C.S. Karnan, J.@mdashThe above Civil Miscellaneous Appeal has been filed by the appellant/defendant against the Order dated 13.07.2007, in
I.A. No. 1265 of 2006 in O.S. No. 533 of 2006, on the file of the Principal District Court, Coimbatore.
2. Aggrieved by the said order the appellant has filed the above appeal to set aside the Order dated 13.07.2007, in I.A. No. 1265 of 2006 in
O.S. No. 533 of 2006, on the file of the Principal District Court, Coimbatore.
3. The short facts of the case are as follows:
The respondent/plaintiff has filed in O.S. No. 533 of 2006 against the appellant/defendant to pay a sum of Rs. 5,42,658/- with future interest of
Rs. 5,000/- at the rate of 15% per annum as the amount is due by way of commercial transaction between the parties. The respondent/plaintiff has
filed an Interlocutory Application in I.A. No. 1265 of 2006 along with the said suit. The respondent stated that the suit for recovery of the amount
and the interest thereon due from the respondent as per the settlement of accounts arrived at between the defendant and plaintiff, as per the deed
of Dissolution of Partnership dated 03.08.2005. The defendant and the plaintiff along with two others were conducting a partnership by name
''R.R. Industries''. Since, the defendant himself wanted to take over the partnership and run it as a proprietary concern, the partnership was
dissolved with the consent of the partners on 03.08.2005. The defendant has settled the claim of the other two partners. As far as the plaintiff was
concerned, the defendant agreed to pay the amount due to the plaintiff, as arrived at between the parties through instalments. Of the five
instalments in respect of the amounts due by the appellant/defendant, the respondent has not made payment of the fourth and fifth installments,
which comes to a sum of Rs. 5,00,000/-. The defendant has also agreed to pay the interest at the rate of 15% per annum on the outstanding
amount. Since, the defendant has not made this amount the plaintiff has filed a suit for the recovery of the amount due. Hence, the plaintiff
apprehends that he would seriously take steps to dispose of his properties. So, the plaintiff calling upon the defendant to furnish security for the
amount due to the plaintiff and on his failure, the property described in the petition be attached before Judgment.
4. The appellant/defendant has filed a counter statement stating that the respondent/plaintiff is not entitled to claim any sum of money from the
appellant much less a sum of Rs. 5,42,658/- as claimed in the plaint. Since, this appellant is not liable to pay any money which goes without saying
the respondent need not furnish security for the suit claim. The appellant does not admit the genuineness of all the three plaint documents filed along
with the plaint by the plaintiff. The appellant has not signed in any of the three plaint documents, they are ranked forgery and does not contain the
signature of the respondent. Those documents have been fabricated by the plaintiff. In order to file a frivolous and false suit against the appellant.
On this score also the suit is not maintainable and consequently the Interlocutory Application is liable to be dismissed. The petition mentioned
property has been mortgaged with G.E. Money Financial Services Ltd., Hence, the first right upon the petition mentioned property is with the said
company. The have to be necessarily ordered or impleaded as a party before passing an order in this application.
5. In any event, the partnership firm said to have been in existence and subsequently dissolved as per the contention of the plaintiff was an
unregistered one. No suit or proceeding would be in a court of law arising from a contract, by or on behalf of any person suing as a partner in a
firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has
been shown in the register of firms as a partner in the firm as per Section 69 of the Indian Partnership Act, 1932. Therefore, the suit itself is barred
under law. The plaintiff has filed a suit only based upon fabricated documents he was not chosen to sent any pre-suit notice to this appellant.
Instead he has rushed to the Court of law, which itself would reveal the anxiety of the petitioner in securing an ex-parte order behind the back of
the appellant.
6. The respondent/plaintiff has suppressed many material facts and particulars in order to obtain some of the other order from this Court by
misleading and misrepresentation of facts. The appellant is advised to state that a relative of this plaintiff by name Mr. Jayaraman, who is a retired
TNEB Official has illegally and unlawfully colluded with this plaintiff in getting a copy of the sale deed with respect to the petition mentioned
property. From the office of the A.E., TNEB, Ganapathy, which this appellant has submitted while applying for a E.B. connection. This respondent
intends to take suitable criminal action against this petitioner as well as the said Jayaraman for their mis-deeds. Hence, the appellant prayed before
the Trial Court to dismiss the Interlocutory Application in I.A. No. 1265 of 2006.
