THE HIGH COURT OF JUDICATURE AT MADRAS Dated:16.06.2014 Coram THE HONOURABLE Mr.JUSTICE M.JAICHANDREN AND THE HONOURABLE Mr.JUSTICE M.VENUGOPAL O.S.A.No.337 of 2013 and O.S.A.No.291 of 2013 and M.P.No.1 of 2013 *** Sundaram Fasteners Limited Represented by its Executive Director & Secretary - Mr.V.G.Jaganathan No.98-A, Dr.Radhakrishnan Salai, Mylapore, Chennai 600 004..Appellant/Applicant/Plaintiff in both OSAs.V.S.Venkatesan S/o.Late Sarangapani Shrishti Apartments No.240, I Cross Street, III Main Road, Natesan Nagar, Virugambakkam Chennai 600 092..Respondent/Respondent/Defendant Prayer: Appeals filed under Order XXXVI Rule 11 of the Original Side Rules read with Clause 15 of the Letters Patent as against the order and decretal dated 02.01.2013 in A.No.3488 of 2012 in C.S.No.507 of 2012 and O.A.No.677 of 2012 in C.S.No.507 of 2012 passed by the Learned Single Judge.
For Appellant : Mr.P.R.Raman For Respondent : Mr.D.Prabhu Mukunth For M/s.N.Rangasamy COMMON JUDGMENT
M.VENUGOPAL, J.
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/Plaintiff takes a plea that the Learned Single Judge erred in linking the fact of the Respondent/Defendant depositing his title deeds with the Appellant to that of disposing of his properties and in fact, despite the depositing of title deeds, the Respondent/Defendant can dispose of the properties, thereby defeating any Decree that may be passed in favour of the Appellant in the suit in C.S.No.507 of 2012 pending on the file of this Court.
8.Lastly, it is the submission of the Learned Counsel for the Appellant that the Learned Single Judge, without any valid reason, had come to the conclusion that A.No.3488 of 2012 (filed by the Appellant/Applicant/Plaintiff) is nothing but misuse of process of Court and it was filed with some ulterior motive.
Added further, in this regard, the Learned Counsel for the Appellant projects an argument that nowhere from the materials placed before the learned Judge can such conclusions be arrived at in A.No.3488 of 2012.
Submissions of the Appellant/Applicant/Plaintiff in O.S.A.No.291 of 2013: 9.The Learned Counsel for the Appellant submits that the order of the Learned Single Judge in dismissing O.A.No.677 of 2012 in C.S.No.507 of 2012 is contrary to Order XIV Rule 8 of the Original Side Rules, 1956 and Order XXXIX Rule 1 and 2 of the Civil Procedure Code.
10.The Learned Counsel for the Appellant forcefully contends that the Learned Single Judge had committed an error in not appreciating that the Order XXXIX Rule 1 and 2 C.P.C.can be invoked in suits for recovery of money and that the Original Application Schedule property need not be the subject matter of the suit.
11.Continuing further, it is the submission of the Learned Counsel for the Appellant that the Respondent/Defendant could not have purchased the property without embezzling the Appellant/ Plaintiff's funds and indeed, he had purchased these properties only out of the illegal gain made by embezzling the funds of the Appellant, the recovery of which or the subject matter of suit.
12.The Learned Counsel for the Appellant/Plaintiff takes a categorical stand that the Learned Single Judge erred in observing that once the schedule property was not the subject matter of the suit, no injunction could be granted under Order XXXIX Rule 1 and 2 of the Civil Procedure Code.
13.Advancing his arguments, the Learned Counsel for the Appellant contends that O.A.No.677 of 2012 (seeking the relief of interim injunction) was filed in order to ensure that the subject properties were preserved and no third parties interest were granted.
Moreover, the Learned Counsel for the Appellant takes a stand that unless the existing order of injunction which was not passed exparte but was ordered after the Respondent/Defendant entered appearance in the matter was made absolute, the Appellant would not be in a position to recover huge suit amounts from the Respondent/ Defendant.
