CRP.No.836 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On : 05.08.2022

Delivered On : 27.01.2023

CORAM :

THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP

Civil Revision Petition No.836 of 2021

and

C.M.P.No.6922 of 2021

1. D.Venkatesh

2. R.A.Devarajan

3. D.Kavitha

.. Petitioners

Versus

1. V.C.G.Siva Prakasam

2. V.C.Gurupriya

.. Respondents

Civil Revision Petition filed under Article 227 of Constitution of India

against the fair and decretal order dated 18.01.2021 in I.A.No.02 of 2020 in

C.O.S.No.61 of 2020 on the file of the learned Principal District Judge, Salem.

For Petitioners

:

Mr. S. Kalyanaraman

For Respondents

:

Mr. M.R.Thangavel

O R D E R

This Civil Revision Petition is filed against the fair and decretal order

dated 18.01.2021 passed in I.A. No. 02 of 2020 in C.O.S. No. 61 of 2020 on

the file of the learned Principal District Judge, Salem.

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CRP.No.836 of 2021

2.The Defendants in C.O.S. No. 61 of 2020 on the file of the learned

Principal District Judge, Salem are the Revision Petitioners. The Plaintiffs,

who have instituted the said suit are the Respondents herein.

3.The Plaintiffs have instituted the suit for recovery of a sum of

Rs.51,61,874/- with subsequent interest at 12% per annum on Rs.49,000/-

from the date of suit till realisation. As per the plaint averments, the

Defendants have been closely acquainted with the plaintiff and taking note of

such proximity of relationship, when the Defendants sought for financial help,

the Plaintiffs borrowed money on interest from Tata Capital Housing Finance

Limited and IDBI Bank Limited and paid it to the Defendants 1 to 3 by way of

four cheques to the tune of Rs. 49 lakhs. It was stated that the Defendants

have agreed to clear the entire loan amount in 12 months. However, as per

their assurance, they did not repay the borrowed amount. The Plaintiffs also

came to know that the Defendants have sold two house plots vide sale deed

dated 02.09.2020 for Rs.32,00,000/- but they did not pay the amount borrowed

from the Plaintiffs. After repeated demand, the Defendants paid a sum of

Rs.8,14,246/- by remitting it in the bank account of the plaintiff, leaving the

balance sum payable by them. It is in those circumstances, the Plaintiffs have

filed the suit.

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4.Pending suit, the Plaintiffs have also filed I.A. No. 2 of 2020 in C.O.S.

No.61 of 2020 under Order XXXVIII,, Rule 5 of the Code of Civil Procedure

(in short CPC) to attach the property morefully set out in the petition, before

judgment.

5.It appears that the trial Court passed an order on 04.12.2020 directing

the Defendants to furnish security for the suit claim of Rs.51,61,874/-. On

notice, the Defendants/Revision Petitioners herein have voluntarily executed

security for production of property in Form No.VI as per Order XXXVIII,

Rule 5 of CPC. In other words, the Defendants themselves have offered as

security the property in their name. However, the Plaintiffs objected to the

same by stating that the property offered as security was subjected to mortgage

with Karur Vysya Bank Limited for a sum of Rs.1,15,00,000/- on 09.01.2019

vide document No.89 of 2019. Therefore, the Plaintiffs prayed the trial Court

to order attachment of the properties mentioned in the schedule of the Petition

in IA No. 2 of 2020.

6.Taking note of the submissions of the counsel for both sides, the trial

court pointed out that the security bond furnished by the Defendants is not as

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CRP.No.836 of 2021

contemplated as per Civil Rules of Practice. The trial court also concluded

that the Defendants are attempting to create encumbrance over the petition

mentioned property and therefore, to protect the interest of the

Plaintiffs/Respondents herein, has allowed I.A.No. 2 of 2020 and attached the