IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE M.M.SUNDRESH O.S.A.NO.413 OF 2010 Prabhakaran .. Appellant/Applicant Vs. 1.V.Rajendran 2.The Official Assignee Office of Official Assignee High Court Campus, Chennai – 15. .. Respondents/Respondents Prayer: Original Side Appeal filed under Order 36 Rule 11 of Original Side Rules read with Clause 15 of Letters Patent against the order dated 1.11.2010 in Application No.355 of 2010 in I.P.No.95 of 2009 on the file of this Court. For appellant : Mr.C.K.M.Appaji For respondents : Mr.M.Ganesan for R1 Mr.Sitrarasu, Official Assignee for R2 JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI, J.) This appeal arises out of the order dated 01.11.2010 in Application No.355 of 2010 in I.P.No.95 of 2009 on the file of this Court, whereby the learned single Judge has ordered attachment of 50 percent of appellant's salary. 2. Case of first respondent/petitioning creditor is that appellant was running chits and requested the first respondent to join his chit as one of the subscribers. Believing the words of appellant and considering that he is working as a Central Government employee, the first respondent joined one Rs.2 lakhs chit and one Rs.1 lakh chit. The first respondent was declared as Prized subscriber in respect of the above two chits. The appellant had postponed the repayment of the prized amount. Upon demand of the first respondent, the appellant had issued cheque for a sum of Rs.80,00,000/- dated 27.7.2005 bearing Cheque No.979055 drawn at Indian Bank, Velachery Branch, Chennai. On the same day, the appellant had also executed a demand promissory note for a sum of Rs.2 lakhs dated 27.5.2005 agreeing to repay on demand with interest https://hcservices.ecourts.gov.in/hcservices/ at the rate of 24 percent per annum. Case of first respondent is that inspite of several requests made by him for repayment of the chit amount, the appellant failed to pay the prized chit amount. The first respondent filed O.S.No.1594 of 2008 on the file of the 4th Assistant Judge, City Civil Court, Chennai. After contest, the said suit was decreed in favour of the first respondent on 08.07.2008 directing the appellant to pay a sum of Rs.4,53,600/- together with interest at 24% per annum on the suit claim of Rs.2,80,000/- from the date of plaint till date of realisatlion and further sum of Rs.35,038/- towards costs. Further case of first respondent is that even after decree has been passed in the said suit, appellant failed to pay the decree amount and therefore, the first respondent filed Insolvency Notice No.87 of 2008 under Section 9(2) of P.T.I. Act stating that the appellant has committed an act of insolvency. In the Insolvency Petition, the appellant did not appear and by the order dated 15.03.2010 made in I.P.No.95 of 2009, the appellant was declared as insolvent and the Official Assignee was directed to take over the assets of the insolvent and administer the estate of the insolvent in a regular manner for the benefit of creditor. 3. Being aggrieved by the exparte order of insolvency passed in I.P.No.95 of 2009, the appellant has filed application – A.No.355 of 2010 on the ground that the first respondent has obtained the order in I.P.No.95 of 2009 by suppression of material facts. The appellant also alleged that due to sudden illness, he could not appear in the Insolvency Petition and give instructions to his counsel and prayed to set aside the exparte order dated 15.03.2010. 4. In the said application, pay slip of the appellant was produced to the effect that his gross salary is Rs.45,273/- per month and after deductions his take home salary is Rs.28,518/- per month. Pointing out that as against the dues of Rs.7 lakhs, the appellant has paid only Rs.50,000/- and that he is not taking further steps to arrange for payment, the learned single Judge ordered attachment of 50% of the appellant's salary. Being aggrieved by the said order in Application No.355 of 2010, the appellant has come forward with this appeal. 5. Heard the learned counsel for the appellant. Learned counsel for the appellant has submitted that the first respondent has obtained a money decree for Rs.4,53,600/- in O.S.No.1594 of 2008 dated 08.07.2008 and instead of executing the decree before the competent Court, the first respondent has adopted short cut method in filing the insolvency petition in I.P.No.95 of 2009 by invoking the provisions under the Presidency Town Insolvency Act to adjudicate the appellant as insolvent. It was further submitted that since the appellant is a Government servant, he could not enter appearance in I.P.No.95 of 2009 on the hearing date and his counsel also met with the road accident after entrusting of vakalat and the counsel recovered from illness only after five months and the learned single Judge did not keep in view the inability of the appellant to contest the matter. Learned counsel would further contend that the order of attachment passed in the insolvency petition is only a short cut method to execute the decree and the learned single Judge was not right in ordering attachment. https://hcservices.ecourts.gov.in/hcservices/ 6. We have heard the learned counsel for the first respondent. The Official Assignee is also present in the Court. 