V BALAKRISHNAN Vs. T M GOWRIESHAN

JUDGEMENT

(1.) Application filed by the applicant/plaintiff under O. 16, Rule 8 of Original Side Rules read with O. XXXVIII, Rr. 1 to 4 of Civil Procedure Code to issue warrant to arrest the respondents and bring them before the Court to show cause why they should not furnish the security for the suit claim and commit them to civil prison if they fail to furnish the security towards the suit claim.

(2.) The case in brief is as follows :The applicant/plaintiff filed a suit for recovery of a sum of Rs. 51,21,932/- towards principal and a sum of Rs. 14 lakhs and odd towards interest from 11-5-1998 to 5-7-1999 aggregating a sum of Rs. 65 lakhs and odd. The applicant also filed O.A. No. 2563 of 1999 to attach the properties namely, door No. 6, Bishop Garden, Greenways Road, Adyar, Chennai and also door No. 7, Bishop Garden, Greenways Road, Chennai. The first respondent filed an undertaking affidavit that he will not alienate the property bearing door No. 7 and he has given the market value of the property as Rs. 1.22 crores. On the basis of the undertaking affidavit, this Court recorded the same and closed the application by an order dated 13-10-1999; but to the surprise M/s. Balaji and Company published a notice stating that the properties were mortgaged to Purasawalkam Permanent Fund Limited and the same will be brought for public auction on 2-12-1999. The first respondent purposely suppressed the existence of the mortgage in the undertaking affidavit and thereby mislead the Court to record the undertaking. M/s. Balaji and Company sold both the properties to realise the mortgage amount and the balance amount has been appropriated for the income-tax dues of the respondents. Now, both the properties are not available for realisation of decree amount. The only intention of the respondents is to cheat the applicant by not paying the amount and to leave no properties to realise the decree amount in future. The applicant apprehend that the respondents may leave India at any moment with an ulterior motive to escape from the liability. They do not own any other immovable property in India. Only with a mala fide intention to cheat the applicant, the first respondent gave a false undertaking to escape the liability and delay the execution of recovery. It is just and necessary to issue a warrant to arrest the respondents and bring them before the Court.

(3.) The first respondent filed a counter-affidavit, denying the various allegations. The house bearing door No. 6, Bishop Garden, Greenways Road, Adyar was mortgaged to Purasawalkam Permanent Fund Limited and the house bearing door No. 7 was mortgaged to Park Town Benefit Fund Limited by separate registered mortgage deeds. The applicant is well aware of these things. The first respondent gave the undertaking that he will not alienate the property comprised in door No. 7 pending disposal of the suit. The applicant is well aware of the fact that the said property was mortgaged to Park Town Benefit Fund Limited. No undertaking was given by him relating to the house bearing door No. 6. The mortgage was effected through a registered mortgage deed and, as such, the applicant is well aware of the same. Now, door No.6 has been auctioned by the Purasawalkam Permanent Fund Limited and similarly door No. 7 was also brought for auction in order to realise the mortgage debt. He has nothing to do with the auction and he has not received any part of the sale proceeds. He has not violated the undertaking given to the Court. The applicant knew fully well that the property had been mortgaged, but have not impleaded the mortgagees as parties to the suit and the application. He had no intention of leaving the country in the near future and the apprehension is only imaginary. Hence, the application is liable to be dismissed.3A. Heard the learned counsel of both sides.