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2021 Supreme(Mad) 3541
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PARESH UPADHYAY, SATHI KUMAR SUKUMARA KURUP, JJ.
R. Krishnamurthy & Ors. - Appellants
Versus
S. Sangeetha & Ors. - Respondents
O.S.A. No. 327 of 2021 and C.M.P. No. 19858 of 2021
Decided On : 09-12-2021
For the Appellants : Mr. S. Ravi.
For the Respondents: Mr. K. Gowthamkumar.
Headnote:
Code of Civil Procedure,1908 - Section 115 - Order XXXVIII Rules 1, 2, 5 and 6 - Relief sought in suit - Family Agreement Deed - Appellants has submitted that directions given by Single Judge on an interim application are erroneous on more than one count since relief sought in main suit and in interim application were essentially identical - not only the plaintiffs were not entitled to any interim relief in their favour during pendency of the trial, the impugned order according to us is without any evidence which can be taken into consideration legally. The impugned order is also, inter alia based on the failure on the part of the defendants to discharge their obligation to disprove the case of the plaintiffs. According to us, this could not have been done. No relief can be granted to the plaintiffs in these facts and with these considerations. Para 5.5.
Finding of the Court:
Conjoint consideration of relief sought in suit relief prayed in form of interim application and direction given by learned Single Judge leaves no room to hold that direction which could have given against defendants finally in substance are given at this stage not in form of direction to pay to plaintiffs but in form of providing security to that effect – Court find that giving any direction in interim application in favour of plaintiffs can certainly be done when plaintiffs can be said to have strong prima facie case if balance of convenience is in favor of plaintiffs and further if non-grant of interim relief is likely to cause irreparable loss to plaintiffs – Court find that whether plaintiffs on basis of pleadings can be said to have made prima facie case or not itself is an issue coupled with fact that suit being barred by limitation is one of ground raised in appeal, however since suit is large open court do not express any opinion in that regard – However so far rest of two conditions are concerned court do not find that in the facts like this balance of convenience can be said to be in favour of plaintiffs.
Result : Appeal is Allowed.
JUDGMENT :
Paresh Upadhyay, J.
This appeal arises from the order passed by learned Single Judge dated 31 August 2021 in A.No.1178 of 2021 in C.S.No.106 of 2021.
2. We have heard learned advocate for the appellants (original defendant Nos. 1 to 3) and learned advocate for respondents (original plaintiffs).
3. Learned advocate for the appellants has submitted that directions given by learned Single Judge on an interim application are erroneous on more than one count, since the relief sought in the main suit and in the interim application were essentially identical. The pleadings in both were also the same. Issues are not framed and the burden to disprove the case of the plaintiffs was shifted to the defendants which led to the impugned order. Learned advocate for the appellants has extensively taken this Court through the plaint, interim application on which the impugned order is passed and the reasons recorded in the impugned order and has submitted that what could not be done even after full fledged trial is ordered by the impugned order. Attention of the Court is invited to serious disputes between the plaintiffs and defendants who are close family members (two branches of one tree), the period of the transaction which is the basis in the suit, other disputes / litigations between these two branches and has submitted that the impugned order be interfered with.
4. Learned advocate for both the plaintiffs has vehemently opposed this appeal. It is submitted that the material produced by the plaintiffs are considered by learned Single Judge, which was sufficient to arrive at the conclusion that the defendants were under obligation to pay the amount ordered by the impugned order and in any case that amount was required to be secured which is done by the impugned order. It is submitted that 'note' is also referred to in the impugned order, in which complete details were given by the plaintiffs. It is submitted that no interference be made by this Court. It is submitted that this appeal be dismissed.
5. Having heard learned advocates for contesting parties and having considered the material on record, this Court finds as under:-
5.1 The cause of action as pleaded in the plaint and the relief sought read as under:-
“48. The cause of action for the present suit arose within the jurisdiction of this Court when the husband of the 1st plaintiff died on 15.11.2012 leaving behind the 1st plaintiff and 3 daughters (including the 2nd plaintiff as legal heirs), when the 1st plaintiff was inducted into partnership firm M/s.V.Rangasamy & Co. on 18.01.2013 and benefits were given to her to secure her financial needs, when the plaintiffs entrusted the 1st defendant with the cheque book of their bank accounts after the demise of the 1st plaintiff's husband on the bona fide belief that the 1st defendant would look after their financial needs, when the firm was acquired by the Company incorporated on 01.04.2013 where the 1st defendant was a director, when the 1st plaintiff was made a director of the company on 31.07.2017 to secure her financial needs, when certain patent irregularities were discovered in the running of the company on February 2018 where the 1st defendant had forged the signature of the 1st plaintiff to take over the control of the current account of the company and fraudulently transferred 80,000 shares belonging to the 1st plaintiff in favour of the 2nd defendant on 25.03.2017, when the defendants had illegally siphoned off funds from the company to purchase properties in his own name, when the 1st and 2nd defendant undertook to rectify such transfer and believing their words, a Family Agreement Deed was entered into on 22.06.2018, when subsequent to the entering of the said deed, the 1st plaintiff unearthed various illegal transfers/ withdrawals from the plaintiffs' bank accounts by the defendants from 2013-2016 to purchase properties in their name, when the defendants threatened the plaintiffs' family with dire consequences when question
