1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) SATURDAY, THE 10th DAY OF DECEMBER 2011 THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No.4900 of 2011 in C.S. No.630 of 2011 The Future Management & Consultancy Pvt Ltd., Suite No.913, Barton Centre, M.G.Road, Bangalore-560 001 rep. herein by its Authorized Signatory, Girijashankar D.N. ..Plaintiff VS 1.M/s.Lancor Holdings Limited Having its registered office at 'Arihant VTN Square', New No.58 (Old No.104), G.N.Chetty Road, T.Nagar, Chennai-600 017. 2.R.V.Shekhar Managing Director M/s.Lancor Holdings Limited having its registered office at 'Arihant VTN Square', New No.58 (Old No.104), G.N.Chetty Road, T.Nagar, Chennai-600 017. 3.M/s.Lancor Projects Limited having its registered office at 'Arihant VTN Square', New No.58 (Old No.104), G.N.Chetty Road, T.Nagar, Chennai-600 017. 4.Blue star Limited having its office at 46 Garuda, Buildings, Cathedral Road, Chennai-600 086. 5.BP ERGo Limited having its office, K-52, MIDC Industrial Area, Hingna Road, Nagpur-440 016. https://hcservices.ecourts.gov.in/hcservices/ 2 6.Jaydheep Techno Enterprises Pvt. Ltd., having its office at Plot No.347, 348 2nd Main 4th Link Road, Nehru Nagar, Old Mahabalimpuram Road, Kottivakam, Chennai-600 096. 7.Peninsula Designs Pvt. Ltd., having its office at New No.18, Old No.40, Oliver Road Mylapore, Chennai-600 004. 8.Shriji Kraft Pvt. Ltd., having its office at G-2, Prekh Appts, 34 Sarojini Road, Ville Parle West, Mumbai-400 056. 9.VDB Electrical Pvt. Ltd., having its office at B-2, Ground Floor, Jasmine Gardens, #10, Sabapathy Street, Aminjikarai, Chennai-600 029. 10.Kishore Kumar Menon, 11.Prem Menon 12.Christopher Menon Defendant Nos.1 to 12 are stated to be residing at No.58, Hundred Feet Road, 2nd Block, Koramangala, Bangalore-560 034, and also at Casa Fina, No.5, Prim Rose Road, Bangalore-560 025. ..Defendants A.No.4900 of 2011:- The Future Management & Consultancy Pvt Ltd., Suite No.913, Barton Centre, M.G.Road, Bangalore-560 001 Rep. herein by its Constituted Attorney Girijashankar Nagaraj ..Applicant/Plaintiff VS M/s.Lancor Holdings Limited Having its registered office at 'Arihant VTN Square', New No.58 (Old No.104), G.N.Chetty Road, T.Nagar, Chennai-600 017. ..1st Respondent/Defendant https://hcservices.ecourts.gov.in/hcservices/ 3 2.BNP Paribus Sundaram Global securities Operations Pvt. Ltd., 5th Floor, Menon Eternity Door No.165 (old Door No.110) St.Mary's Road, Alwarpet, Chennai-600 018. ..Respondent/ Garnishee Application praying that this Hon'ble Court be pleased to pass a Pro Order prohibiting the Respondent No.2 from paying the rentals - payable for 5th floor of the building 'Menon Eternity', at door N.165 (Old Door No.110) St. Mary's Road, Alwarpet, Chennai-600 018 to any person including the 1st respondent and deposit the same in Hon'ble Court to the credit of suit C.S.No.630 of 2011 pending disposal of the suit. This applications coming on this day before this court for hearing the court made the following order: The plaintiff / applicant, The Future Management & Consultancy Pvt. Ltd., has filed a suit for recovery of Rs.4,74,14,495/- (Rupees Four Crores Seventy Four Lakhs Fourteen Thousand and Four Hundred Ninety Five only) along with interest at the rate of 24% from the date of filing of suit till its realization. 2. The suit for recovery against defendant no.1 is for a sum of Rs.3,24,14,595/- (Rupees Three Crores Twenty Four Lakhs Fourteen Thousand Five Hundred and Ninety Five only) along with interest and a sum of Rs.1,00,00,000/- (Rupees One Crore only) jointly and severally against https://hcservices.ecourts.gov.in/hcservices/ 4 defendant nos.1 & 3. The plaintiff also claimed damages of Rs.50,00,000/- (Rupees Fifty Lakhs only) with interest from defendant no.1. 3. It is the case of the applicant / plaintiff, that it was looking for a space in Chennai for setting up its centre to act as the nerve centre for the group's entire operations world-wide. It is pleaded case of the plaintiff that defendant no.1 projected that it had entered into a joint development agreement and subsequently, a supplemental agreement with the owners (Menons) with respect to the property at Door No.165 (Old Door No.110), St.Mary's Road, Alwarpet, Chennai to develop the property. 4. It was also held out that a superstructure with 20,678 sq.ft. of built up space would be available on the 5th and 6th floors of the proposed structure on the said premises. It is the case of the plaintiff that defendant no.1 projected that he was the owner of the 5th floor and menons were the owners of the 6th floor and that there was no interse dispute regarding title / entitlement of their respective portions. 5. It was also disclosed that menons were having necessary resources, including financial and human resources to complete the proposed superstructure as per law and as the requirement of the plaintiff. They also agreed to obtain necessary sanction and comply with other statutory provisions. The proposed demised premises was https://hcservices.ecourts.gov.in/hcservices/ 5 also agreed to be handed over to the plaintiff in October 2008. Thereafter,a registered lease deed was to be entered into between the parties. 