Madras High Court · 2011

It may be mentioned here again that the respondent no.5 is not a party to the main suit. iv) A.No.3581 of 2011: This application has been moved by the applicant / defendant for vacating the order of injunction granted in O.A.No.509 of 2011 in C.S.No.1039 of 2011 dated 14.06.2011.

2. Mr.N.Balasubramanian has filed C.S.No.1039 of 2010 against Mrs.Madhuri Mathur, Mr.Vivek Mathur, M/s.Power Control and Appliances (Bombay) Pvt. Ltd. and M/s.Sumeet Research and Holdings Pvt. Ltd. for recovery of a sum of Rs.1,18,55,375/- (Rupees One Crore Eighteen Lakhs Fifty Five Thousand and Three Hundred Seventy Five only) with interest at the rate of 18% from the date of filing of the suit till realization.

3. The prayer is also made for permanent injunction restraining the defendants, their men, agents, representatives, assigns or persons acting or any one claiming under or through them from in any manner dealing with, alienating or encumbering the suit schedule mentioned properties either by way of sale, mortgage, lease, joint development, or otherwise. 4. The schedule of properties reads as under: Item 1: All that piece and parcel of land and building bearing Shed No.F-11 at Ambattur Industrial Estate, Chennai situated in Saidapet Taluk and Chingleput MGR District, land measuring an extent of of about 9,827 sq.ft with built-up area measuring an extent of about 5,401 sq.ft. comprised in S.No.34 part & 49 part, Mogappair Village, bounded on the North By : 50 feet Road, East By : First Main Road, South By : F-12 Unit, and West By : F-10 Unit and situated within the Sub-Registration District of Konnur and Registration District of Chennai North. Item 2: All that piece and parcel of the property bearing Flat No.3C, 3rd Floor, RAAG DURBAR, measuring an extent of about 1,600 sq.ft along with 729/12143rd share in the land bearing Door No.52-A, Sterling Road, Nungambakkam, Chennai  600 034, the land bounded on the North By : Sterling Road East By : Property bearing No.13-A, Sterling Road, South By : Property belonging to Mrs.Valiammal, and West By : Private passage leading to Mrs.Valiammal's property comprised in Old S.No.351, Re-Survey No.541/2, C.O.No.1165 of 1926, Block No.30 and measuring 166' 6" North to South on the East 44' East to West on the South, 106' 6" East to West on the North and for the extent of 5 Grounds and 143 sq.ft or thereabouts and situated within the Sub- Registration District of Thousand Lights and Registration District of Chennai Central. Item 3: All that piece and parcel of the property bearing Shop No.1, 3rd Floor, Parsn Complex measuring an extent of about 1,800 sq.ft along with 988/46360th undivided share, rights, title and interest in the lands admeasuring 19 Grounds and 759 sq.ft or thereabouts situated at Door No.121, Mount Road, Chennai-600 002 and bearing Part R.S.No.3/1, R.S.3/8, 3/9 and 3/12 of Block No.1 of Mylapore Division, Nungambakkam Village O.S.No.3045 and comprised in Collector's Certificate No.323 situated in the Sub-Registration District of Thyagaraya Nagar and Registration District of Madras South, the land bounded on towards North East by remaining property bearing O.S.No.3/11 belonging to Sri.Balasubramanian on or towards North West by Kodambakkam Road, on or towards the South East by property bearing R.S.No.31/11 belonging to Sri.Balasubramanian and on or towards the South West by property belonging to P.Chitnis, 115 Kodambakkam High Road. Item 4: All that piece and parcel of the property bearing Shop No.2, 3rd Floor, Parsn Complex measuring an extent of about 1,500 sq.ft along with 895/46360th undivided share, rights, title and interest in the lands admeasuring 19 Grounds and 759 sq.ft or thereabouts situated at Door No.121, Mount Road, Chennai-600 002 and bearing Part R.S.No.3/1, R.S.3/8, 3/9 and 3/12 of Block No.1 of Mylapore Division, Nungambakkam Village O.S.No.3045 and comprised in Collector's Certificate No.323 situated in the Sub-Registration District of Thyagaraya Nagar and Registration District of Madras South, the land bounded on towards North East by remaining property bearing O.S.No.3/11 belonging to Sri.Balasubramanian on or towards North West by Kodambakkam Road, on or towards the South East by property bearing R.S.No.31/11 belonging to Sri.Balasubramanian and on or towards the South West by property belonging to P.Chitnis, 115 Kodambakkam High Road. 5. The plaintiff is a Chartered Accountant, engaged in financial consultancy and also undertakes various corporate restructuring assignments.

