Back
2024 Supreme(Mad) 1587
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
G. Kathiresan – Appellant
Versus
R. Parthiban – Respondent
CMA No. 1418 of 2024, CMP No. 12384 of 2024
Decided On : 09-07-2024
Advocate Appeared:
For the Appellant : V. Sundarraman.
For the Respondents: Avinash Natwani, V. Srimathi, S.V. Karthikeyan, A. Anandan.
IMPORTANT POINT
A court undertaking is binding, and its violation can result in charges over properties sold in breach of such undertakings.
Headnote:
Undertaking - Violation of Court Order - Order XXXIX Rule 2A, Order XLIII Rule 1(r) - The court emphasized the binding nature of undertakings given before it, equating violations to contempt, and established that such violations can lead to charges over properties sold in breach of those undertakings.
Fact of the Case:
The plaintiff filed a suit for recovery based on a promissory note. The defendant undertook not to alienate a property but sold it, leading to a contempt application by the plaintiff.
Finding of the Court:
The court found that the defendant intentionally violated the undertaking given to the court, justifying the lower court's order for civil detention.
Issues: Whether the defendant's sale of property in violation of a court undertaking warranted civil detention or other remedies.
Ratio Decidendi: A solemn undertaking given before the court is binding, and its violation can lead to serious consequences, including charges over the property sold.
Result: The appeal is disposed of with modifications regarding the undertaking and charges over the sold property.
JUDGMENT :
N. ANAND VENKATESH, J.
Prayer: Civil Miscellaneous Appeal filed under Order XLI Rule 1(r) of C.P.C. against the fair and decreetal order dated 15.06.2022 passed in IA No. 03 of 2021 in O.S. No. 23 of 2019 on the file of the PDJ, Perambalur.
1. This appeal has been filed under Order XLIII Rule 1(r) of C.P.C. against the fair and decreetal order passed in IA No. 3 of 2021 in O.S. No. 23 of 2019 under Order XXXIX Rule 2A of C.P.C. by the learned Principal District Judge, Perambalur, dated 15.06.2022.
2. Heard Mr. V. Sundarraman, learned counsel appearing on behalf of the appellant, Mr. Avinash Natwani, learned counsel appearing on behalf of the 1st respondent, Mr. S.V. Karthikeyan, learned counsel appearing on behalf of the 2nd respondent and Mr. A. Anandan, learned Government Advocate appearing on behalf of respondents 3 and 4.
3. The 1st respondent/plaintiff filed a suit against the appellant/defendant seeking for recovery of money to the tune of Rs.24,80,000/- with 12% interest. The suit was filed based on the alleged promissory note that was executed by the appellant in favour of the 1st respondent. The 1st respondent filed an application in I.A. No. 1 of 2019 seeking for attachment of properties (ABJ) pending the suit.
4. When the matter came up for hearing on 04.09.2019, the Court below passed the following order based on the undertaking given by the appellant. Heard. The defendant also is present in person undertook that he would not alienate his house property recording the same for closure of petition. The petitioner has no objection accordingly the petition is closed.
5. While filing the ABJ petition, two properties were shown as schedule properties and the appellant gave an undertaking that he will not alienate his house property which was Schedule B property in the petition. However, the appellant proceeded to sell the property in favour of the 2nd respondent through a registered Sale Deed dated 20.03.2021 registered as Document No. 272 of 2021. Since this alienation took place in violation of the undertaking that was given before the Court below, the 1st respondent/plaintiff filed IA No. 3 of 2021 under Order XXXIX Rule 2A to punish the appellant for violating the undertaking.
6. The Court below on considering the facts and circumstances of the case and upon hearing both sides came to a conclusion that the appellant had intentionally violated the undertaking given before the Court and had sold the B Schedule property and therefore, the Court below ordered the appellant to be detained in the civil prison for three months. Aggrieved by this order, the appellant/defendant has filed the present appeal before this Court.
7. The learned counsel for the appellant submitted that the house property (B Schedule) was already mortgaged with REPCO Housing Finance Limited by way of deposit of title deeds and SARFAESI proceedings were also initiated by issuing a demand notice. In view of the same, the appellant approached the financial institution with a one time settlement offer to settle the loan amount. In order to settle this amount, the appellant had to sell the house property in favour of the 2nd respondent. It is under these circumstances, the property came to be sold in favour of the 2nd respondent and the sale consideration was utilized to settle the loan amount with the financial institution and the loan account was also closed.
8. The learned counsel for the appellant further submitted that the A Schedule property consist of plots and it is worth more than Rs.1.5 Crores and the original documents pertaining to the property is with the appellant and the that the appellant undertakes that he will not alienate A Schedule property. The learned counsel therefore contended that the order passed by the Court below directing to detain the appellant in the civil prison, may not be warranted on the facts of the present case and that this Court can record the undertaking of the appellant to the effect that the A Schedule property
