IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.14432/2019(GM-CPC) BETWEEN:
1. SRI PRATHAMESH .S @ SANTHOSH S. H S/O LATE SHIVA KUMAR AGED ABOUT 38 YEARS, R/AT NO.244, RHS LAYOUT, SRIGANDHADAKAVAL NAGARABHAVI, BENGALURU-72.
2. SMT. PREMA W/O LATE SHIVA KUMAR H. S., AGED ABOUT 61 YEARS 3. SRI VINAY KUMAR S/O LATE SHIVA KUAMR H S AGED ABOUT 41 YEARS, 4. SMT. PREETHI S, D/O LATE SHIVA KUAMR H S AGED ABOUT 32 YEARS, PETITIONER No.2 TO 4 IS RESIDING AT NO.110, 1ST CROSS BEHIND HIGH TENSION LINE BASAVESHWARA BADAVANE, LAGGERE BENGALURU-58.
... PETITIONERS (BY SRI LOKESHA M. Y., ADVOCATE) AND:
SRI ASHOK KUMAR C S/O CHANDRA SHEKAR AGED ABOUT 36 YEARS, R/AT NO.159/41 RAJESWARINAGAR NEAR ST MARRY’S SCHOOL LAGGERE, BENGALURU-56005 ... RESPONDENT (BY SRI RAGHU M.N., ADVOCATE FOR C/R) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER FOUND AT ANENXURE-E, ORDER DATED 26.3.2019 PASSED ON I.A.NO.III, IN O.S.NO.613/2016 BY THE XVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH-10) AT BENGALURU THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed the present writ petition against the Order dated 26.03.2019 made in O.S.No. 613/2016 allowing I.A.No.3 filed by the plaintiff under order XXXVIII Rule 5 r/w Section 151 of Code of Civil Procedure, conditionally attaching the suit schedule property and directing the defendants to furnish security for a sum of `14,21,000/- by next date. In the event of any default to furnish security within the time prescribed, then the property was ordered to be attached and such attachment charge was ordered to be considered as second charge.
2. The respondent herein/plaintiff filed suit for the relief of recovery of a sum of `14,21,000/- with 9% interest on the principal amount, contending that the defendant Nos.1 and 2 are father and son, they are known to the plaintiff. The defendant Nos.1 and 2 approached the plaintiff for financial help of `6 lakhs on 04.04.2011. Thereafter, again defendant Nos.1 and 3 approached the plaintiff and borrowed a sum of `6 lakhs for completion of construction of their house and promised to repay the total amount of `12 lakhs after obtaining loan from the bank. Thereafter, the defendant and his father obtained mortgage loan in Mahila Co-
operative Bank Limited, on 02.10.2013 and did not make any efforts to repay the amount borrowed from the plaintiff. Therefore, plaintiff went to the extent of lodging a complaint against the defendants, but at the intervention of family, friends and well wishers, the defendants 1 and 2 agreed to repay the aforesaid amount with interest. Inspite of the same, defendants failed to repay the amount. Therefore, plaintiff filed the suit based on the promissory note executed by the defendants.
3. The first defendant filed written statement, denied the plaint averments and contended that the very suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. During pendency of the suit, the plaintiff filed I.A.No.3 under Order XXXVIII Rule 5 r/w Section 151 of Code of Civil Procedure seeking attachment of the immovable property mentioned in the schedule to the application, pending disposal of the suit, contending that the defendants have borrowed a sum of `14,21,000/- and have not repaid the said amount and it is reliably learnt that defendants are making hectic efforts to sell away the schedule property with an intention to defraud the creditors. Therefore, sought to allow the application. The defendant No.1 filed objections to the said application. The Trial Court, considering the application and objections, by the impugned order, allowed the application and conditionally attached the suit schedule property and directed the defendants to furnish security for a sum of `14,21,000/- by next date. In the event of any default to furnish security within the time prescribed, then the property was ordered to be attached and such attachment charge was ordered to be considered as second charge. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Lokesha, learned counsel for the petitioners contended that the impugned order passed by the Trial Court allowing the application filed by the respondent under Order XXXVIII Rule 5 of Code of Civil Procedure is erroneous and contrary to the material on record. He further contended that the deceased defendant No.2 has not at all taken any loan from the plaintiff and also has not executed any document. The only allegation is that the deceased defendant accompanied the first defendant at the time of alleged loan by the respondent. The suit itself is not maintainable. Therefore, the question of attaching the immovable property of the defendants would not arise at all. He further contended that the application filed by the plaintiff when the matter was posted for evidence is only with an intention to harass the defendants, the defendants have no intention to alienate the schedule property and therefore, sought to allow the writ petition.