6. Based on his proficiency and experience in the field of finance, the plaintiff entered into an agreement dated 05.05.2008 with Mrs. Madhuri Mathur and third defendant M/s.Power Control and Appliances (Bombay) Pvt. Ltd., vide which, six properties, belonging to Mr.Vivek Mathur, were to be released from legal entanglements with the consideration to be extended by the plaintiff, and an escrow agreement was also agreed to be entered into between the parties, stipulating that properties were to be sold and sale proceeds were to be distributed in terms of the agreement, executed between the parties.

7. However, no escrow agreement was entered into, as contemplated. The defendants, thereafter, requested the plaintiff to extend financial assistance on simple terms, and undertake the exercise of asset reconstruction.

8. The plaintiff was assured that once the liabilities were settled and cleared with the funds of the plaintiff, the documents of the properties would be taken back from the various creditors, and once the properties were free from all encumbrance, it would be sold and from the sale proceeds, the amount repaid back to the plaintiff, along with interest.

9. The plaintiff agreed to take up the assignments of asset reconstruction without reference to the agreement dated 05.05.2008. The asset reconstruction also included debt reconstruction with the Lakshmi Vilas Bank, to whom the defendants owed more than Rs.7 Crores. The plaintiff, on the assurance of the defendants, agreed to finance money to the defendants from his own sources and also from the sources arranged by the plaintiff.

10. The plaintiff along with the defendant no.2 participated in the reconstruction process, who was acting on behalf of the defendant no.1 as also defendant nos.3 and 4. Subsequently, the defendant nos. 1 & 2, vide letter dated 22.05.2008 gave their mandate to the plaintiff for the exercise of reconstructing the Sumeet Group. The plaintiff, under the said agreement, paid a sum of Rs.79,00,000/- (Rupees Seventy Nine Lakhs only), that the defendant no.2 confirmed that the amount of Rs.79,00,000/- (Rupees Seventy Nine Lakhs only) has been disbursed by the plaintiff and the defendants also mentioned in the said letter how the funds were utilized by them.

11. An assurance was also given that on the sale of properties, the plaintiff's dues would be cleared out of the sale proceeds. It is also pleaded that thereafter, April-May, 2009, the defendants confirmed that the amount of Rs.94,00,000/- (Rupees Ninety Four Lakhs only) was due to the plaintiff. The plaintiff requested the defendants to create a security for repayment of amount due to him. The defendant no.2 also addressed a letter to The Lakshmi Vilas Bank, Chennai, confirming that Rs.79,00,000/- (Rupees Seventy Nine Lakhs only) was given as loan to the plaintiff and it was mutually agreed that a sum of Rs.94,00,000/- (Rupees Ninety Four Lakhs only) would be paid as full and final settlement. The Lakshmi Vilas Bank had the first charge over the immovable property and a request was made to the Bank not to release the documents unless Rs.94,00,000/- (Rupees Ninety Four Lakhs only) was paid to the plaintiff.

12. This letter was addressed by the defendant no.2 on behalf of the defendant no.3. Thereafter, the plaintiff advanced another sum of Rs.11,50,000/- (Rupees Eleven Lakhs Fifty Thousand only). The case of the plaintiff is that the plaintiff came to know through reliable sources that similar mandate was given by the defendants for asset reconstruction to a company name M/s.PARAS (Pridhvi Asset Reconstruction and Securitisation Co. Ltd) of Hyderabad, who paid loan due to The Lakshmi Vilas Bank and the documents from the Bank were taken away by the said company on the instruction of the defendants.