14.Finally, the Learned Counsel for the Appellant contends that the Learned Single Judge erred in linking the fact of the Respondent/ Defendant depositing his title deeds with the Appellant/Plaintiff to that of disposing of his properties and despite deposit of title deeds, the Respondent/Defendant can dispose of the properties, thereby defeating any Decree that may be passed in favour of the Appellant in the main suit.
Respondent's Contention (in both the Appeals).15.Conversely, it is the submission of the Learned Counsel for the Respondent/Defendant that the Respondent/Defendant filed a suit for declaration in O.S.No.2967 of 2012 before the Vacation Court of the City Civil Court, Chennai seeking the relief of declaration relating to his dismissal/termination order dated 21.05.2012.
16.Proceeding further, it is the contention of the Learned Counsel for the Respondent/Defendant that the Respondent/Defendant was called orally on 21.10.2011 by V.Kamatchinathan, Senior General Manager (Finance) and Meenakshisundaram, President (Finance) to his cabin and threatened him with coercion and undue influence to confess about the queries made in the External Audit Report and further, he was informed that if he do not accept to confess, he would be terminated from service and would be handed over to police.
As such, left with no other option, the Respondent/Defendant wrote a confession letter on 21.10.2011 that he would made good loss to the company as it was dictated by the aforesaid officials of the Appellant/ Plaintiff's company.
Furthermore, the Respondent/Defendant was threatened to handover his immovable properties documents such as Certified Copy of Sale Deed dated 27.10.2003 registered as Document No.9398 of 2003 of his wife's plot/house where he was residing now since the original Sale Deed was mortgaged by Dena Bank and the original Sale Deed of house at Kumbakonam.
In fact, he handed over the original Sale Deeds in the name of his wife (Virugambakkam property) dated 30.06.2004 and 27.10.2003 and the original Sale Deed dated 05.09.2008 (jointly in his name and his wife at Kumbakonam) to one V.M.Ravikumar, the Senior General Manager I.R.namely, the 7th Defendant in the Original Suit in O.S.No.2967 of 2012.
17.The prime contention of the Learned Counsel for the Respondent/Defendant is that for no valid reasons, the Appellant/ Plaintiff is in illegal possession of Sale Deeds pertaining to his properties and in fact, he had handed over the original Sale Deed of wife's apartment at Virugambakkam to the 7th Defendant in Original Suit in O.S.No.2967 of 2012, who had acknowledged the receipt of his Sale Deeds relating to immovable properties.
Moreover, the show cause notice also confirmed the receipt of Sale Deeds of his properties.
18.The Learned Counsel for the Respondent/Defendant submits that the Respondent/Defendant was suspended from service on 21.10.2011 without giving an opportunity to him to reply or to defend to his suspension and added further, the Enquiry Officer had rendered findings of domestic enquiry in a biased manner.
19.The Learned Counsel for the Respondent/Defendant submits that the power under Order XXXVIII Rule 5 of the Civil Procedure Code is an external one and indeed, the Appellant/Plaintiff should make a specific averment to obtain an order for furnishing security or Attachment Before Judgment and in this regard, to lend support to his contention, he relies on the Division Bench Judgment of this Court in M.K.Hariprasad, Sole Proprietor, Yehem Agency, Chennai 600 084 and another V.
Uma Keshav, 2010 (1) MWN (Civil) 432 at pages 434 & 435, wherein, in paragraph No.11, it is observed and held as follows: 11.It would be quite clear that either filing of a Suit for recovery of money or the averment in the affidavit cannot by itself suffice for granting the relief of attachment before judgment.
In order to get the relief of direction for furnishing security or in default, attachment before judgment, the plaintiff who seeks the remedy must make a specific averment which would warrant for getting such a relief.
In the case on hand, it is quite absent in the considered opinion of this Court.
It is a drastic and extraordinary power vested in the hands of the Court under Order 38, Rule 5 of C.P.C.The Court need not go into at this stage whether the claim is barred by limitation or not.
