Kishore Paul vs Sahaya Sheeba

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 10.04.2018

DELIVERED ON : 09.11.2018

CORAM

THE HON'BLE MR. JUSTICE M.V.MURALIDARAN

C.R.P. (MD) (PD) No.1969 of 2017 and CMP(MD)No.9980 of 2017

Kishore Paul .. Petitioner

vs

1.Sahaya Sheeba 2.Minor K.Anbu 3.Minor K.Karvin .. Respondents (Minors 2 and 3 respondents rep. by their mother 1st respondent)

Civil Revision Petition filed under Article 227 of Constitution of India against the order dated 09.08.2017 made in I.A.No.314 of 2017 in O.S.No.130 of 2017 on the file of the learned II Additional Subordinate Judge, Nagercoil.

For Petitioner : Mr.N.Dilip Kumar

For Respondents : Mr.A.Arumugam for Mr.C.Christopher

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ORDER

This Civil Revision Petition has been filed by the petitioner

against the order dated 09.08.2017 passed in I.A.No.314 of 2017 in

O.S.No.130 of 2017 on the file of the learned II Additional Subordinate

Judge, Nagercoil.

2. The petitioner is the defendant and the respondents are

plaintiffs in the suit.

3. For the sake of convenience, the parties are referred to as

per their array in the suit.

4. The plaintiffs have filed the suit for maintenance of Rs.

6,000/- to the 1st plaintiff and Rs.7,000/- each for plaintiffs 2 and 3.

Along with the suit, the plaintiffs have filed I.A.No.314 of 2017 under

Order 38, Rule 5 CPC seeking to furnish security to the tune of Rs.

2,40,000/- and on failing which to attach the petition schedule

property alleging that the 1st plaintiff was the wife of the defendant and

the plaintiffs 2 and 3 were children. Both the children were under the

care and custody of the 1st plaintiff. The defendant was a drunkard

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and never shown love and affection for them. According to the

plaintiffs, the defendant was not maintaining them from October 2016

and only their relatives were helping them. It is alleged that as per

the Will dated 12.9.2007 executed by the defendant's father brother

Joseph Solomon, the defendant became the owner of the schedule

mentioned property after the death of Joseph Solomon. Since the

defendant was attempting to sell the schedule mentioned property, the

plaintiffs have filed the petition seeking attachment before judgment.

5. Resisting the petition, the defendant filed counter stating

that the children were not in the care and custody of the 1 st plaintiff

alone but also by the defendant. The defendant was not alcoholic and

the defendant alone made arrangement to study the children. The

relatives of the 1st plaintiff were not helping the plaintiffs. It is stated

that the defendant was having valid title over the schedule mentioned

property and he had no intention to sell the same. The defendant was

working in the post office on daily wages and was getting salary of Rs.

7,200/- per month and also was earning Rs.1,000/- per month from

binding centre. The claim of the plaintiffs for Rs.2,40,000/- per

annum was without any document and prayed for dismissal of the

petition.

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6. Upon consideration of the rival submissions, the trial

Court, allowed the petition directing the defendant to furnish security

to the tune of Rs.2,09,000/- on or before 23.08.2017, failing which

attachment order will be passed in respect of the schedule mentioned

property. Challenging the order of the trial Court, the defendant has

filed the present revision.

7. The learned counsel for the petitioner/defendant submitted

that the trial Court erred in allowing the petition filed by the plaintiffs

under Order 38, Rule 5 of CPC seeking to pass an order for furnishing

security of Rs.2,40,000/- and on failing which to attach the petition

mentioned property. He would submit that in the absence of specific

allegation, the trial Court directed the defendant to furnish security for

Rs.2,40,000/- and also the Trial Court failed to consider that the

petition mentioned property had not even been transferred in the

name of the defendant and there was also no documentary proof to

substantiate that the property had been transferred to the name of the

defendant. The learned counsel further submitted that the trial Court

failed to see that attachment before judgment cannot be granted on

vague and bald allegations that the defendant was trying to alienate

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the property with an intention to defeat and delay the interest of the

plaintiffs. The learned counsel then submitted that the defendant had

filed an undertaking affidavit stating that he will not alienate the

property and had no intention in doing so. In support, the learned

counsel relied upon the decisions in M.Padmini v. M.Anandhan,

reported in 2014 (3) CTC 792; Raman Tech. & Process Engg. Co. and

another v. Solanki Traders, reported in (2008) 2 SCC 302 and

D.Dhanalakshmi v. M/s.Radhakrishna multiple Industries (P) Ltd.,

reported in 2015-3-L.W. 315.

8. Per contra, the learned counsel for the

respondents/plaintiffs submitted that the defendant was not looking

after the plaintiffs and he was alcoholic and also often beating the 1 st

plaintiff. He would submit that as per the Will dated 12.09.2007

executed by the defendant's father's brother, the defendant became

the owner of the schedule mentioned property and in order to defeat

the plaintiffs' claim, the defendant was trying to alienate the property

to third parties and the trial Court was right in ordering furnishing of

security by the defendant for the suit claim.

9. I heard Mr.N.Dilip Kumar, learned counsel for the

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petitioner and Mr.A.Arumugam for Mr.C.Christopher, learned counsel

for the respondents and also perused the materials available on

record.

10. It is an admitted fact that the 1st plaintiff and the

defendant are husband and wife and plaintiffs 2 and 3 are their

children. It is also an admitted fact that all of them are living in the

same house bearing No.31, V.N.Volony, Irualappapuram, Kottar post,

Vaideeswaram Village, Agasteeswaram Taluk, Kanyakumari District.