7. The learned District Judge, Coimbatore, after hearing the arguments advanced by the both side learned Counsel, contents of the plaintiff and
counter statement of the defendant, the Trial Court had come to the conclusion that the appellant/defendant after receiving the notice, he tried to
dispose his property, hence, the learned District Judge, Coimbatore ordered for the attachment before the Judgment.
8. Aggrieved by the said Order dated 13.07.2007, in I.A. No. 1265 of 2006 in O.S. No. 533 of 2006, passed by the Principal District Court,
Coimbatore, the appellant has filed the above appeal praying to set aside the said order.
9. Learned Counsel appearing for the appellant argued that the learned District Judge has completely erred in allowing the application filed by the
respondent and thereby directing for the attachment of the properties belonging to the appellant before the Judgment. The learned Judge has failed
to consider the mandatory provision under Order XXXVIII Rule V of Code of Civil Procedure. The learned Counsel further argued that an
application before the Judgment could be made only towards alleged that the defendant with intent to obstruct or delay the execution of any decree
that might be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his
property from the local limits of the jurisdiction of the Court, whereas the affidavit filed by the respondent in support of his application, does not at
all whisper anything on this material aspect of the matter.
10. The learned Counsel further argued that the District Judge had rather on a very vague and bald allegations made in the affidavit of the
respondent passed the order running contrary to the settled law on this subject. The Court below cannot without giving an opportunity to the
appellant call upon him to furnish security in as much, even to call upon the appellant to furnish security must be only after notice to the appellant
and only thereafter he can call upon the appellant to furnish security, then only the orders could be passed, whereas the Court below had not
directed to furnish security after the show cause notice and without giving him an opportunity of being heard. The appellant has filed an additional
affidavit stating that he has no intention whatsoever to sell the schedule mentioned property attached to the I.A. No. 1265 of 2006 in O.S. No.
533 of 2006. Further, the appellant do not have any proposal to enter into any sort of negotiation with any third party. The appellant further stated
that the suit property is already under an equitable mortgage created by him in favour of the G.E. Money Financial Services Ltd., subject to the
above mortgage, the appellant hereby undertakes not to sell or create any other mortgage any lien or charge by way of settlement or create any
other encumbrances over the property mentioned in the scheduled attached to the I.A. No. 1265 of 2006 in O.S. No. 533 of 2006, on the file of
the Principal District Court, Coimbatore. Hence the learned Counsel prays to set aside the said order.
11. Learned Counsel appearing for the respondent argued that the learned District Judge, Coimbatore, after filing counter statement of the
defendant and argument of the defendant''s counsel, passed the attachment order before the Judgment. The learned Judge after well considering
the dissolution of partnership deed made between the partners including appellant herein. As per the partnership deed condition the appellant is
liable to pay suit amount. This is a nucleus point in this case. So, the impugned order is a well considered one. As such, the Civil Miscellaneous
Appeal is not maintainable, hence, he prays to dismiss the appeal.
12. Considering the facts and circumstances of the case, scrutiny of findings of the District Judge, Coimbatore, arguments advanced by the learned
Counsel appearing on either side, this Court is of the opinion that the suit property is not having marketable title, since the property involved in
equitable mortgage in favour of G.E. Money Financial Services Ltd., The attachment order passed on 13.07.2007 until today the attachment order
in force, which is enjoyed by the respondent. At this stage this Court does not interfere with the impugned order dated 13.07.2007, in I.A. No.
1265 of 2006 in O.S. No. 533 of 2006, passed by the Principal District Court, Coimbatore.
13. In the interest of justice, this Court hereby directs the learned Principal District Judge, Coimbatore to dispose the suit itself on merits, after
giving an opportunity to the parties concerned, within a period of six months from the date of receipt of this order. Accordingly, the above Civil
Miscellaneous Appeal is disposed of as observed above. Consequently, connected miscellaneous petition is closed. There shall be no order as to
costs.