7. Per contra, Sri Raghu, learned counsel for the respondent/plaintiff sought to justify the impugned Order and contended that it is the specific case of the plaintiff that defendant Nos.1 and 2 borrowed a sum of `12 lakhs by executing promissory note, but have not repaid the said amount with interest. Therefore, the Trial Court is justified in passing the impugned Order. Therefore, he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiff filed suit for recovery of money based on the promissory note said to have been executed by the defendants. Since the defendants failed to repay the loan borrowed from the plaintiff, the suit came to be filed. The defendants denied the plaint averments by filing the written statement. The plaintiff filed an application under Order XXXVIII Rule 5 r/w Section 151 of Code of Civil Procedure seeking attachment of the immovable property mentioned in the schedule to the application, pending disposal of the suit, contending that the defendants have borrowed a sum of `14,21,000/- and have not repaid the said amount and it is reliably learnt that defendants are making hectic efforts to sell away the schedule property with an intention to defraud the creditors. The defendant No.1 filed objections to the said application.
9. The Trial Court, considering the application and objections, allowed the application by recording a finding that, ‘the defendants have produced the copy of the memo which is filed in O.S.No.1567/2018 whereby plaintiff herein Ashok Kumar C, had filed said suit against Muniswamaiah N and in the said suit also he had filed application under Order XXXVIII Rule 5 Code of Civil Procedure seeking attachment of the property on the ground that defendant is making hectic efforts to sell away the suit schedule property with an intention to defraud the plaintiff. On the other hand, the counsel on behalf of the plaintiff had filed memo along with the receipt in the name of one Mr. Santhosh who had sought paper publication in Ad-Mag. Defendant No.1 had produced the letter issued by Mahila Co-operative Bank Limited, wherein it makes out that Shivakumar i.e., defendant No.2 had availed mortgage property loan of Rs.15 lakhs on 26.10.2013 and outstanding balance is `11,89,928/- as on 15.03.2019. So this documents makes out defendant No.2 had availed loan from Mahila Co-operative Bank Limited and he had mortgaged the immovable property. But the description of the immovable property is not shown in the said certificate, but the defendants had produced the encumbrance certificate which makes out that the property is mortgaged in favor of Mahila Co-operative Bank Limited.
10. After completion of evidence, when the matter was posted for defendants’ evidence, the plaintiff filed a memo stating that there is urgency in disposal of I.A. No.3. In view of the payment made in the office Ad-Mag in connection to sale of the property, present application was filed on 19.10.2016. But by then defendants had not filed objections and even it was not taken up for hearing as defendants had not filed their written statement’. The Trial Court further recorded that, ‘As contended by the first defendant and also bank documents, as the property is already mortgaged in favour of Mahila Co-operative Bank Limited, it cannot be sold by a public notice as first charge will be that of Mahila Co-operative Bank Limited, as charge created is also noted in the encumbrance certificate. But it does not bar this Court from attaching the property before judgment whereby, second charge can be created. So in the circumstances, in the event of default by legal heirs of second defendant to the Mahila Co-operative Bank Limited, then first preference will be that of the said bank to sell away the property and recover its debt due. After recovery of the debt due to the Mahila Co-operative Bank Limited is cleared, if further sum is still available from the sale amount, then in the event of attachment of the property decretal if any, can be recovered from the balance amount available with the first charge holder’.
11. Accordingly the impugned Order came to be passed. Though several contentions are raised by the learned counsel for the petitioners, the fact that the defendants have borrowed the loan from the plaintiff is not in dispute and it is also not in dispute that the defendants have not repaid the money borrowed. In view of the above, the impugned order is just and proper. The petitioners have not made out any case to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- JUDGE kcm