11. The case of the plaintiffs is that the defendant was not

maintaining them properly and therefore, they are claiming

maintenance of Rs.6,000/- for the 1st plaintiff and Rs.7,000/- each for

the plaintiffs 2 and 3. According to the plaintiffs, the defendant

became the owner of the petition mentioned property after the death

of Joseph Solomon, who had executed the Will dated 12.09.2007 in

favour of him. Since the defendant was attempting to sell the petition

mentioned property, they have filed petition seeking furnishing of

security, failing which attachment before judgment.

12. On the other hand, it is the say of the defendant that he

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had no intention to sell the petition mentioned property and the claim

of the plaintiffs was without any documentary evidence and the trial

Court erred in directing the defendant to furnish security.

13. In the affidavit filed in support of the petition seeking

attachment before judgment, the plaintiffs have stated that the

defendant was actively trying to find a purchaser for selling the

schedule property and the sale has to be avoided in the interest of the

plaintiffs. Apart from the above said allegation, nothing has been

stated by the plaintiffs in the petition and no details have been given

as to whom the defendant was trying to sell the property.

14. By relying upon the decision of this Court in

D.Dhalakshmi v. M/s.Radhakrishna Multiple Industries (P) Ltd., supra,

the learned counsel for the defendant contended that attachment

before judgment cannot be granted based on the bald allegations. In

D.Dhalakshmi v. M/s.Radhakrishna Multiple Industries (P) Ltd., supra,

the learned Single Judge of this Court held as under:

“10. It is well settled now that attachment before

Judgment cannot be granted on vague and bald

allegations that the defendants/respondents are

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trying to alienate the property with an intention

to defeat and delay the interest of the

plaintiff/petitioner. The plaintiff/petitioner, who

seek an order of attachment before judgment,

must make specific allegation and the Courts

must be satisfied that the interest of such party

will be defeated, unless the order of attachment

is ordered. The Judgments relied on by the

learned counsel for the appellant is squarely

applicable to the facts of the present case.”

15. In Raman Tech. & Process Engg. Co. and another v.

Solanki Traders, supra, relied upon by the learned counsel for the

defendant, the Hon'ble Supreme Court held:

“5.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

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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.”

16. In M.Padmini v. M.Anandhan, supra, a Division Bench of

this Court, after extracting the decision of the Hon'ble Supreme Court

in Raman Tech. & Process Engg. Co. and another v. Solanki Traders,

supra, held:

“11.Admittedly, in this case, in the Suit for

recovery for money filed by the Plaintiff, the

Plaintiff filed an Application pending Suit in I.A.No.

116 of 2013 under Order 38, Rule 5, seeking for

attachment of the properties before Judgment. But,

a reading of the Affidavit filed at the first instance

on 28.2.2013, under Order 38, Rule 5, would show

that no specific allegation or averment has been

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made to the effect that the Defendant was making

arrangement to dispose of the whole or any part of

the property. If that be so, in the absence of any

specific allegation, it cannot be stated that Order

38, Rule 5, ingredients have been made out. .......”

17. On a perusal of the order under revision, I find that the

trial Court after saying the scope of Order 38, Rule 5 CPC and after

referring to the decision reported in 2008 (3) L.W. 744, directed the

defendant to furnish security to the tune of Rs.2,09,000/- on or before

23.8.2017 and on failing which attachment order will be passed

regarding the petition schedule property.

18. This Court is of the view that averments in the affidavit

does not satisfy the requirements of Order 38, Rule 5 of CPC and the

plaintiffs have not given particulars in the affidavit whatsoever

regarding the purported alienation. There is not even a finding by the

trial Court regarding any attempt or proposal by the defendant to

alienate the property to defeat the interest of the plaintiffs

19. In the counter filed by the defendant in I.A.No.314 of

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2017, it has been stated that he never thought to sell the property and

the allegations so made was only to create a cause of action for the

suit. It has also been stated in the counter that the defendant was

owning the only property mentioned in the petition, in which the

plaintiffs and the defendant were living. On a perusal of the long

cause title of the plaint, it is seen that the plaintiffs address and the

defendant address are one and the same.

20. It is pertinent to point out that in the grounds of revision,

particularly ground (v), the defendant had stated that he had filed an

undertaking affidavit stating that he will not alienate the petition

schedule property and had no intention in doing so. When such being

the undertaking given by the defendant, the trial Court erred in

directing the defendant to furnish security for the suit claim. It is also

pertinent to note that the suit is still pending and the quantum of

maintenance has not been finalised by the trial Court. The trial Court,

based on the bald allegations, directed the defendant to furnish

security to the suit claim.

21. In view of the undertaking given by the defendant that he

had no intention to sell the petition mentioned property and also the

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fact that the plaintiffs and the defendant were residing in the petition

mentioned property, directing the defendant to furnish security for the

suit claim does not warrant. However, the defendant is restrained

from alienating the petition mentioned property without leave of the

Court.

22. In the result:

(a) the Civil Revision Petition is allowed. The order of the

learned II Additional Subordinate Judge, Nagercoil dated 09.08.2017

made in I.A.No.314 of 2017 in O.S.No.130 of 2017 is set aside;

(b) considering the nature of the suit, the trial Court is

directed to dispose of the suit within a period of four months from the

date of receipt of a copy of this order. No costs. Consequently,

connected miscellaneous petition is closed.

09.11.2018

vsv

Index : Yes/No

To

The II Additional Subordinate Judge, Nagercoil.

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M.V.MURALIDARAN, J.

vsv

Pre-delivery order made in C.R.P. (MD) (PD) No.1969 of 2017 and CMP(MD)No.9980 of 2017

09.11.2018

http://www.judis.nic.in