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TMI Blog2014 (6) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judge, while passing the order in A. No. 3488 of 2012 in C.S. No. 507 of 2012, on 02.01.2013, has, in paragraph Nos.6 & 7, observed the following: 6. Firstly, for the reason that even as per the case set up by the plaintiff/ applicant, the amount is secured by equitable mortgage, and the applicant/ plaintiff has also not made out any case for ordering security or attachment, by showing any overt act on the part of the defendant/non-applicant to dispose of the property to defeat the decree to be passed. On the other hand, the averments in the affidavit show that the defendant/ non-applicant has deposited the title deed of the property to create equitable mortgage to secure the amount. 7. This application, therefore, is nothing but misuse of the process of court, and filed with some ulterior motive. and resultantly, dismissed the Application. 3. The Learned Single Judge, while passing the impugned order in O.A. No. 677 of 2012 in C.S. No. 507 of 2012, on 02.01.203, has, in paragraph Nos.9 to 11, observed the following: 9. The reading of the Order XXXIX Rule 1 and 2 of C.P.C. shows that interim direction/injunction can be granted with regard to the suit property. The plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n C.S. No. 507 of 2012 pending on the file of this Court. 8. Lastly, it is the submission of the Learned Counsel for the Appellant that the Learned Single Judge, without any valid reason, had come to the conclusion that A. No. 3488 of 2012 (filed by the Appellant/Applicant/Plaintiff) is nothing but misuse of process of Court and it was filed with some ulterior motive. Added further, in this regard, the Learned Counsel for the Appellant projects an argument that nowhere from the materials placed before the learned Judge can such conclusions be arrived at in A. No. 3488 of 2012. Submissions of the Appellant/Applicant/Plaintiff in O.S.A. No. 291 of 2013: 9. The Learned Counsel for the Appellant submits that the order of the Learned Single Judge in dismissing O.A. No. 677 of 2012 in C.S. No. 507 of 2012 is contrary to Order XIV Rule 8 of the Original Side Rules, 1956 and Order XXXIX Rule 1 and 2 of the Civil Procedure Code. 10. The Learned Counsel for the Appellant forcefully contends that the Learned Single Judge had committed an error in not appreciating that the Order XXXIX Rule 1 and 2 C.P.C. can be invoked in suits for recovery of money and that the Original Application Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cabin and threatened him with coercion and undue influence to confess about the queries made in the External Audit Report and further, he was informed that if he do not accept to confess, he would be terminated from service and would be handed over to police. As such, left with no other option, the Respondent/Defendant wrote a confession letter on 21.10.2011 that he would made good loss to the company as it was dictated by the aforesaid officials of the Appellant/ Plaintiff's company. Furthermore, the Respondent/Defendant was threatened to handover his immovable properties documents such as Certified Copy of Sale Deed dated 27.10.2003 registered as Document No. 9398 of 2003 of his wife's plot/house where he was residing now since the original Sale Deed was mortgaged by Dena Bank and the original Sale Deed of house at Kumbakonam. In fact, he handed over the original Sale Deeds in the name of his wife (Virugambakkam property) dated 30.06.2004 and 27.10.2003 and the original Sale Deed dated 05.09.2008 (jointly in his name and his wife at Kumbakonam) to one V. M. Ravikumar, the Senior General Manager ' I.R. namely, the 7th Defendant in the Original Suit in O.S. No. 296 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are dismissed. No costs. Consequently, connected MP is also dismissed. 20. He also cites the decision of the Hon'ble Supreme Court in Raman Tech. & Process Engineering Company and another V. Solanki Traders, (2008) 2 Supreme Court Cases 302, at page 303, wherein, it is observed and laid down as follows: The object of supplemental proceedings is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. However, before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. Further, he needs to establish that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at Virugambakkam V.M.Ravi Kumar, the Senior General Manager ' I.R. of the Appellant/ Applicant, who had acknowledged the receipt of Sale Deeds of immovable properties. Moreover, the said Sale Deeds are in possession of the Appellant/Applicant. 25. At this juncture, a perusal of the Judge's Summon in O.S.A. No. 677 of 2012 in C.S. No. 507 of 2012 shows that the properties mentioned are Items 1 and 2, a plot at Virugambakkam, Chennai ' 600 092 and land and building at Thiruvidaimarudur Ooratchi Onriam, Srinivasa Nallur Village, Kumbakonam SRO, Thanjavur District. Likewise, the very same properties shown as Item Nos.1 and 2 in Application No. 677 of 2012 were shown as properties in A. No. 3488 of 2012. 26. In regard to the grant of interim injunction, a Court of law is to see that there is a bona fide contention between the parties, and then, on which side, in the event of success, will lie the balance of inconvenience if the injunction is not granted. Also, a Court of Law is to see whether a litigant has approached the Court has a plausible case and whether there is a possibility of such case succeeding at the trial. Moreover, the balance of convenience, inconvenience ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and in fact, the losses caused by the Respondent/ Defendant to the Appellant/Plaintiff were proved in the departmental enquiry held against the Delinquent. In effect, the Appellant/Plaintiff's case is that the Respondent/Defendant, while working under the Appellant/Plaintiff, embezzled the amount by citing fictitious vendors/ suppliers and also showed payment to them and misappropriated the money. Also that, the only manner by which atleast the part of the money can be recovered from the Respondent/Defendant is by selling his properties in question and if these properties are not secured, then, he would alienate them and defeat the interests of the Appellant/Plaintiff. In this connection, this Court relevantly points out that in the Affidavit in O.A. No. 677 of 2012, in paragraph 27, the Appellant/Plaintiff had stated as follows: 27.... The respondent is already trying to dispose of the properties. Unless this is prevented, it will cause great hardship and prejudice to the applicant. If the respondent is not restrained from disposing of the properties, the applicant will not be able to recover the suit claim. 29. Coming to the aspect of the Appellant/Plaintiff seeking for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Order 38 Rule 5 cannot be pressed into service as a lever for coercing the Defendant to settle the suit claim, in the considered opinion of this Court. 33. Be that as it may, in the main pending Civil Suit C.S. No. 507 of 2012, the Appellant/Plaintiff has a relief of Money Decree to be passed against the Respondent/Defendant for a sum of Rs. 2,01,62,274/- together with interest at the rate of 18% p.a. from the date of filing of the Plaint till date of realisation. As a matter of fact, the Respondent/Defendant has filed O.S. No. 2967 of 2012 (before the Vacation Court) on the file of the City Civil Court, Chennai seeking a relief relating to his dismissal from service. One cannot ignore an important fact that the Appellant/Plaintiff in C.S. No. 507 of 2012 seeks a relief of Money Decree for the sum mentioned supra, based on fraud committed by the Respondent/Defendant in regard to the siphoning of its funds, which are to be established conclusively at the end of the trial of the suit. Also that, the Appellant/Plaintiff's plea is that the Respondent/Defendant has created an Equitable Mortgage to secure the amount. When the Respondent/Defendant has created 'Equitable M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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