13. The Officials of the Bank are said to have acted hand in glove with the defendants and M/s.PARAS Co. Ltd., in releasing the documents without notice to the plaintiff.

14. The plaintiff, thus, alleges a breach of trust against the defendants and also claims that he was in the process of initiating suitable criminal proceedings against the defendants. On account of later development, the plaintiff requested the defendants to repay the amount.

15. The defendants, thereafter, issued a letter dated 12.05.2010 and also issued two post dated cheques for Rs.32,00,000/- (Rupees Thirty Two Lakhs only), drawn over Indian Overseas Bank and it was communicated to the plaintiff to deposit the cheques after written communication from the defendants. It was in July, 2010, the defendant no.2 directed the plaintiff to deposit the cheques for Rs.32,00,000/- (Rupees Thirty Two Lakhs only, but the same was returned dishonored with the remarks 'Exceeds Arrangement'. The plaintiff was also requested not to deposit other two cheques on the assurance that the amount would be settled.

16. The defendants, thereafter, issued another cheque, drawn on Indian Overseas Bank for Rs.1,14,00,000/- (Rupees One Crore Fourteen Lakhs only) towards total payment payable to the plaintiff, including interests. The plaintiff was asked to deposit the cheque on 09.08.2010, but he was informed that there was not sufficient fund in the Bank and the cheque was also returned for want of sufficient funds.

17. However, in view of the relationship between the parties, criminal proceedings were not initiated. In September 2010, the plaintiff was again approached for further financial assistance, but the plaintiff, being not convinced with the project, did not advance any loan. The plaintiff, thereafter, came to know that the properties at Bombay had been sold and dues of M/s. PARAS was cleared.

18. The plaintiff, further pleaded that the third floor, Gala Complex at Bombay was sold, though the defendants created a second charge over the said property at Bombay and the same was also intimated to The Lakshmi Vilas Bank in writing.

19. It is the case of the plaintiff in the suit that again in the last week of September 2010, the plaintiff was assured that the amount would be paid and that there was no encumbrance over two shops at Parsn Complex and the dues payable to the Central Excise Department stood paid. It was represented to the plaintiff that these properties were worth several crores of rupees. The request of the plaintiff to deposit the title deeds of these properties with him was not agreed. The plaintiff was only assured that his money would be repaid back.

20. It is pleaded that the properties set out in the schedule were the only properties standing in the name of the defendant no.1. The plaintiff, therefore, claimed an amount of Rs.1,14,00,000/- (Rupees One Crore Fourteen Lakhs only) along with interest at the rate of 18%.

21. The plaintiff also prays for injunction on the facts pleaded therein above.

22. The reading of the pleadings, referred to above, shows that the plaintiff claims that he had the second charge over the property, belonging to the defendants at Bombay. For the reasons best known, the plaintiff has not sought to enforce the mortgage, but this suit is only for recovery of the amount.

23. In a suit for recovery, the prayer for interim injunction, restraining the defendants from alienating the property, cannot be prayed for, as the remedy with the plaintiff / applicant, can at best be for attachment of property, by invoking the provisions of Order 38 Rule 5 of the Code of Civil Procedure. The property, which is not subject matter of lis, cannot be subjected to interim directions.

24. All the applications are, therefore, required to be disposed off in terms of the suit, as framed by the plaintiff.

25. The Order 38 Rule 5 of the Code of Civil Procedure reads as under: "5. Where defendant may be called upon to furnish security for production of property (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void."

26. A perusal of the above provision would show that the Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct to delay the execution of any decree that may 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. 27. Further still, Hon'ble Supreme Court of India in the case of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, 2008 (2) SCC 302, has observed as under: "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 and strictly in accordance with the Rule. The purpose of Order 38, Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements, under threat of attachment."

