1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) WEDNESDAY, THE 23RD DAY OF NOVEMBER 2011 THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No.1475 of 2011 in C.S. No.148 of 2011 M.Mayan S/o.C.Muniasamy, Plot No.45, First Street, Alwar Nagar, Nanganallur, Chennai 600 061. ..Applicant/Plaintiff VS 1.M/s.Vimala Tex, rep. by its Prop. Mrs.Vimala No.6, Janshpuram 1st Street, Sellur, Madurai 625 002. 2.Mrs.Vimala, W/o.Mr.Selvan, No.6, Janshipuram 1st Street, Sellur, Madurai 625 002. ..Respondents/Defendants Application praying that this Hon'ble Court be pleased to pass an order directing the respondents to furnish security for the claim of the applicant failing which this court may be pleased to pass an order of attachment over the schedule mentioned property through Prl. District Munsif Madurai Town pending disposal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 2 Schedule of property All that piece and parcel of land and building in Door No.1A, 7th street, Ahimsapuram, Sellur, North Madurai, comprised in T.S.No.1530/1, situated in Town Survey Ward 10, Corporation Ward 16, measuring an extent of 1898 sq.ft or thereabouts, together with a right of passage on the street situated on the Eastern side and half share of right on the common walls erected on the West, North and Southern side, admeasuring East to West on the Northern side : 48 1/2 feet East to West on the Southern side : 42 feet North to South on the Eastern side : 47 1/2 feet North to South on the Western side : 61 feet However as per the actual measurement on ground for the 1st lot East to West on the Northern side : 34 1/2 feet East to West on the Southern side 34 1/2 feet North to South on the Eastern side 29 1/4 feet North to South on the Western side 29 1/4 feet extent of 1009 sq.ft. along with an adjacent land on the southern side being the 2nd lot admeasuring East to West on the Northern side : 28 feet East to West on the Southern side : 28 feet North to South on the Eastern side : 31 3/4 feet North to South on the Western side : 31 3/4 feet totaling to an extent of 889 sq ft, both totaling to an extent of 1898 sq.ft. along with fittings and fixtures and Bounded on the North by : Common Wall of KM Thangavel House https://hcservices.ecourts.gov.in/hcservices/ 3 East by : 20 feet street, South by : Common Wall of P.Ponniah House West by : Common Wall of Rmanujam, Saraswathiammal, Lakshmiammal House. This property is situated within the Sub-Registration District of Chokikulam and Registration District of Madurai North. This application coming on this day before this court for hearing the court made the following order: The plaintiff/applicant has filed a suit for recovery of Rs.42,35,000/- (Rupees forty two lakhs thirty five thousand only). 2 It is the case of the plaintiff/applicant that a loan of Rs.25,00,000/- (Rupees twenty five lakhs only) was advanced to the defendant/non applicant for urgent business requirement which carry interest at the rate of 24% p.a. The defendant/non applicant did not honour her commitment of returning the loan with interest which forced the applicant to file the suit for recovery. 3 Along with the suit, an application has been filed under Order XXXVIII Rule 5, read with Sec.151 of C.P.C. for directing the respondent to furnish security or in the alternative to attach the following properties: SCHEDULE OF PROPERTY All that piece and parcel of land and building in Door No.1A, 7th street, https://hcservices.ecourts.gov.in/hcservices/ 4 Ahimsapuram, Sellur, North Madurai, comprised in T.S.No.1530/1, situated in Town Survey ward 10, Corporation Ward 16, measurng an extent of 1898 sq.ft. Or thereabouts, together with a right of passage on the street situated on the Eastern side and half share of right on the common walls erected on the West, North and Southern side, admeasuring; East to West on the Northern side:48½ ft. East to West on the Southern side:42 ft. North to South on the Eastern side:47½ ft. North to South on the Western side: 61 ft. However as per the actual measuremet on the ground for the 1st lot East to West on the northern side: 34½ ft. East to West on the southern side: 34½ ft. North to South on the Eastern side: 29¼ ft. North to South on the Western side:29¼ ft. Extent of 1009 sq.ft. Along with an adjacent land on the southern side being the 2nd lot admeasuring East to West on the northern side: 28 ft. East to West on the southern side: 28 ft. North to South on the eastern side: 31¾ ft. North to South on the western side: 31¾ ft. Extent of 889 sq.ft. both totalling to an extent of 1898 sq.ft. along with fittings and fixtures and bounded on the North by: Common wall of KM Thangavel House East by; 20 ft. Street, South by: Common wall of P.Ponniah https://hcservices.ecourts.gov.in/hcservices/ 5 House West by: Common wall of Ramanujam, Saraswathiammal, Lakshmiammal House, This property is situated within the sub-Registration District of Chokikulam and Registration District of Madurai North." 4 Para 8 of the affidavit filed in support of the application reads as under: "As of now, the respondents are attempting to evade the loan liability. With this view in mind, the applicant given to understand that the second respondent is attempting to alienate the schedule mentioned property and appropriate the money for herself. On enquiry, the applicant find that the second respondent is chasing for prospective purchaser. The schedule mentioned property will fetch a sum of Rs.45,00,000/- (Rupees forty five lakhs only) if sold in open market. The second respondent has also started to close down her business and therefore the stock in trade will not be sufficient to meet the suit claim and the future interest. If the second respondent sells her property described hereinabove, the applicant will not be in a position to recover the decree amount and the decree that is likely to be passed in the above suit will become a decree on paper only. If the second respondent succeeds in her attempt, the applicant would be put to great and irreparable loss. On the other hand, the respondents will not be put to any loss or damage as they invested the loan amount in the schedule mentioned property and the same property will meet the suit claim." https://hcservices.ecourts.gov.in/hcservices/ 6 5 Though in the affidavit particulars showing attempt to dispose of the property, have not been pleaded to enable this Court to form prima facie opinion as to whether the defendant is trying to dispose of the property with an intent to defeat the right of the plaintiff to enjoy the fruits of decree. However, on notice, the defendant/non applicant has chosen not to file counter. The defendant/non applicant also not paid the cost imposed by this Court. 6 Consequently, the defence of non applicant ordered to be struck off for non payment of cost. The averments made in para 8 of the affidavit mentioned hereinabove therefore are to be accepted on its face value, which proved that the defendant/non applicant with an intent to defeat the decree likely to be passed in favour of the plaintiff, is taking steps to dispose of the property. The averments made in the affidavit if taken on its face value show the intention of defendant/non applicant to dispose of the property to defeat the right of the applicant. 7 Consequently, this application is ordered, and schedule property is ordered to be attached pending disposal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 7 Sd/-V.K.S.J 23.11.2011 //Certified to be a true copy// Dated this the day of 2012. R.s/03.01.2012 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/