IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.09.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD)No.3945 of 2007 and M.P.No.1 of 2007
Pushpa ... Petitioner
Vs.
1. Balasubramanian
2. L.N.Tripathy
Chief Manager &
authorised Officer of
Indian Bank,
Circle Office,
Salem. ... Respondents
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 13.03.2007 made in I.A.No.372 of 2006 in O.S.No.67 of 2004 on the file of the Sub Court, Attur.
For Petitioner : Mr.T.Murugamanickam
For Respondent-1 : No appearance
For Respondent-2 : Mr.M.Balachandran for R2
*******
O R D E R
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 13.03.2007 made in I.A.No.372 of 2006 in O.S.No.67 of 2004 on the file of the Sub Court, Attur.
2. Plaintiff in O.S.No.67 of 2004 is the revision petitioner before this court. The suit in O.S.No.67 of 2004 has been filed by the plaintiff for recovery of a sum of Rs.3,39,506/- with pendent lite and subsequent interest at the rate of 12% per annum on Rs.2,50,000/- from the date of the suit till the date of realisation. Written statement has been filed by the first respondent/defendant and the suit is being contested. Pending suit, an application in I.A.No.261 of 2004 was filed by the petitioner/plaintiff for order of attachment of the property of the defendant. On 18.10.2004 property of the defendant was attached and the same was made absolute and it was also informed to the Office of the Sub Registrar, Gangavalli. Thereafter, the plaintiff filed an application in I.A.No.372 of 2006 directing the second respondent/Garnishee Bank to deposit excess amount of a sum of Rs.4,10,000/- or lesser sum lying with them after deducting only the amount lawfully due to the debt payable to Indian Bank, Circle Office, Salem. That application was resisted by the second respondent/ Garnishee Bank as well as the first respondent/defendant by filing a counter. The trial court by order dated 13.03.2007 dismissed that application. Aggrieved by the same, the above Civil Revision has been filed by the petitioner/Plaintiff under Article 227 of the Constitution of India.
3. Notice was ordered by this court on 02.01.2008 and interim injunction was granted.
4. Though the first respondent/defendant in the suit has been served and his name appeared in the list, there is no representation by them. However, the second respondent/Garnishee Bank is represented by a Counsel.
5. Heard the learned counsel appearing for the petitioner and the learned counsel for the second respondent/Garnishee Bank. I have also gone through the documents filed in support of their submissions.
6. The learned counsel for the petitioner submits that when a suit is filed by him for recovery of money from the first respondent/defendant, the Court passed an order of attachment on the application filed by him, attaching the property of the first respondent/defendant. However, the second respondent/Garnishee Bank, for the very same property initiated proceedings under SARFAESI Act and the property was brought to auction under the orders of the Debt Recovery Tribunal and the property was sold. The excess money of the sum Rs.4,10,000/- of the petitioner/ plaintiff is lying with the Bank. Since he has filed suit for recovery of money, he has filed an application in I.A.No.372 of 2006 seeking for deposit of excess amount by the Garnishee bank to the credit of the suit. However, that application was dismissed by the trial court on the ground that already a partition suit was pending between the first respondent/defendant and his family members and also the second respondent/ Garnishee Bank is not a party to the suit in O.S.No.67 of 2004.
7. Admittedly, the suit in O.S.No.67 of 2004 has been filed by the petitioner/plaintiff for recovery of money from the defendant. When the very same property was attached and sold through auction by the second respondent/Garnishee Bank under the provisions of SARFAESI Act, and the Garnishee Bank is in possession of an excess amount of a sum of Rs.4,10,000/- after deducting their dues of Rs.5 lakhs, according to the learned counsel for the petitioner, the Bank ought to have been directed to deposit the money before the trial court to protect the interest of the petitioner/ plaintiff.
8. I find force in the submission made by the learned counsel for the petitioner/plaintiff.
9. I find from the records that the trial court has committed an error in not directing the second respondent/Garnishee Bank to deposit the excess amount. The reasons given by the trial court for dismissing the application is that a partition suit is pending between the first respondent/defendant and his family members and the second respondent/Garnishee Bank is not a party to the present suit. These reasons are not legally sustainable as there was no order in the partition suit directing the Bank to withhold the amount and the Garnishee Bank need not be a party in the present suit filed by the revision petitioner for recovery of money from the first respondent/defendant. Already an order was passed by the trial court attaching the property after finding that the petitioner/plaintiff has made out a case for attachment. As the very same property was the subject matter in the SARFAESI act, the same could not be sustained. Now, once it is admitted that the Bank is holding an excess amount after realising their entire dues, there is no impediment in directing the Bank in depositing the excess amount to protect the interest of the petitioner/plaintiff. Further, no prejudice would be caused to the first respondent/defendant if the amount is deposited to the credit of the present suit.
10. Therefore, I set aside the order dated 13.03.2007 passed by the court below and I direct the second respondent/Garnishee bank to deposit the excess amount lying with them after adjusting the dues payable by the first respondent/defendant, to the credit of O.S.No.67 of 2004 within a period of three weeks from the date of receipt of a copy of this order.
S.RAJESWARAN,J.
vaan
11. With the above directions, the Civil Revision petition is allowed. No costs. Connected miscellaneous petition is closed.
12.09.2008
Index : Yes/No
Internet: Yes/No
vaan
Note to Office: Issue order copy on 11.11.2008
To
The Subordinate Judge, Attur
C.R.P.(PD)No.3945 of 2007
and M.P.No.1 of 2007
Dated: 12.09.2008