Aishwarya Feeds v. Vinayaga Capitalsa.Partnership

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.12.2021

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.M.A.No.3511 of 2021 and C.M.P.No.20350 of 2021 1.M/s.Aishwarya Feeds, A Partnership Firm, Rep. By its Partners, R.Gunasekaran and N.Shanthi No.4/132, 4th Street, K.M.Mohanur Road, Vagurampatti, Sanyasikaradu Post, Namakkal District.

2.R.Gunasekaran 3.G.Shanthi ... Appellants Vs M/s.Vinayaga Capitals, A Partnership Firm Registered Under the Indian Partnership Act, Rep. By its Managing Partner R.P.Rajendran No.169C, Thuraiyur Main Road, Namakkal.

... Respondent PRAYER: Civil Miscellaneous Appeal filed under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908, praying to allow the Civil Miscellaneous Appeal, by setting aside, the docket order dated 29.11.2021, passed in I.A.No.5 of 2021 in O.S.No.274 of 2021, on the file of the Sessions Judge/ Special Court for Trial of Cases under SC/ST (PoA) Act, Namakkal.

For Appellants : Mr.Jagadish for Mr.S.Senthil For Respondent : Mr.R.Rajarajan

J U D G M E N T

This Civil Miscellaneous Appeal is against the order granting an order of interim injunction, restraining the

defendants in the suit, from alienating or encumbering their immovable properties.

2. The plaintiff sued for recovery of a sum of Rs.85,00,000/- with subsequent interest. The plaintiff sought for an injunction restraining the defendants from alienating the properties on the ground that the defendants are attempting to alienate the properties with a view to delay or defeat the claim of the creditors.

3. The injunction sought for would fall within clause (b) of Rule 1 of Order XXXIX of the Code of Civil Procedure. The trial Court initially ordered notice and that order was challenged in Revision before this Court. I had by order dated 23.11.2021, directed the trial Court to re-examine the prmia facie case, in the light of the claim made. Thereafter the trial Court on, 29.11.2021, had granted an interim injunction. Now, it is the turn of the respondents/ defendants to come up with an appeal.

4. Mr.C.Jagadish, learned counsel appearing for the appellant would submit that he is ready to furnish immovable property security for the value of the suit, to the satisfaction of the trial Court or he would even deposit the entire suit claim before the trial Court as security, since the property now subject matter of injunction application, is already mortgaged with the Bank and because of the injunction order, the Bank is threatening to recall the loan.

5. Though Mr.Rajarajan, learned counsel appearing for the respondent would have some reservations on the ground that there are other suits pending between the parties, I do not think, I can take into account the pendency of other suits. Injunction was sought for only to secure the suit claim and if the appellants/ defendants in the suit furnish security for the suit claim or deposit the suit claim, there will be no justification to continue the injunction.

6. In view of the above, the following order is passed: The appellants will be at liberty to furnish immovable property security to the satisfaction of the trial Court for the suit claim or they will deposit the entire suit claim before the trial Court. On either of these two alternatives happening ie., the trial Court accepting the security offered by the appellants herein or on the appellants depositing the entire suit claim of Rs.85,00,000/- to the credit of the suit, the injunction order will stand vacated. The

injunction order will be in force till such time.

7. This Civil Miscellaneous Appeal is disposed of with the above observations. No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar dsa To The Sessions Judge, Special Court for Trial of Cases under SC/ST (PoA) Act, Namakkal.

+1cc to Mr.S.Senthil, Advocate, S.R.No.68479 +1cc to Mr.R. Rajarajan, Advocate, S.R.No.68791 CMA No.3511 of 2021 SMI(CO) CT 05/01/2022