IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-9-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH OSA No.264 of 2009 and MP No.1 of 2009 The Manager State Bank of India Commercial Branch SAM Branch, Anna Salai Chennai 600 002. .. Appellant/III Respondent vs 1.Ananthalakshmi 2.K.Namitha Bhuvaneswari 3.Renuka Devi 4.Nirmala Vale 1 to 4 respondents represented by their Power of Attorney E.Pragdeeswaran 5.K.Raghavaram 6.K.Sivaram Selvakumar .. Respondents/1 to 4 Applicants and 1 & II Respondent Original side appeal preferred under Order 36 Rule 11 of O.S. Rules against the order of this Court made in O.A.No.65 of 2008 in C.S.No.27 of 2008 dated 14.8.2008. For Appellant : Mr.N.R.Chandran Senior Counsel for Mr.K.Sankaran For Respondents : Mr.V.Nagusah for RR1 to 4 JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges an order of the learned Single Judge of this Court granting ad-interim injunction in favour of the respondents 1 to 4/plaintiffs in a suit filed by them in C.S.No.27 of 2008. 2.The Court heard the learned Senior Counsel for the appellant and also the learned Counsel for the respondents 1 to 4. https://hcservices.ecourts.gov.in/hcservices/ 3.The appeal has arisen under the following circumstances: (a) The plaintiffs 1 to 4 are the daughters and the defendants 1 and 2 are the sons of one Mr.R.Kaliappan who died intestate on 5.8.1991, leaving behind the defendants 1 and 2 and also his wife Sarojini Devi. His wife also died leaving intestate on 20.9.1999. The property of Kaliappan by operation of law was devolved upon the plaintiffs and the defendants 1 and 2 and their mother, and thus each of the plaintiffs is entitled to 1/7th share in the properties of Kaliappan. The plaintiffs are also entitled to 1/7th share each in the immovable property namely house, ground and premises in Plot No.875, J-24, New No-J-1, 17th Main Road, Anna Nagar, Madras, more fully described in the Schedule. While so, the Schedule property was furnished as security by the said Sarojini Devi and the defendants 1 and 2 to the appellant/third defendant bank in respect of the loan obtained by M/s.Kalsar Marketing Agency P Limited and M/s.Kalsar Petro Products P Limited. Due to non payment of the dues, a claim was made by the third defendant bank, and an ex-parte decree came to be passed. The entire property was brought for sale, and a notice of attachment was issued by the Recovery Officer on 6.10.2004, intimating the attachment of the entire schedule property restraining the transfer till the sums of Rs.1,39,87,220.13 and Rs.2,44,53,439.53 are paid. (b) The respondents 1 to 3/plaintiffs 1 to 3 filed the third party application in I.A.No.577 of 2004 in DRC No.123 of 2004 and IA No.579 of 2004 in DRC No.124 of 2004 before the Recovery Officer, DRT II, to raise the said attachment order in respect of their 4/7th share in the schedule property belonging to the plaintiffs. On dismissal of the above applications by the Recovery Officer, the plaintiffs preferred M.A.Nos.5 and 6 of 2006 respectively. The Presiding Officer, DRT II, affirmed the order of the Recovery Officer holding that the plaintiffs were to establish their right only before the Civil Court. As against the said orders, the plaintiffs 1 to 3 filed MA Nos.208 and 209 of 2007 respectively, on the file of the Debt Recovery Appellate Tribunal. In the meantime, the third defendant bank, the appellant herein, took steps to bring the entire property for auction sale to recover the dues payable by the first and second defendants. Under such circumstances, the plaintiffs filed the instant suit seeking division of their 4/7th share in the suit property. While doing so, they preferred the instant application to restrain the third defendant bank to bring the plaintiffs' 4/7th share in the suit property for auction sale for the dues payable by the defendants 1 and 2. (c) The learned Single Judge after giving an opportunity to the defendants to put forth their objections and after hearing the learned Counsel on either side, took the view that it is a fit case where injunction has got to be granted and accordingly granted interim injunction. Hence this appeal. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.N.R.Chandran would submit that the respondents 1 to 4 had no subsisting right, title or interest in the suit property during the pendency of the suit for partition against the appellant; that the respondents 5 and 6 and their mother Sarojini Devi had https://hcservices.ecourts.gov.in/hcservices/ already produced a legal heirship certificate dated 11.3.2007, and availed loan stating that they were the only legal heirs of late Kaliappan; that the said certificate had not been rejected by the Tribunal; that the statement of claim of respondents 1 to 4 was not supported by any material evidence; that the defendants 1 and 2 had not affirmed the claim of the respondents 1 to 4/plaintiffs in any manner by affidavit or otherwise; that the plaintiffs had not been staying in the suit property; that under the circumstances, they had lost their right to claim on the ground of limitation since their father had passed away as early as 1991, and the claim before the Recovery Officer was lodged much later in 2007; that the legal heirship certificate was issued by the Tahsildar, Saidapet, while the earlier one produced by the defendants 1 and 2 and their mother was issued by the Tahsildar, Egmore, Nungambakkam Taluk, within whose jurisdiction the suit property was situated; that there were two legal heirship certificates; that in such a case, the Tribunal constituted under the Act has held that the respondents 1 to 4 