7. Admittedly, the first respondent has obtained a money decree for Rs.4,53,600/- in O.S.No.1594 of 2008 dated 08.07.2008. It is also not in dispute that the appellant has not so far paid any amount. The case of the appellant is that being aggrieved by the dismissal of his application in I.A.No.7259 of 2008 in O.S.No.1594 of 2008 declining leave to defend the suit, the appellant has filed C.R.P.No.4048 of 2010, which came to be dismissed on 25.11.2010, giving liberty to the appellant to work out his remedy by preferring appeal against the judgment and decree in O.S.No.1594 of 2008. On behalf of the appellant, it was submitted that in pursuance of the order in C.R.P.No.4048 of 2010, the appellant has also preferred an appeal in A.S.SR.No.7103 of 2011 in O.S.No.1594 of 2008 in the City Civil Court and the appeal is yet to be numbered. 8.It is no doubt true that C.R.P.No.4048 of 2010 has been dismissed giving liberty to the appellant to challenge the decree in O.S.No.1594 of 2008. But the mere filing of the appeal would not be an impediment to the first respondent, who has obtained the money decree to pursue his remedy. Since the appellant has not paid the decree amount, the first respondent filed an application in A.No.355 of 2010 in I.P.No.95 of 2009. Since the appellant is a Government servant and is also having a regular source of income by way of salary and having regard to the fact that the first respondent is a decree holder, in our considered view, the learned single Judge rightly ordered attachment of salary of the appellant. 9.Insofar as the quantum of attachment, the learned single Judge has ordered attachment of 50% of the salary. It is seen from the order of the learned single Judge that the gross salary of the appellant is Rs.45,273/- per month and his take home salary is Rs.28,518/- per month. The learned single Judge ordered attachment of 50% of the appellant's take home salary. In this appeal, by the order dated 23.12.2010, the earlier Division Bench has granted interim stay subject to the condition that instead of 50%, the deduction of salary of the appellant shall be restricted to 25%. Learned counsel for the first respondent has also submitted that Rs.5,955/- being the 25% of the take home salary has been deducted from the salary of the appellant for the months of December, 2010 and January, 2011. In our considered view, the learned single Judge has directed the attachment of 50% of the take home salary which comes to around Rs.14,259/-. 10.Section 60 C.P.C. deals with the attachment of salary and the property liable to attachment. As per sub clause (i) of proviso to Section 60 C.P.C. "salary to the extent of first one thousand rupees and two thirds of the remainder in execution of any decree other than a decree for maintenance shall not be liable to such attachment or sale." The expression "salary" occurring in proviso (i) to Section 60 C.P.C., has to be interpreted as a "gross salary". Even going by sub clause (i) of the proviso to Section 60 C.P.C., if we take the gross salary of the appellant i.e. Rs.45,273/-, deducting Rs.1,000/-, the balance is Rs.44,273/-. 1/3rd of Rs.44,273/- comes around Rs.14,424/-. In our considered view, the https://hcservices.ecourts.gov.in/hcservices/ order of the learned single Judge ordering attachment of 50% of Rs.28,518/- i.e. Rs.14,259/- is also in consonance of sub clause (i) of proviso to Section 60 C.P.C. In such view of the matter, we do not find any reason to interfere with the order of attachment of the learned single Judge. 11.For the foregoing reasons, we do not find any reason to interfere with the order of the learned single Judge. Accordingly, the appeal is dismissed. However, the dismissal of this appeal would not be an impediment for the appellant to pursue the appeal filed by him before the City Civil Court. We make it clear that we have not expressed any opinion on the merits of the matter. In the appeal preferred by the appellant before the City Civil Court, the appellate Judge shall proceed with the matter in accordance with law. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar usk/mmi To 1 The Sub-Asst.Registrar High Court, Madras 2 The Registrar, City Civil Court, Chennai O.S.A.No.413 of 2010 PVR(CO) DRL : 07/03/2011 https://hcservices.ecourts.gov.in/hcservices/ 17.02.2011 https://hcservices.ecourts.gov.in/hcservices/