So long as ground is not made out for exercising the powers of the Court under Order 38, Rule 5, the learned Single Judge was perfectly correct in dismissing the Applications.
Both the Appeals do not require admission.
Accordingly, they are dismissed.
No costs.
Consequently, connected MP is also dismissed. 20.He also cites the decision of the Hon'ble Supreme Court in Raman Tech.
& Process Engineering Company and another V.
Solanki TradeRs.(2008) 2 Supreme Court Cases 302, at page 303, wherein, it is observed and laid down as follows: The object of supplemental proceedings is to prevent the ends of justice being defeated.
The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables.
However, before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant.
Further, he needs to establish that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed.
The power under Order 38 Rule 5 CPC is a drastic and extraordinary power.
Such power should not be exercised mechanically or merely for the asking.
It should be used sparingly and strictly in accordance with the Rule.
The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt.
Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the 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 the defendants for out-of-court settlements under threat of attachment.
A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him.
Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. 21.At the out set, it is to be pointed out that the Appellant/ Plaintiff has filed a suit in C.S.No.507 of 2012 against the Respondent/ Defendant claiming a sum of Rs.2,01,62,274/- together with interest at 18% p.a.from the date of filing of the Plaint till the date of realisation.
22.The plea of the Appellant/Plaintiff is that the Respondent had indulged in such fraudulent acts for more than 12 years and it came to Appellant/Plaintiff's knowledge only on 21.10.2011, when, pursuant to the Special Audit Report, the Respondent/Defendant was questioned on his fraudulent acts by the Appellant/Plaintiff's officials and he admitted his guilt and submitted a letter in this regard on 21.10.2011.
23.It comes to be known that the Appellant/Plaintiff held domestic enquiry against the Respondent/Defendant and the punishment of dismissal from service was awarded to the Respondent/ Defendant, through an order dated 21.05.2012.
That apart, the stand of the Appellant/Plaintiff is that the losses caused by the Respondent/ Defendant to the Appellant/Plaintiff were clearly established in the domestic enquiry.
24.The stand of the Respondent/Defendant is that he had filed a suit for declaration challenging his termination from service on numerous grounds in O.S.No.2967 of 2012 on the file of VII Assistant City Civil Court, Chennai and that he had not made any loss to the Company at any point of time and there was no evidence to show that the said loss was incurred by him.
Furthermore, he had handed over the Original Sale Deed of his wife's apartment at Virugambakkam V.M.Ravi Kumar, the Senior General Manager I.R.of the Appellant/ Applicant, who had acknowledged the receipt of Sale Deeds of immovable properties.
Moreover, the said Sale Deeds are in possession of the Appellant/Applicant.
25.At this juncture, a perusal of the Jugde's Summon in O.S.A.No.677 of 2012 in C.S.No.507 of 2012 shows that the properties mentioned are Items 1 and 2, a plot at Virugambakkam, Chennai 600 092 and land and building at Thiruvidaimarudur Ooratchi Onriam, Srinivasa Nallur Village, Kumbakonam SRO, Thanjavur District.
Likewise, the very same properties shown as Item Nos.1 and 2 in Application No.677 of 2012 were shown as properties in A.No.3488 of 2012.
26.In regard to the grant of interim injunction, a Court of law is to see that there is a bona fide contention between the parties, and then, on which side, in the event of success, will lie the balance of inconvenience if the injunction is not granted.
Also, a Court of Law is to see whether a litigant has approached the Court has a plausible case and whether there is a possibility of such case succeeding at the trial.
Moreover, the balance of convenience, inconvenience and other relevant matters may also be taken into account by a Court of Law.
In short, a Court of Law is to consider prima facie case, balance of convenience, irreparable loss for the grant of interim injunction.
Every piece of evidence produced by either party has to be taken into account in determining the existence of a prima facie case to justify issuance of an order of temporary injunction/interim injunction.