have to produce the succession certificate; that instead of directing the respondents in that manner, the learned Single Judge granted injunction against the sale of the security; that it has barred the right of the appellant bank to effect recovery of the decreetal amount which is more than Rs.4 crores as on date; that the injunction granted by the learned Single Judge lacked merit; that the suit itself was a collusive one filed at the instance of the respondents 5 and 6; that the appellant was a public institution; that the appellant was greatly prejudiced in the recovery of the amount due and put to loss due to the injunction granted; that it is pertinent to point out that the respondents 1 to 4 were married daughters of Kaliappan and having settled elsewhere, the present suit has been filed by them without claiming any right from 1991; and that in such circumstances, the order of the learned Single Judge has got to be set aside. 5.The Court heard the learned Counsel for the respondents 1 to 4. 6.It was a suit where the plaintiffs have sought for 4/7th share in an immovable property which admittedly belonged to one Kaliappan who died intestate on 5.8.1991. As could be seen from the available materials, the entire property was brought for sale pursuant to an ex-parte decree made, and an attachment was also made on 6.10.2004 by the Recovery Officer for the recovery of the loan advanced by the appellant/third defendant bank to M/s.Kalsar Marketing Agency P Limited and M/s.Kalsar Petro Products P Limited for which the defendants 1 and 2 and their mother Sarojini Devi have furnished the immovable property in question as security. The said attachment order was sought to be set aside by the plaintiffs 1 to 3 by filing applications before the Recovery Officer who dismissed the same. They were appealed against in MA Nos.5 and 6 of 2006 before the DRT, and those appeals were also dismissed. Thereafter the plaintiffs have filed MA Nos.208 and 209 of 2007 before the Debt Recovery Appellate Tribunal, wherein the DRAT made an order of dismissal of the appeals pointing out that the DRT constituted for the specific purpose of adjudicating upon the dispute between the bank and financial institutions on one hand and the borrowers and guarantors on the other, cannot decide any civil dispute with reference to the https://hcservices.ecourts.gov.in/hcservices/ claim of a share in the mortgaged properties, and hence the appellants will have to work out their rights before a competent forum in accordance with law, and thus there was no illegality or irregularity found in the impugned orders so as to reverse the same and has dismissed the appeals. In such circumstances, the instant suit C.S.27 of 2007 was filed by the respondents 1 to 4 seeking the relief of partition claiming 4/7th share in the property. They have also filed the legal heirship certificate. 7.It is also not in controversy that they are also the daughters of Kaliappan who was the owner of the property, and he also died intestate. It is not the case of the appellant/third defendant bank that the money was advanced to the plaintiffs, nor they stood as guarantors or furnished the property in question as security for the loan availed by the said companies. In the proceedings initiated by the appellant/third defendant as stated above, the plaintiffs admittedly were not shown as parties; but, the entire property was furnished as security by the defendants 1 and 2, the sons, and also Mrs.Sarojini Devi, the wife of the said Kaliappan, while the plaintiffs 1 to 4 by operation of law were entitled to 4/7th share. Since the entire property was attached and brought for sale, there arose a necessity for the plaintiffs to file the suit seeking for division of the property and the instant application seeking interim injunction to restrain the third defendant/appellant bank from bringing their 4/7th share in the Schedule property for sale. Now the contention put forth by the appellant's side that the plaintiffs did not have subsisting interest in the property cannot be countenanced. Apart from that, the other contention that at the time of furnishing the security, the defendants 1 and 2 and also Sarojini Devi furnished a legal heirship certificate wherein they were shown as the only legal heirs of Kaliappan cannot be a reason to deny the relief of interim injunction while the plaintiffs were able to show that they were the daughters of Kaliappan who died intestate, and they were also entitled to the respective shares by operation of law. 8.Apart from the above, the contentions put forth by the learned Senior Counsel for the appellant that the property could be sold in auction, and the bank is also prepared to deposit 4/7th share of the sale proceeds cannot be accepted even for a moment while the plaintiffs 1 to 4 have made out a prima facie case that they are entitled to 4/7th share in the property and they had nothing to do with the transaction in question. Therefore, the appellant/third defendant has got to be necessarily restrained from bringing their 4/7th share in the Schedule property for sale. The learned Single Judge was perfectly correct in granting interim injunction as asked for. 9.In the result, this original side appeal is dismissed as devoid of merits. The parties shall bear their own costs. Consequently, connected MP is also dismissed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv To. The Sub Assistant Registrar, (O.S) High Court, Madras. + 1 CC to Mr.N.Nagusah,Advocate,SR.44996 + 1 CC to Mr.D.Mukundan,Advocate,SR.44706 OSA No.264 of 2009 KA(CO) EM/17.9 https://hcservices.ecourts.gov.in/hcservices/