28. In light of the express provisions of Order 38, Rule 5 CPC and the observations of the Hon'ble Supreme Court in the matter of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, supra, the position of law that emerges is as under: (i)The Court, before calling upon the defendant to furnish security for production of property, has to be satisfied that the defendant, with an intent to obstruct or delay the execution of any decree that may 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. This satisfaction of the Court has to be objective and not subjective in as much as there has to be a positive and definite material before the Court to enable the Court to come to a prima facie conclusion that the defendant is about to dispose of the whole of part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him. Merely because a suit is filed or about to be filed against him, the defendant is not debarred from dealing with his property. Accordingly, mere fact that some material is placed before the Court showing that defendant has disposed of some of his properties would by itself not be sufficient for the Court to exercise the powers conferred upon it under Order 38, Rule 5 CPC without their being further material on record to show that the property is being disposed off by the defendant with an intention to frustrate the probable decree that may be passed against him The intention of the defendant to remove or dispose of the whole or part of his property, with a view of obstructing or delaying the execution of any decree that may be passed against him is sine qua non before the power under Order 38, Rule 5 can be exercised by the Court. However, it may also be observed here that the question of ascertaining the intention of the defendant is a vexed question having no easy solution and precise mathematical tests. The true intention of the defendant in disposing of the whole or part of his property would thus, have to be determined by the Court having regard to the particular facts and circumstances of each case. (ii) The Plaintiff- Applicant is required to satisfy the Court that all the ingredients specified in Order 38, Rule 5(1) CPC exist before the application filed by the Plaintiff-Applicant can be allowed. The same is evident from the reading of Clause 4 of the Order 38, Rule5. Merely because the defendant will not be prejudiced cannot be a ground in itself for the Plaintiff- Applicant to argue that the power under Order 38, Rule 5 CPC should be exercised by the Court. Accordingly, the Plaintiff-Applicant is required to place sufficient material before the Court so as to enable the Court to form a prima facie opinion that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property. In order to do so, the Plaintiff-Applicant may be required to swear an affidavit in support of his application detailing the name, address and sufficiently describing the identity of the person or persons from whom he has received the information about the attempts of the defendant to dispose of the whole or any part of his property with an intent to obstruct or delay the execution of any decree that may be passed against him. (iii) As the matter with regard to the power of the Court to call upon the defendant to furnish security for production of property, even before the judgment, has been detailed and expressly provided in Order 38, Rule 5 CPC, the Court cannot resort to its inherent powers under Section 151 CPC and call upon the defendant to furnish security for production of property in case the ingredients of Order 38, Rule 5(1) CPC are not fulfilled. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the matter of Nahar Industrial Enterprises Ltd v. Hong Kong & Shanghal Banking Corporation, 2009 (8) SCC 646, wherein it has been held that where a matter has expressly been provided for in the CPC, inherent power cannot be resorted to.