In making out a prima facie, it is open to the Plaintiff to establish that it has a fair question to raise as to the existence of right which it alleged and can satisfy the Court that the property in issue should be preserved in its present actual condition unless such question is disposed of.
Indeed, mere pleading does not make a strong prima facie case.
27.At this stage, the Learned Counsel for the Appellant/Plaintiff refers to the letter of the Respondent/Plaintiff dated 17.11.2011 addressed to V.M.Ravikumar, Senior General Manager IR of Appellant/Plaintiff Company wherein the Respondent/Defendant had handed over his property documents as surety towards repayment to the company, which was duly acknowledged and further submits that the Respondent/Defendant had created an 'Equitable Mortgage' in favour of the Appellant/Plaintiff to secure the amount.
In this connection, it cannot be forgotten that Order XXXIX Rule 1 enjoins that when the Defendant threatens to dispossess the Plaintiff or otherwise cause injury to the Plaintiff in relation to any property in dispute in the suit, the Court may grant a temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the Plaintiff or for the purpose of preventing the causing of injury to the Plaintiff in relation to any property in dispute.
Therefore, the relief of injunction is a preventive relief and ordinarily, the same is granted, by a Court of Law, taking note of 'Equity', as opined by this Court.
28.The main stand of the Appellant/Plaintiff is that the Enquiry Officer, after conducting a proper enquiry, by adhering to the Principles of Natural Justice, had ultimately held that the Respondent/Defendant guilty of the misconducts with which he was charged and ultimately, the Respondent/Defendant imposed with a punishment of dismissal from service by the Appellant/Plaintiff's Company, through its order dated 21.05.2012 and in fact, the losses caused by the Respondent/ Defendant to the Appellant/Plaintiff were proved in the departmental enquiry held against the Delinquent.
In effect, the Appellant/Plaintiff's case is that the Respondent/Defendant, while working under the Appellant/Plaintiff, embezzled the amount by citing fictitious vendORS.suppliers and also showed payment to them and misappropriated the money.
Also that, the only manner by which atleast the part of the money can be recovered from the Respondent/Defendant is by selling his properties in question and if these properties are not secured, then, he would alienate them and defeat the interests of the Appellant/Plaintiff.
In this connection, this Court relevantly points out that in the Affidavit in O.A.No.677 of 2012, in paragraph 27, the Appellant/Plaintiff had stated as follows: 27..The respondent is already trying to dispose of the properties.
Unless this is prevented, it will cause great hardship and prejudice to the applicant.
If the respondent is not restrained from disposing of the properties, the applicant will not be able to recover the suit claim. 29.Coming to the aspect of the Appellant/Plaintiff seeking for issuance of an order by this Court, in A.No.3488 of 2012, in directing the Respondent/Defendant to furnish security to an extent of Rs.2,01,62,274/-, within a time limit fixed by this Court, failing which, pass an order of Attachment Before Judgment of the immovable properties of the Respondent [filed under Order XIV Rule 8 Original Side Rules read with Order 38 Rule 5 of the Civil Procedure Code]., it is to be pertinently pointed out by this Court that the Power to attach is not to be exercised so lightly and without concrete proof of mischief aimed at.
In fact, vague allegations are not sufficient.
Before exercising jurisdiction under Order 38 Rule 5 of Civil Procedure Code and passing orders for the attachment of properties before judgment, a Court of Law is to satisfy itself primarily about the real certainty of the Plaintiff's success and of the existence of a serious danger with the Defendant is performing all acts with dishonest intention of defeating or delaying possible Decree.
30.It is to be remembered that an 'Attachment' itself does not create any charge in property.
Also that, by reason of an 'Attachment', no Decree is passed.
Moreover, 'Attachment Before Judgment' is a matter of relief and not procedure.
Further, an order of 'Attachment Before Judgment', passed by a Competent Court of Law, is certainly a drastic remedy and affects the basic right of a person to deal with his property.
31.It is to be noted that before passing an order of attachment under Order 38 Rule 5(1) of the Civil Procedure Code, a Court of Law is to satisfy itself that the Defendant is about to dispose of his property or is about to remove the property from its jurisdiction.
