased 50% of 3 acres of land in Giddanahalli Village, Bangalore Rural District and had sold the same and gained huge profit. The first defendant again approached the plaintiff/applicant to purchase some more lands and had entered into agreements in respect of the land at Bidaraguppe Village, Anekal Taluk measuring an extent of 5 acres 22 = guntas for which the plaintiff paid heave advance to the land owners. The first defendant requested the plaintiff/applicant to get the sale deed registered in his name and promised to pay the sale consideration as agreed by him. The defendants paid the sale consideration out of his own founds and got the sale deeds executed in the name of the first defendant. The first defendant agreed to purchase the lands at the rate of Rs.46,00,000/- per acre and the total sale consideration comes to Rs.2,56,00,000/-, but the first defendant paid only Rs.1,77,00,000/- to the plaintiff/applicant and he is liable to pay a sum of Rs.79,00,000/-. The first defendant issued a cheque for a said sum of Rs.79,00,000/- drawn on the account of the second defendant bearing No.401681 dated 30.10.2007 on ABN Amro bank, Haddows Road, Chennai towards the balance amount due and payable to the plaintiff/applicant. The said cheque had been dishonoured. Therefore, a complaint was given against the first defendant under section 138 of the Negotiable Instruments Act before the XVI Additional Chief Metropolitan Magistrate Court, Bangalore and the same was pending. The defendants failed to pay the entire dues to the plaintiff. Hence, a suit was filed for recovery of a sum of Rs.79,00,000/-together with interest at 18% from 30.10.2007 and as on 25.10.2010, the defendants are liable to pay a sum of Rs.1,21,66,000/- to the plaintiff/applicant.

(ii)Since the defendants came to know about the steps taken by the plaintiff/applicant to recover the dues, they tried to alienate all their properties, in order to defeat plaintiff's rights. Hence, the plaintiff/applicant prayed this Court to direct the defendants to furnish security for the suit claim amount of Rs.1,21,66,000/- failing which to attach the properties set out in the petition.

(iii)The first respondent has filed a counter to the above application stating that apart from the dishonoured cheque and the judgment of the Criminal Court, the plaintiff has no piece of evidence to establish the liability of the defendants to the suit claim. A dishonoured cheque and a conviction by the Criminal Court alone is not sufficient to presume a prima-facie case in favour of the plaintiff for recovery of money. According to the first respondent, the plaintiff was guilty of fraud and misappropriation of his funds, in collusion with a person by name Krishnamoorthy, who was appointed as his Power Agent by the first defendant. The first defendant has already lodged a criminal complaint for fraud, misappropriation etc., and a charge sheet has been laid on the file of the Judicial Magistrate, Poonamallee. Therefore, According to the first respondent, there is no basis for the suit claim and hence the interim direction for furnishing security cannot be ordered.

3. The learned single Judge has considered the submissions made by both sides before him and had come to a conclusion of directing the appellants / respondents to furnish security to an extent of a sum of Rs.79,00,000/- within a period of three weeks from the date of receipt of a copy of the