29. The remedy with the plaintiff in a suit for recovery to secure the decree to be passed is one provided under Order 38 Rule 5 of the Code of Civil Procedure. The Court, on being satisfied on the condition stipulated therein, can always order attachment of the properties, pending disposal of the suit, but certainly no injunction can be granted as claimed in the suit. In view of settled law, applications are decided as under: O.A.No.508 of 2011: i) In the affidavit filed by the applicant, it has been stated that on 1st March, 2011, this Court allowed A.No.7419 of 2010, and ordered attachment of the property described in schedule to Judge's Summons in the said application. O.A.No.1329 of 2010 was closed in view of the attachment of the property. It is also pleaded that while attaching the properties, this Court had observed that the notice was served on the respondents and that their names were printed in the cause list, but respondents have not entered appearance, through counsel and the defendant no.1 had chosen not to contest the application. In A.No.7420 of 2010 where the petitioner seeks interim decree, notice was issued by this Court. ii) It is also pleaded case of the applicant that three properties in Chennai were attached by the Bailiff attached to this Court and the concerned Sub-Registrar was also duly intimated. Whereas with regard to other property, the order was communicated to the District Munsif's Court, Ambattur, which was also subsequently attached by the Bailiff attached to the said Court and the concerned Sub-Registrar was duly intimated. iii) The case of the applicant is that when encumbrance certificate was claimed, it came to his notice that the property at Plot No.F-11, Ambattur Industrial Estate, Chennai, was sold on 29.12.2010 to M/s.Surana Corporation Ltd and registered as Document No.1344 of 2011 on the file of the Sub- Registrar, Ambattur. The sale is, therefore, claimed in violation of injunction order passed by this Court. iv) Allegation of fraud has been alleged against respondents in evading service and it has been stated that respondents have violated the order of injunction intentionally. It is pleaded that the sale deed executed in favour of M/s.Surana Corporation Ltd is null and void, as it has been fraudulently brought concealing the order of injunction dated 23.12.2010 passed by this Court, therefore, it is pleaded that the property has to be reverted back to the same position, as it stood prior to execution and registration of the sale deed. v) On the pleadings referred to above, the application for injunction has been made. vi) On consideration, I find that this application is totally misconceived. It is well settled law that this Court, by way of interim direction, cannot grant relief, which the applicant would not be finally entitled to in the event of success in the suit. The suit for recovery of money, where the property is not the subject matter of lis, though could be attached, but certainly no injunction can be issued, restraining respondents from dealing with the property, as claimed. Therefore, the application for injunction is ordered to be dismissed. O.A.No.509 of 2011: i) The prayer made again in this application is to grant interim injunction, restraining respondent no.5 from in any manner encumbering, alienating or dealing with the property described in the schedule to the application. ii) This application, on the face of it, is misconceived. The respondent no.5 is not a party to the suit, therefore, no application for interim injunction lies against respondent no.5. Furthermore, there is no material on record to show that the plaintiff / applicant has taken any steps to implead respondent no.5 as party to the main suit. iii) It is also well settled law that the transfer made in violation of order of attachment, cannot come in way of execution of decree, by sale of said property, but certainly the relief claimed in this application cannot be granted at this stage against a person, who is not a party to main suit. iv) Consequently, this application is ordered to be dismissed. A.No.2726 of 2011: i) This application, under Order 39 Rule 2A and Section 151 of the Code of Civil Procedure, has been moved for punishing the respondents for violating the interim injunction, granted by this Court. ii) It is not disputed that plaintiff / applicant has also filed another application under Order 39 Rule 2A against parties to the suit, which is pending adjudication. The second application has been moved by impleading the respondent no.5 as party to the suit. iii) The allegations made in this application are that inspite of order of injunction, sale deed was executed in favour of respondent no.5 and thus, there is intentionally deliberate violation of injunction order passed by this Court for which respondents deserve to be punished. iv) The question, whether there was any violation of injunction order by the party to the suit, has to be determined in the application moved under Order 39 Rule 2A against defendants to the suit. v) The second application, on the face of it, is not competent. Prima facie, there is nothing on record to show that injunction order was served on respondent no.5 or that other defendants had disclosed about the injunction with regard to sale of properties. vi) Therefore, it is not understood how the second application under Order 39 Rule 2A has been moved against defendants by impleading respondent no.5 as additional party, though he is not party to the original suit, that too without liberty of this Court. vii) Learned Senior Counsel appearing on behalf of the applicant / plaintiff, in support of this application, placed reliance on a judgment of the Hon'ble Full Bench of this Court in the case of Century Flour Mills Ltd. vs. S.Suppiah and others, AIR 1975 Mad 270, wherein this Court was pleased to lay down, that the provisions of Order 39 of the Code of Civil Procedure do not place any limit on the scope of the inherent power under Section 151 of the Code of Civil Procedure. viii) The finding, recorded by the Hon'ble Full Bench of this Court, reads as under:

5. Since the matter is not res integra, the best way to approach the question is to refer to the decided cases and in the light of it, to come to a conclusion. Cases are all agreed that, whether it is a stay order, or an injunction, essentially, there is no difference between them except that in the case of a stay order, it is addressed to the court concerned, and in the other, to the person inhibited from doing a certain thing. There is also no difference that, so far as Order XXXIX, C.P.C. is concerned, it confers only limited powers and would not be of assistance in circumstances as in the present case. In Mulraj v. Murti Raghunathji AIR 1967 SC 1386, , the Supreme Court observed- "As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of it, it must stay its hand; if it does not to so, it acts illegally. Therefore in the case of a stay order as opposed to an order of injunction, as soon as the court has knowledge of it. it must stay its hand and further proceedings are illegal, but so long as the court has no knowledge of the stay order, it does not lose the jurisdiction to deal with the execution which it has under the Civil Procedure Code." It went on to observe that, though the court to which the stay order was addressed, when it had no knowledge of the stay order, could not be said to be acting without jurisdiction in making an order contrary to the stay order, nevertheless, it is not powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court had knowledge of the stay order. The Supreme Court went on- "We are of opinion that Section 151, C.P.C. would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under Section 151 and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it be do so." 7. In Manoharlal v Seth Hiralal, AIR 1962 SC 527, the view was expressed that Section 151, C.P.C. itself said that nothing in the Code should be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. It, therefore, follows that Order XXXIX, C.P.C. should not be considered as placing any limit on the scope of the inherent power under Section 151. In Senapathi v. Sri Amba Mills, , which was quite akin to the circumstances in the instant case, a Division Bench consisting of Anantanarayanan, Offg. C. J. and Natesan J., after accepting the apology and dismissing petition for contempt for violating an injunction prohibiting the holding of a meeting, observed- "most certainly the proceedings of the meeting were void, the meeting itself having been conducted in disobedience of the interim injunction, and that will equally apply to the resolution or resolutions passed therein. We make a record to that effect. This situation at law has not been disputed by any of the learned counsel." Though the learned Judges did not give the reason for their view, we are inclined to think, with respect, that the conclusion so drawn is unexceptionable, as we shall show presently. 9. In our opinion, the inherent powers of this court under Section 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court's orders. But in this case it is not necessary to so to that extent as we hold that the power is available under Section 151. C.P.C. 10. Mr.Panchapakesa Iyer, for the respondent, however, contends that our view, as indicated above, would prevail only as between the parties in court, but when third parties have acquired rights by reason of something happening though it is in contravention or in disobedience of the order of court, the legal position would be different. He says that, since the resolutions had been passed at the meeting on 14-9-1974, which had vested rights in third parties, it would be beyond the power of this court to make an order, which will have the effect of affecting or interfering with or setting aside such rights in third parties. In our opinion, the question of third parties' rights being affected does not arise in the context. We are concerned with a meeting which had been prohibited and not with what happened at the meeting. If the meeting held was in violation of the court's order and the parties affected approach this court and ask for relief on the ground that what happened at the meeting would be destructive of their standpoint; this court on a consideration of the entire circumstances and facts will have to put back the parties in the same position as they stood prior to the holding of the meeting. That is not to say that, in doing so, the court interferes with third parties' rights, All that this court would do in such circumstances is that, since the meeting was prohibited, but all the same it was held, in violation of the order of this court, it would refuse to recognise the holding of the meeting as a legal one, Our attention has been invited for the respondents to Puzhakkal v. Mahadeva Pattar (AIR 1919 Mad 772). That was an extreme case where a Karnavan was held to be liable to repay the debt which he had incurred for necessity of the tarwad in contravention of an order forbidding him from incurring debts. The defence in the suit to enforce the debt was that the incurring of the debt was in violation of a prohibitory order. The court declined to accept the defence. It may be seen at once that the justice of the case demanded that the Karnavan was made liable to the debt, more especially when it was incurred for necessity of the tarwad. In that case, the learned Judges confined themselves to a consideration of Order XXXIX and their attention was not drawn to their inherent power under Section 151, C.P.C. Even if their powers under Section 151 had been invoked, in that case too, we have no doubt that the court would have come to the same conclusion because of the exigencies of justice in that case. In Bal Bhaddar v. Balla, AIR 1930 All 387 (2) the court was concerned with an alienation made contrary to the order of injunction. It was no doubt held that the alienation could not be held to be invalid. But that was solely on the basis of the provisions of Order XXXIX, Lord Krishna Sugar Mills Ltd. v. Abanash Kaur, (1974) 44 Com Cas 210 = (1972 Tax LR 1667) (Delhi), which was cited for the respondents, was concerned with a different situation and we do not think it is of assistance in the present case. We are of the view that none of these cases cited for the respondents, which we have referred to above, leads us to the conclusion that this court cannot legitimately invoke its inherent powers in the present circumstances. ix) Learned Senior Counsel for the applicants also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Surjit Singh and Others vs. Harbans Singh and Others, (1995) 6 SCC 50, wherein, the application, moved by the assignees under Order 22 Rule 10 for permission for their impleadment as parties to justify assignment, was rejected, by holding as under: "The assignment was by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which the assignor had been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation / assignment was made. If Court were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation / assignment as having not taken place at all for its purposes. Once that is so, the assignor and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees- respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing." x) This judgment will rather go against the applicant, as it is not open to the applicant / plaintiff to implead respondent no.5 as party to this application or seek any relief against him, as respondent no.5 would have no independent right and would be bound by any order, which may be passed against defendants, in view of the fact that the transfer in favour of respondent no.5 was after passing of injunction order, in case, it is proved that the transfer was after injunction order was served on defendant nos. 1 to 4, i.e. vendors of respondent no.5. xi) Learned Senior Counsel for the applicant, thereafter, placed reliance on a judgment of the Hon'ble Supreme Court in the case of Delhi Development Authority vs. Skipper Construction Co. (P) Ltd and another, 1996 (4) SCC 622, wherein the Hon'ble Supreme Court was pleased to lay down that when an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right in exercise of its inherent power. xii) The facts of the said case are totally different, but even if the ratio is applied, the judgment will be applied after a finding is recorded on the application filed under Order 39 Rule 2A, by the applicant / plaintiff against defendant nos. 1 to 4. xiii) The Hon'ble Supreme Court in the case of Delhi Development Authority vs. Skipper Construction Co. (P) Ltd and another, 1996 (4) SCC 622, was pleased to lay down as under: "17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd.Idris v. R.J. Babuji [1985 (1) S.C.R.598], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions to in additing to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach [of undertaking]". 18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985 (1) All.E.R. 211], Sir Robert Megarry V-C observed: "I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be saidthat although they ere liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought nat to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them." 19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S.Suppiah & Ors. [A.I.R.1975 Madras 270] and Sujit Pal v. Prabir Kumar Sun [A.I.R.1986 Calcutta 220]. In Century Flour Mill Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong-doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to be exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognize that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

