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2014 Supreme(Mad) 1330
High Court of Judicature at Madras
M. JAICHANDREN & M. VENUGOPAL, JJ.
Sundaram Fasteners Limited
Versus
S. Venkatesan
O.S.A. Nos. 337 of 2013 & 291 of 2013 & M.P. No. 1 of 2013
Decided on : 16-06-2014
For the Appellant :P.R. Raman, Advocate.
For the Respondent:D. Prabhu Mukunth for M/s. N. Rangasamy, Advocates.
The power to attach property before judgment should not be exercised lightly and without concrete proof of mischief aimed at. Attachment before judgment is a drastic remedy and affects the basic right of a person to deal with his property.
Headnote:
Attachment Before Judgment - Civil Procedure Code - Order XXXIX Rule 1, 2, 5; Order XXXVIII Rule 5 - The court dismissed the application for attachment before judgment and interim injunction, as the plaintiff failed to establish a prima facie case for the relief and the defendant had created an equitable mortgage to secure the amount. The court emphasized that the power to attach property before judgment should not be exercised lightly and without concrete proof of mischief aimed at. The court also highlighted that attachment before judgment is a drastic remedy and affects the basic right of a person to deal with his property.
Fact of the Case:
The plaintiff filed two appeals seeking attachment before judgment and interim injunction against the defendant in a recovery suit. The court dismissed both applications, stating that the plaintiff failed to establish a prima facie case for the relief.
Finding of the Court:
The court found that the plaintiff failed to provide concrete proof of the defendant's intention to dispose of the properties to defeat the decree. The court also emphasized that the power to attach property before judgment should not be exercised lightly and without concrete proof of mischief aimed at.
Issues: The issues revolved around the plaintiff's failure to establish a prima facie case for attachment before judgment and interim injunction, and the defendant's creation of an equitable mortgage to secure the amount.
Ratio Decidendi: The court's decision was influenced by the lack of concrete proof of the defendant's intention to dispose of the properties and the plaintiff's failure to establish a prima facie case for the relief. The court emphasized that the power to attach property before judgment should not be exercised lightly and without concrete proof of mischief aimed at.
Final Decision: The court dismissed the appeals, stating that the plaintiff failed to establish a prima facie case for attachment before judgment and interim injunction.
M. Venugopal, J.
1. The Appellant/Applicant/Plaintiff has filed O.S.A.No.337 of 2013, as against the order, dated 02.01.2013, in A.No.3488 of 2012 in C.S.No.507 of 2012, passed by the Learned Single Judge, in dismissing the Application seeking an order of Attachment Before Judgment of immovable properties of the Respondent/Defendant.
The Appellant/Applicant/Plaintiff has preferred O.S.A.No.291 of 2013, as against the order, dated 02.01.2013, in O.A.No.677 of 2012 in C.S.No.507 of 2012, passed by the Learned Single Judge, in dismissing the Application seeking an order of interim injunction restraining the Respondent/Defendant, his men, servants, agents or anyone acting on his behalf or claiming under him from in any manner alienating or encumbering his immovable properties.
2. The Learned Single Judge, while passing the order in A.No.3488 of 2012 in C.S.No.507 of 2012, on 02.01.2013, has, in paragraph Nos.6 & 7, observed the following:
“6. Firstly, for the reason that even as per the case set up by the plaintiff/ applicant, the amount is secured by equitable mortgage, and the applicant/ plaintiff has also not made out any case for ordering security or attachment, by showing any overt act on the part of the defendant/non-applicant to dispose of the property to defeat the decree to be passed. On the other hand, the averments in the affidavit show that the defendant/ non-applicant has deposited the title deed of the property to create equitable mortgage to secure the amount.
7. This application, therefore, is nothing but misuse of the process of court, and filed with some ulterior motive.”
and resultantly, dismissed the Application.
3. The Learned Single Judge, while passing the impugned order in O.A.No.677 of 2012 in C.S.No.507 of 2012, on 02.01.203, has, in paragraph Nos.9 to 11, observed the following:
“9. The reading of the Order XXXIX Rule 1 and 2 of C.P.C. shows that interim direction/injunction can be granted with regard to the suit property. The plaintiff/ applicant has filed a suit for recovery on the allegation of embezzlement which are yet to be proved.
10. The defendant/non applicant has challenged the order of termination by filing separate suit which is still pending. Not only this, it is the case of the plaintiff/applicant that the defendant has created the equitable mortgage to secure the amount. Therefore, there is no occasion even to invoke the provisions of Order XXXIX Rule 5 of C.P.C. for attachment of the property to secure the decree to be passed.
11. Once schedule property is not subject matter of suit, no injunction can be granted under Order XXXIX Rule 1 and 2 of C.P.C., nor this application can be treated to be one under the Order XXXVIII Rule 5 of C.P.C., as admittedly, equitable mortgage stands created in favour of the plaintiff/applicant.”
and consequently, dismissed the Application.
Contentions of the Appellant/Applicant/Plaintiff in O.S.A.No. 337 of 2013:
4. The Learned Counsel for the Appellant contends that the Learned Single Judge had committed an error in arriving at a conclusion that in support of A.No.3488 of 2012 in C.S.No.507 of 2012 would clearly show that it was a case of Plaintiff (Appellant) that no steps were taken by the Respondent/Defendant to dispose of the property.
5. According to the Learned Counsel for the Appellant, it is the specific case of the Appellant/Plaintiff that the Respondent/Defendant could not have purchased the properties without embezzling the Appellant's funds and if the Respondent/Defendant is not directed to furnish security and attachment of the properties are not ordered, he would certainly sell them, leaving the Appellant with nothing to execute the Decree that may be passed in the suit.
6. The Learned Counsel for the Appellant submits that the Learned Judge had failed to appreciate the pleadings, contentions, documents and totality of the facts and circumstances of the case.
7. Expatiating his contention, the Learned Counsel for the Appellant/Plainti
