IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.11.2010 CORAM THE HON'BLE MR. JUSTICE M.VENUGOPAL M.P.No.1 of 2010 in A.S.No.60 of 2010 ORDER
The Petitioner /Appellant /Plaintiff Bank has filed the present Miscellaneous Petition praying for relief of ad-interim injunction being granted restraining the Respondents, their men, agents or servants from alienating the mortgage property concerned in O.S.No.12 of 2003 on the file of trial Court pending disposal of the Appeal A.S.No.60 of 2010.
2.The Learned Counsel for the Petitioner/Appellant/ Plaintiff Bank submits that the Respondents 3 and 4 are trying to alienate the suit schedule mortgage property. The 1st Respondent/ 1st Defendant is having many creditors like Petitioner/Appellant/ Plaintiff Bank and they are forced to sell the property to meet out the debts and in this circumstance the Petitioner /Appellant / Plaintiff Bank has made out a prima facie case for the grant of interim injunction and if interim injunction is not granted by this Court then the Petitioner /Appellant/ Plaintiff Bank will not be in a position to recover the amount due under the mortgage decree which is a large sum and therefore, prays for allowing the miscellaneous petition in the interest of justice.
3.Notice to Respondents 1 and 2 has been given up. Notice through Court and privately has been served to 3rd Respondent, but today at the time of the hearing of the matter there is no representation on his behalf either in person or through the Learned Counsel.
4.The 4th Respondent has filed a counter among other things mentioning that the trial Court has come to the clear conclusion that he has not signed as a guarantor for the 1st Respondent in respect of the suit loan filed by the Petitioner/ Appellant /Plaintiff and the trial Court’s conclusion is based on appreciation of oral and available documentary evidence on record and hence the injunction petition may be dismissed by this Court in the interest of justice.
5.The trial Court in paragraph-12 of its Judgment in the main suit has interalia observed as follows”
“… The Plaintiff also not filed any document for proof that the 3rd Defendant also a co partner in the 1st Defendant’s partnership firm. Neither the 2nd Defendant nor the 3rd Defendant opted the box and deposed that there was a partnership between the 2nd Defendant and the 3rd Defendant. During the cross examination of P.W.1 it is elicited that the 3rd Defendant retired from partnership firm and the partnership firm reconstituted. P.W.1 admits that he do know the right and liabilities of the 3rd Defendant as for the original partnership agreement or as per the reconstituted agreement. In the absence of partnership agreement and also in the absence of any document executed by 3rd Defendant he cannot be held liable for the suit debt.”
6.As regards the 4th Defendant, the trial Court in its Judgment in the suit in paragraph-13 has also mentioned that ‘the 4th Defendant proves through the official records when he was a Commissioner his signature was not contained in Exs.A.6 and A.7 and accordingly held that he has not executed the guarantee letter, the letter of memorandum of title deeds and that his signature has been forged.’
7.On a careful consideration of the contentions advanced on behalf of the parties and on an overall assessment of the facts and circumstances of the present case in an integral fashion this Court at this stage is of the considered opinion that a prima facie is not in favour of the Petitioner/ Appellant/ Plaintiff being granted an order of interim injunction and in that view of the matter, the petition is hereby dismissed granting liberty to the Petitioner/ Appellant/Plaintiff Bank to raise all factual and legal issues encircling the case at the time of hearing of the main Appeal. No costs.
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