20. In Suraj Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. xiv) Learned Senior Counsel for the applicant / plaintiff, thereafter, placed reliance on a judgment of the Hon'ble High Court of Bombay in the case of Keshrimal Jivji Shah and another vs. Bank of Maharashtra and others, 2004 Comp. Cas (122)  831, wherein, the Hon'ble Division Bench of the Hon'ble Bombay High Court, was pleased to lay down that transfer of mortgaged property in contravention of prohibitory order, is illegal and transferee gets no valid title. xv) This judgment again can only be used to enforce the decree, if passed against defendants finally in execution, but certainly cannot be the ground for grant of injunction under Order 39 Rule 1 & 2 of the code of Civil Procedure. For the sake of repetition, it may be mentioned that the property is not subject matter of lis in the suit. xvi) Learned Senior Counsel for the applicant, thereafter placed reliance on the judgment of the Hon'ble Supreme Court in the case of All Bengal Excise Licensees' Association vs. Raghabendra Singh and others, 2007 (11) SCC 374, wherein the Hon'ble Supreme Court was pleased to lay down as under: "Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondents had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them, which was done in clear breach of the order of the Court by restoring the status quo ante by canceling the lottery wrongfully held by them. The High Court should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby. A party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. Where in violation of a restraint order or an injunction order against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power will not only be available under Section 151 CPC, but it is bound to be exercised in that manner in the interest of justice and public interest." xvii) There can be no dispute that this proposition, on the question to determine, is even before adjudication of the matter where there has been contempt specially in a case where application under Order 39 Rule 29 against the alleged contemner is yet to be decided. xviii) Reliance was also placed on a judgment of the Hon'ble Division Bench of this Court in B.Bhoormal Tirupati vs. The Additional Collector of Customs, AIR 1974 Mad 224, laying down as under: " var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-87326-4']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google- analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();

