IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.94 of 2004 Sri Paduka Charities .. Appellant Original side appeal filed under Order XXXVI Rule 11 of the Original Side Rules read with Clause 15 of Letters Patent against the order of this Court passed in Application No.5011 of 2003 in O.P.No.21 of 2003 dated 6.1.2004. For Appellant : Mr.N.S.Varadachari JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges an order of dismissal made by the learned Single Judge in Application No.5011 of 2003 in O.P.No.21 of 2003 whereby the appellant trust sought for grant of leave and permission to utilize the sale proceeds of Rs.70 lakhs realized from the sale of the trust properties. 2.The Court heard the learned Counsel for the appellant. The materials available and in particular, the order under challenge, and the earlier order granting permission in O.P.No.21 of 2003, are perused. 3.The appellant trust filed O.P.No.21 of 2003 seeking permission of this Court to sell the property mentioned in the Schedule annexed to the petition, for a consideration of Rs.70,00,000/- stating that in the trust deed, the trustees were permitted to sell the property for a necessity that arose; that Ex.P1 is the trust deed; that Ex.P2 is the deed of amendment; and that the trust was carrying on its activities for which it came to be constituted. 4.On the earlier occasion, the Court considered the materials available, and after appraisement of the evidence adduced both oral and documentary, thought it fit to grant permission to sell the properties of the trust by the trustees to one Dr.V.B.Narayana Murthy for a sum of Rs.70,00,000/-. While the order was passed on 27.6.2003, there was a direction for the deposit of the said sum with Union Bank, Ashok Nagar, Madras, for a period of five years, and the trustees were also permitted to draw the accrued interest every month for the benefit of the trust and also to make renewal of the deposit then and there, and they were https://hcservices.ecourts.gov.in/hcservices/ not entitled to withdraw the deposit amount without the permission of this Court. 5.Accompanied by an affidavit stating the necessity, the instant application has been brought forth stating that originally permission was sought for for the sale of the property for the purpose of commencing Ayurvedic Siromani Courses; that now, all the buildings have got to be constructed, and apparatus have got to be purchased, and under the circumstances, the trustees may be permitted to withdraw the sum of Rs.70 lakhs lying in the Bank deposit as per the directions of the Court. 6.When the application came up for consideration by the learned Single Judge, the application was not only dismissed, but also the learned Single Judge has observed that permission originally granted for sale of the property, was to be set aside and further observed that the sale should not have been granted, and it was a case where notice should have been given to the Advocate General under Sec.92 of C.P.C.; but, all these formalities have not been complied with, and hence, the sale itself is not valid. 7.It is clear from the submissions made by the appellant's Counsel and the materials available that the trust came forward to file the said original petition to get the permission of the Court for the reasons stated therein. The learned Single Judge of this Court after appraisement of the circumstances and reasons found therein, actually granted the relief. Accordingly, the property was sold to the said Dr.V.B.Narayana Murthy for a consideration of Rs.70 lakhs long back, and the amount has also been deposited with the bank as per the directions of this Court. When the instant application was filed for withdrawal, question of reconsideration of the original request on the reasons adduced, or the orders passed thereon, does not arise since it was not appealed, and the Court was not called upon to exercise the appellate jurisdiction at that time. But, the learned Single Judge has set aside the sale which, in the opinion of this Court, is thoroughly erroneous. Hence, that order of the learned Single Judge has got to be set aside, and accordingly, it is set aside. 8.As far as the request of the appellant/applicant is concerned, the affidavit in support of the application speaks about the reasons for the commencement of Ayurvedic Siromani Courses, and for that purpose, the amount is needed. Even in the affidavit in support of the earlier original petition seeking permission for sale of the property, that was the very reason adduced. The Court found it justifiable and then granted permission. But, the Court has directed the entire amount should be deposited with the nationalized bank, and the trustees were permitted to take interest monthly once, and they were also directed to renew the deposit after the period of five years then and there. The Court further directed that the deposit amount should not be withdrawn until further orders of this Court. The very reason for which the property was permitted to be sold, was exactly the one now brought forth. After granting permission for sale of the property for a particular cause which was found to be justifiable, keeping the amount in the bank will be nothing but impeding the appellant trust to further commence the course for which the property was sold and it would rather https://hcservices.ecourts.gov.in/hcservices/ defeat the purpose for which permission was granted. In such circumstances, this Court is of the considered opinion that the appellant has got to be permitted to withdraw only a part of the amount. 9.Now, at this juncture, the appellant has sought for permission to withdraw the entire amount of Rs.70 lakhs from the bank which, in the opinion of the Court, need not be accorded at this time. Accordingly, the appellant trust is permitted to withdraw 50% of the said amount for the said purpose. In future, if necessity arises, the appellant can approach the Court of original jurisdiction and get necessary orders thereon. It is also made clear that the amount now permitted to be withdrawn namely 50%, from the Bank, has got to be utilized exactly for the purpose for which originally permission for sale was obtained. As far as the balance 50% is concerned, the same should be kept in the same Bank as deposit for a period of three years. The trustees are permitted to withdraw the interest accrued every month for the benefit of the trust. The amount now directed to be kept in bank deposit, should not be withdrawn without obtaining orders from the Court of original jurisdiction. 10.Accordingly, the order of the learned Single Judge is set aside, and this original side appeal is allowed to the extent indicated above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To The Sub Assistant Registrar, Original Side, High Court, Madras. OSA No.94 of 2004 KU(CO) RVL 23.07.2008 https://hcservices.ecourts.gov.in/hcservices/