Madras High Court
Sri Panduranga Brick Works Rep. By Its ... vs Gururaghavendra Foundations Pvt. Ltd. ... on 5 March, 2007
Equivalent citations: 2007(3)CTC157, (2007)4MLJ863
Author: S. Rajeswaran
Bench: S. Rajeswaran
ORDER S. Rajeswaran, J.
1. Original Application No. 839/2006 has been filed by the plaintiff for an order of interim injunction restraining the 1stdefendant, their servant, agent or any one acting under them or in any manner acting on the basis of the document styled as agreement for sale dated 12.6.2006 purportedly entered into between the plaintiff and the 1st defendant and the letter dated 13.6.2006, extracted from the plaintiff under coercion, pending disposal of the above suit.
2. Application No. 4354/2006 has been filed by the plaintiff to direct the 1st defendant to furnish security to the extent of the said claim and costs on or before a particular date to be fixed by this Hon'ble court and failing which to pass order in the nature of attachment before judgment of the property described in the schedule hereunder and communicate the same through the Sub Court, Poonamallee.
3. The plaintiff is the applicant in both the above applications.
4. The plaintiff filed the suit for the following reliefs, namely-
a) Pass a judgment and decree against the 1st defendant for Rs. 69,95,890.40 together with the agreed rate of compensation for Rs. 40,00,000/- being Rs. 14,40,000/- per year, from the date of the plaint till the date of realization.
b) Declare the document styled as agreement for sale dated 12.6.2006 purported to have been entered into between the plaintiff and the 1st defendant and the letter dated 13.6.2006 as not binding on the plaintiff.
c) for a permanent injunction restraining the 1st defendant, their servant, agent or any one acting under them or in any manner acting on the basis of the document styled as agreement for sale dated 12.6.2006 purportedly entered into between the plaintiff and the 1stdefendant and the letter dated 13.6.2006, extracted from the plaintiff under coercion.
5. The plaint averments are briefly stated as under:
6. The plaintiff is the owner of the properties, (i.e.) lands of an extent of 3 acres and 40 cents, comprised in Survey No. 101/2A1, 106/1, 106/2 and 105/2 at Adayalampattyu Village, Ambattur Taluk, Thiruvallur District. Out of the total extent of 3.40 acres, an extent of 1.75 acres are comprised in Survey Nos. 101/2A1 and 106/1 are situated on the front side, facing the road and an extent of 1.65 acres in other Survey Numbers are situated in the rear side. The 1stdefendant entered into a Memorandum of Understanding (MoU) dated 21.3.2006 with the plaintiff, agreeing to buy the entire extent of 3.40 acres for a total sale consideration of Rs. 6 crores. The 1stdefendant paid an advance of Rs. 1 crore. As the rear portion of 1.65 acres of lands were not issued with patta, the 1stdefendant persuaded the plaintiff to enter into an agreement dated 21.4.2006 for the front portion of 1.75 acres alone for a sale consideration of Rs. 4.50 crores. An advance of Rs. 50 lakhs was paid on that day and the balance of Rs. 3 crores would be paid within 30 days. The sale deed was executed on 27.4.2006, on which day the 1stdefendant handed over post dated cheques for the balance amount and for development charges amounting to Rs. 50 lakhs.
7. But when the cheques were presented, they were all returned. When contacted, the 1stdefendant insisted that he would honour the payment for Rs. 3 crores only and would not honour for Rs. 50 lakhs and even for that he wanted to make some modifications in the endorsement made in the sale agreement. On 13.6.2006, the 1stdefendant with the active help of the 2nd defendant threatened and coerced the plaintiff to permit them to make some changes in the sale agreement dated 21.4.2036 and forced the plaintiff to give a letter dated 13.6.2006 which was prepared and typed by defendants 1 and 2. The plaintiff was also compelled to sign a sale agreement dated 12.6.2006 for selling the property situated on the rear portion for a total consideration of Rs. 1,90,00,000/-. Thereafter, the 2nd defendant cleared the cheques to the tune of Rs. 2,50,00,000/- only as witnessed by the 1stdefendant. By Virtue of the above unlawful acts, according to the plaintiff, the 1stdefendant got the sale deed for the front portion at a price less by Rs. 40 lakhs, than the agreed price. Now the 1stdefendant, is compelling to return the 4 cheques issued for Rs. 40 lakhs. Even though he is entitled to the entire sum of Rs. 6 crores with proportionate increase/interest for the period of delay, the plaintiff has restricted the claim as prayed for in the suit. The applications have been filed for interim reliefs pending disposal of the suit. Notice was issued in both the applications and on 7.11.2086, this Court directed the 1strespondent to maintain status quo in O.A. No. 839/2006.
8. Heard the learned Counsel for the plaintiff and Mr. T.V. Ramanujun, the learned Senior counsel for the 1stdefendant. I have also gone through the documents filed in support of their submissions.
9. Let me consider the injunction application first, (i.e.) O.A. No. 839/2006.
10. According to the plaintiff, the sale agreement dated 12.6.2006 and the letter dated 13.6.2006 were obtained by the 1stdefendant with the active help of the 2nd defendant and therefore they are not binding on them. The plaintiff's contention is that defendants 1 and 2 pressurised, forced and coerced the plaintiff to sign those documents which were made ready by defendants 1 and 2. These are all serious allegations end if proved, would attract the penal provisions of I.P.C. But nowhere it is stated by the plaintiff that a police complaint was given by him against defendants 1 and 2, especially when the 2nd defendant is an officer of a nationalised bank. Nor any document was filed by the plaintiff to show that the matter was taken to the knowledge of the police officials. For getting an order of injunction, the plaintiff has to prima facie establish that defendants 1 and 2 coerced him to sign the documents. A prima facie case is the fist factor that should be gone into by any court to exercise its discretion in favour of the person seeking an order of interim injunction. As the plaintiff has failed to establish a prima facie case, I am not inclined to grant an order of interim injunction as prayed for.
11. Further, until the court holds that those documents were obtained under coercion and threat, and therefore they are not binding on the plaintiff, the presumption is in favour of the defendants as the signature in the documents were admitted by the plaintiff.
12. Hence I find no merits in the in junction application in O.A. No. 839/2006 and the same is dismissed. No costs.
13. Insofar as application No. 4354/2006 is concerned, the same has been filed under Order 38 Rule 6 CPC to direct the 1stdefendant to furnish security for the suit claim, failing which to pass an order of attachment before judgment of the property, purchased by the 1stdefendant from the plaintiff.
14. Under Order 38 Rule 5 CPC, defendant may be called upon to furnish security if the court is satisfied that, with the intention of obstructing or delaying the execution of any decree' that may be passed against him, the defendant is about to dispose of the whole of his property or any part. Unless the requirements of Order 38 Rule 5 is complied with, an order of attachment cannot be made, as the provision is not a lever for the plaintiff to coerce the defendant to come to terms.
15. In the affidavit filed in support of Application No. 4354/2006, it is stated by the plaintiff that in the event of the 1stdefendant alienating the suit property, he will not be able to realise the fruits of the decree and therefore his interest is to be safeguarded by an order of attachment before judgment.
16. As rightly contended by the learned Senior Counsel for the 1stdefendant, the affidavit averments filled in support of Application No. 4354/2006 do not comply with the requisite conditions as required under Order 38 Rule 5 CPC and as such an order of attachment cannot be passed in favour of the plaintiff. Hence Application No. 4354/2006 is also dismissed. No costs.