Also, a Court of Law is to see whether the Defendant is intending to do so with a view to cause obstruction or to delay the execution of any Decree that may be passed against him.
The Plaintiff must precisely set out the grounds on which the belief or apprehension can be entertained, that the Defendant is likely to dispose of or remove the property.
A mere mechanical reproduction of the wordings/ingredients of Order 38 Rule 5(1) C.P.C.in verbatim, without any supporting materials, are not adequate enough, as opined by this Court.
32.The object of Order 38 Rule 5 of the Civil Procedure Code is not to convert an unsecured debt into a secured debt.
The ingredients of Order 38 Rule 5 cannot be pressed into service as a lever for coercing the Defendant to settle the suit claim, in the considered opinion of this Court.
33.Be that as it may, in the main pending Civil Suit C.S.No.507 of 2012, the Appellant/Plaintiff has sought a relief of Money Decree to be passed against the Respondent/Defendant for a sum of Rs.2,01,62,274/- together with interest at the rate of 18% p.a.from the date of filing of the Plaint till date of realisation.
As a matter of fact, the Respondent/Defendant has filed O.S.No.2967 of 2012 (before the Vacation Court) on the file of the City Civil Court, Chennai seeking a relief relating to his dismissal from service.
One cannot ignore an important fact that the Appellant/Plaintiff in C.S.No.507 of 2012 seeks a relief of Money Decree for the sum mentioned supra, based on fraud committed by the Respondent/Defendant in regard to the siphoning of its funds, which are to be established conclusively at the end of the trial of the suit.
Also that, the Appellant/Plaintiff's plea is that the Respondent/Defendant has created an Equitable Mortgage to secure the amount.
When the Respondent/Defendant has created 'Equitable Mortgage' with the Appellant/Plaintiff, by means of deposit of title deeds (which fact is denied by the Respondent/Defendant).then, this Court is of the considered view that the Appellant/Plaintiff cannot invoke either the ingredients of Order 38 Rule 5 of the Civil Procedure Code or the ingredients of Order 39 Rule 1 and 2 of the Civil Procedure Code, because of the simple reason that the Respondent/Defendant cannot be prevented from dealing with his property just because the suit is filed.
As a matter of fact, the provisions of Order 38 Rule 5 of the Civil Procedure Code and Order 39 Rule 1 and 2 of the Civil Procedure Code are not to be resorted to either as a matter of routine or in a mechanical way.
Suffice it for this Court to point out that the aim of Order 38 Rule 5 C.P.C.is not to convert an 'Unsecured Debt' is a Secured Debt.
Furthermore, when the Respondent/Defendant is said to have created 'Equitable Mortgage' in favour of the Appellant/ Plaintiff, then, this Court is of the considered view that the Appellant/Plaintiff is not entitled to claim reliefs under Order 38 Rule 5 C.P.C.and Order 39 Rule 1 and 2 C.P.C.in Application No.3488 of 2012 and O.A.No.677 of 2012, especially when the allegations of siphoning of funds etc.which are yet to be tried or crystallised in the form of a Decree in the main suit C.S.No.507 of 2012 filed by the Appellant/Plaintiff, in the light of rebuttable stand taken by the Respondent/Defendant and also when he filed O.S.No.2967 of 2012 relating to his termination order, which is pending for final adjudication and in short, the pleadings and defence set out by the parties, are yet to be tested and established in a complete and comprehensive manner.
Looking at from any point of view, the Original Side Appeals fail.
34.In the result, the Original Side Appeals are dismissed, for the reasons assigned by this Court in these Appeals.
No costs.
Consequently, connected Miscellaneous Petition is closed.
(M.J.J.) (M.V.J.) 16.06.2014 Index :Yes Internet :Yes Sgl M.JAICHANDREN,J.
AND M.VENUGOPAL,J.
Sgl JUDGMENT
S IN O.S.A.Nos.337 and 291 of 2013 16.06.2014