3. The only point that arises is whether the service by registered post effected on 13-5-1969, which was returned with the endorsement 'left', is sufficient notice. Section 153 of the Act states that any order or decision passed or any summons or notice issued under the Customs Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; sub-sec. (b) of S. 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post dully addressed to the appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to Section 27 of the General Clauses Act, which states that where any Central act requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre- paying and posting by registered post, a letter obtaining the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement 'left' is not sufficient to prove the contrary. Apart from it, a reading of the section indicates that the proof to the contrary can only be limited to proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post. We find no difficulty in coming to the conclusion that there has been proper service of notice. The writ petition was rightly dismissed. This appeal fails and it is dismissed." xix) The reliance placed by the learned Senior Counsel is totally misplaced, as the Court has interpreted Section 153 of the Customs Act, 1962, but has not laid down any general proposition. Service has to be effected on the party and no presumption of service can be drawn. As already above, this question is yet to be determined in a petition filed. xx) The application moved by the applicant seems to be nothing but misuse of process of this Court. In a suit for recovery, repeated applications are being filed, claiming the same relief, once the order of attachment has already been passed by this Court, to secure the decree to be passed in favour of the applicant. It is not understood how subsequent applications are competent. xxi) The applicant has no right to move repeated application, specially when prayer for injunction in a suit for recovery of money, is prima facie not competent, and order of attachment will protect the right of plaintiff to execute the decree of the Court, as the executing Court can always ignore transfers made after attachment. xxii) It may be pertinent to mention that learned Senior Counsel for the respondents, on the other hand, placed on a judgment of the Hon'ble Supreme Court in the case of Hamda Ammal vs. Avadiappa Pathar and others, JT 1990 (4) SC 391, wherein the Hon'ble Supreme Court was pleased to lay down that registration affects retrospectively from the date of execution of sale deed, and not from date of registration. xxiii) This question does not arise for the present, as the validity of the sale deed is to be considered, while execution of decree, if any passed in favour of the plaintiff / at the time of deciding the application, moved under Order 39 Rule 2A against defendants / respondents. xxiv) The Full Bench Judgment of this Court and the law laid down by the Hon'ble Supreme Court, on which, strong reliance has been placed can be applied only in case defendants are ultimately found guilty of contempt of Court and this Court feels that in the interest of justice, inherent powers, under Section 151 of the code of Civil Procedure, are required to be invoked to do substantial justice. Otherwise while exercising contempt jurisdiction, this Court cannot set aside the sale deed, as the remedy is to challenge the sale deed in accordance with law. xxv) In this case, the subject matter of the property is not in dispute, as the suit is merely a suit for recovery. The attachment of the property is only with an intent to protect the rights in the decree and it is always open to the Executing Court to ignore the transfer made with an intent to defeat the decree, if so proved. xxvi) The plaintiff / applicant certainly is not entitled to relief prayed for in this application, which is misconceived. Repeated applications on the same cause of action one after another is nothing but misuse of process of the Court, which deserves to be depreciated. xxvii) Consequently, this application is also dismissed. A.No.3581 of 2011: In view of the order passed in A.No.2726 of 2011, this application has been rendered infructuous, and it is accordingly ordered to be dismissed.

30. Consequently, O.A.Nos.508 and 509 of 2011 and A.No.2726 of 2011 are ordered to be dismissed. Whereas A.No.3581 of 2011 is dismissed as having been rendered infructuous. No costs.