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2017 Supreme(Mad) 4145
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Color Chemicals – Appellant
Vs.
M. Dhanalakshmi and Ors. – Respondents
CRP(PD) No.1616 of 2013
Decided On : 03-04-2017
Advocate Appeared:
For the Appellant : V.P. Sengottuvel, Adv.
For the Respondents: A.K. Kumarasamy, Adv.
Headnote:
Civil Procedure Code,1908 - Section 64 - Order 38 and XXXIII - Rule 5 and 11-A - Partnership firm - Purchasing Dyes and Chemicals - Delivery challans - Petitioner/plaintiff further states that plaintiff is registered partnership firm having its office at No. 73, Main Road, Erode-4 and doing business in Dyes and Chemicals - First defendant and her husband late were partners of Process - Said concern was doing business at 242, West Street, District and said concern is one of customers of plaintiff concern and was regularly purchasing Dyes and Chemicals from petitioner/plaintiff concern on credit basis - Petitioner/plaintiff also made the supplies of said materials as per above mentioned orders and also sent their invoice cum delivery challans along with said supplies - Petitioner/plaintiff made last payment to the respondents/defendants by way of cheque towards part satisfaction of its liability - Petitioner/plaintiff also states that balance payment for the materials was to be made by said respondents concern within 120 days from date of the invoice and the contractual rate of interest as mentioned in invoice was to be paid at rate of 24% per annum by the said concern for delayed payments - Held, It should be used sparingly and strictly in accordance with the Rule - Purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt - Any attempt by a plaintiff to utilize provisions of Order 38 Rule 5 as a leverage for coercing defendant to settle suit claim should be discouraged - Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing defendants for out of Court settlements, under threat of attachment - A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy Court that defendant is about to remove or dispose of the whole or part of his property, with intention of obstructing or delaying execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 C.P.C. Courts should also keep in view the principles relating to grant of attachment before judgment - There is no specific averment or allegation made - Learned Judge considering those facts and the orders of this Court passed in 2009-5-L.W. 510 : 2010 (1) MWN (Civil) 432 dismissed application, which is not warranting interference by this Court - Accordingly, this Civil Revision petition is liable to be dismissed - Civil revision petition is dismissed by confirming order passed
M.V. Muralidaran, J.
1. The plaintiff is the civil revision petitioner before this Court, challenging the order in I.A. No. 477 of 2012 in O.S. No. 170 of 2012, dated 21.12.2012, on the file of the First Additional Subordinate Court, Erode. The case of the petitioner/plaintiff is that the petitioner is the power agent of M/s. Color Chemicals, a registered Partnership firm.
2. The petitioner/plaintiff further states that the plaintiff is the registered partnership firm having its office at No. 73, Bhavani Main Road, Veerappanchatram, Erode-4 and doing business in Dyes and Chemicals. The first defendant and her husband late A. Mohanasundaram were the partners of M/s. Kamalraj Process. The said concern was doing business at 242, West Street, Sengunthapuram Chithode, Erode District and the said concern is one of the customers of the plaintiff concern and was regularly purchasing Dyes and Chemicals from the petitioner/plaintiff concern on credit basis. Since 2000, pursuant to various orders placed by through order from and telephone message, the plaintiff concern sold and supplied various quantities of Dyes and Chemicals on credit basis to the said concern for the past several years. The petitioner/plaintiff also made the supplies of the said materials as per the above mentioned orders and also sent their invoice cum delivery challans along with the said supplies. The petitioner/plaintiff made the last payment to the respondents/defendants on 21.07.2011 by way of cheque towards part satisfaction of its liability.
3. The petitioner/plaintiff also states that the balance payment for the materials was to be made by the said respondents concern within 120 days from the date of the invoice and the contractual rate of interest as mentioned in the invoice was to be paid at the rate of 24% per annum by the said concern for delayed payments. It is apparent from the above said invoices and relevant accounts details kept by the plaintiff in its regular course of business that as on 07.05.2012 a principal amount of Rs. 1,88,449.06/- is due and payable by the said concern to the plaintiff and as on 07.05.2012 an interest of Rs. 1,00,218.64/- with the interest at the rate of 24% p.a. on the principal is due and payable by the said concern to the plaintiff. Therefore, as on 07.05.2012, a total sum of Rs. 2,88,667.70/- is due and payable by the said concern to the plaintiff. Hence, Thiru. A. Mohanasundaram is liable to answer the claim of the plaintiff. Therefore, the petitioner/plaintiff has initiated the said suit for the claim amount of Rs. 1,88,449.06/- with the interest at the rate of 24% per annum upto 07.05.2012 by totally Rs. 2,88,667.70/-.
4. Along with the suit, the petitioner/plaintiff has filed an application in I.A. No. 477 of 2012 for attachment of the properties. In the said application, the plaintiff states that the respondents/defendants were attempting to alienate the petition mentioned property to third parties and the petitioner/plaintiff noted that the first respondent had a negotiation with one real estate broker on 03.05.2012. Therefore, he filed the above application to furnish security for the satisfaction of the decree amount and prayed the Court below for granting order of attachment of the petition mentioned property.
5. The respondents/defendants have filed the written statement along with the counter in I.A. No. 477 of 2012 and the written statement in O.S. No. 170 of 2012. In the written statement, the respondents/defendants stated that the suit itself is not maintainable and it is hit by Order 3 Rule 2 of C.P.C., without filing the application and without leave of the Court, the said application is not maintainable and the same is liable to be dismissed.
6. The respondents/defendants were admitted that the deceased Mohanasundaram was a partner and he was died and therefore, the respondents are the legal heirs of the said Mohanasundaram. The respondents/defendants also stated that the attachment sought for by the pe