6. It is the case of the plaintiff that in view of the assurance and representation of the defendants, a sum of Rs.1,00,00,000/- (Rupees One Crore only) was paid to the menons on 22.07.2008. This payment was made through cheque. Subsequently, an agreement dated 11.09.2008 was executed with defendant no.1 for the 5th floor and agreement dated 30.09.2008 was executed with menons for the 6th floor, wherein it was stipulated that lease will be executed and possession handed over to the plaintiff in October 2008. 7. Clause-3 of the agreement entered into between the parties stipulates as under: "The Lease will commence from the 1st day of October 2008 (01.10.2008) or upon THE LESSOR obtaining the Completion Certificate from the CMDA and the requirement power supply from the Tamil Nadu Electricity Board (TNEB). Whichever is later (hereinafter referred to as "the Effective Date"). The car parking space charges and other charges payable by THE LESSEE as specified in this Lease Deed shall also commence from the Effective Date. The Parties shall endeavour to execute and register a lease deed in respect of the Demised Premises on or before the Effective Date, on the same terms and conditions as stated in this Lease Deed." 8. Thereafter, on the request of defendant nos.1 & 2, another sum of Rs.1,18,35,968/- (Rupees One Crore Eighteen Lakhs Thirty Five Thousand Nine Hundred and Sixty https://hcservices.ecourts.gov.in/hcservices/ 6 Eight only) was paid by the plaintiff to defendant no.1 and menons respectively again by way of cheque. 9. The case of the plaintiff is that after receipt of amount for 5th and 6th floors, the defendants did not complete the construction nor the possession of 5th and 6th was handed over. The defendants did not have requisite resources to complete the building as per legal and contractual specifications. That there were serious disputes between defendant nos. 1 & 2 and menons. 10. It is submitted that the material facts were suppressed to fraudulently induce the plaintiff to part with a huge amount of money. That defendant no.1 was not the owner of the property nor had resources to complete the construction. Allegations of cheating have been alleged. Further case of the plaintiff is that defendant no.1 and menons were not in a position to hand over the possession even at the time when the promise was made. 11. The pleaded case of the plaintiff is, that the possession was not handed over as per the terms agreed between the parties, and defendant no.1 and menons thereby made wrongful gain at the cost of the plaintiff. Allegations of cheating, breach of trust, forgery, criminal intimidation and bodily threats have been levelled against defendants. It is further submitted that menons paid back to the plaintiff a sum of Rs.2,18,35,968/- (Rupees Two Crores Eighteen Lakhs Thirty Five Thousand Nine Hundred https://hcservices.ecourts.gov.in/hcservices/ 7 Sixty Eight only) towards principal outstanding, but defendant nos. 1 to 3 are still in default. This averment shows that the plaintiff is only claiming refund of balance amount with interest. 12. It is also the case of the plaintiff that several promises were made by the plaintiff to repay the amount, but it was not paid. 13. The plaintiff has not filed a case for enforcement of agreement of lease, agreed between the parties, but for refund of money and damages with interest. The only ground for making this application is that the plaintiff's claim is required to be sufficiently secured, by prohibiting respondent no.2 from paying rentals for 5th floor of building Menon Eternity, to any person including 1st defendant and deposit it in this Court. 14. This Court, on consideration finds that no such order can be passed. The plaintiff has failed to even make out any case for security. It is not the case of the applicant, that any steps have been taken to dispose off the property to defeat the rights of the plaintiff / applicant. It is also not case of the plaintiff that if decree is passed, it would not be executed. The only ground pleaded is, as the money is recoverable, and that the money should be deposited in this Court, which in view of this Court, is not permissible in law in view of specific provisions under the Code of Civil Procedure, to protect https://hcservices.ecourts.gov.in/hcservices/ 8 the right of plaintiff to secure decree in a given case. 15. There is absolutely no ground made out to pass an order, as prayed for. The plaintiff has failed to make out prima facie case, nor it is likely to suffer irreparable loss or injury. It is also not disclosed, under which provisions of law, the relief is claimed, as the inherent power of the Court cannot be invoked to overcome the statutory bar under Order 38 Rule 5(4) of the Code of Civil Procedure. 16. Consequently, finding no merits in this application, it is ordered to be dismissed. No costs. Sd/-V.K.S.J 10.12.2011 //Certified to be a true copy// Dated this the day of 2012. R.s/09.02.2012 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/