Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 7-9-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA No.264 of 2009andMP No.1 of 2009 The ManagerState Bank of IndiaCommercial BranchSAM Branch, Anna SalaiChennai 600 002... Appellant/III Respondentvs1.Ananthalakshmi2.K.Namitha Bhuvaneswari3.Renuka Devi4.Nirmala Vale 1 to 4 respondents represented by their Power of Attorney E.Pragdeeswaran5.K.Raghavaram6.K.Sivaram Selvakumar.. Respondents/1 to 4 Applicantsand 1 & II RespondentOriginal side appeal preferred under Order 36 Rule 11 of O.S.Rules against the order of this Court made in O.A.No.65 of 2008 inC.S.No.27 of 2008 dated 14.8.2008.For Appellant: Mr.N.R.Chandran Senior Counsel for Mr.K.SankaranFor Respondents: Mr.V.Nagusah for RR1 to 4JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges an order of the learned Single Judge of this Court granting ad-interim injunction in favour of the respondents 1 to 4/plaintiffs in a suit filed by them in C.S.No.27 of2008.2.The Court heard the learned Senior Counsel for the appellant and also the learned Counsel for the respondents 1 to 4. https://hcservices.ecourts.gov.in/hcservices/

The appeal has arisen under the following circumstances: (a) The plaintiffs 1 to 4 are the daughters and the defendants 1and 2 are the sons of one Mr.R.Kaliappan who died intestate on5.8.1991, leaving behind the defendants 1 and 2 and also his wifeSarojini Devi. His wife also died leaving intestate on 20.9.1999.The property of Kaliappan by operation of law was devolved upon the plaintiffs and the defendants 1 and 2 and their mother, and thus each of the plaintiffs is entitled to 1/7th share in the properties of Kaliappan. The plaintiffs are also entitled to 1/7th share each in the immovable property namely house, ground and premises in PlotNo.875, J-24, New No-J-1, 17th Main Road, Anna Nagar, Madras, more fully described in the Schedule. While so, the Schedule property was furnished as security by the said Sarojini Devi and the defendants 1and 2 to the appellant/third defendant bank in respect of the loan obtained by M/s.Kalsar Marketing Agency P Limited and M/s.KalsarPetro Products P Limited.

Advancing arguments on behalf of the appellant, the learnedSenior Counsel Mr.N.R.Chandran would submit that the respondents 1 to4 had no subsisting right, title or interest in the suit property during the pendency of the suit for partition against the appellant; that the respondents 5 and 6 and their mother Sarojini Devi had https://hcservices.ecourts.gov.in/hcservices/ already produced a legal heirship certificate dated 11.3.2007, and availed loan stating that they were the only legal heirs of lateKaliappan; that the said certificate had not been rejected by the Tribunal; that the statement of claim of respondents 1 to 4 was not supported by any material evidence; that the defendants 1 and 2 had not affirmed the claim of the respondents 1 to 4/plaintiffs in any manner by affidavit or otherwise; that the plaintiffs had not been staying in the suit property; that under the circumstances, they had lost their right to claim on the ground of limitation since their father had passed away as early as 1991, and the claim before the Recovery Officer was lodged much later in 2007; that the legalheirship certificate was issued by the Tahsildar, Saidapet, while the earlier one produced by the defendants 1 and 2 and their mother was issued by the Tahsildar, Egmore, Nungambakkam Taluk, within whose jurisdiction the suit property was situated; that there were two legal heirship certificates; that in such a case, the Tribunalconstituted under the Act has held that the respondents 1 to 4 have to produce the succession certificate; that instead of directing the respondents in that manner, the learned Single Judge granted injunction against the sale of the security; that it has barred the right of the appellant bank to effect recovery of the decreetalamount which is more than Rs.4 crores as on date; that the injunction granted by the learned Single Judge lacked merit; that the suit itself was a collusive one filed at the instance of the respondents 5and 6; that the appellant was a public institution; that the appellant was greatly prejudiced in the recovery of the amount due and put to loss due to the injunction granted; that it is pertinent to point out that the respondents 1 to 4 were married daughters of Kaliappan and having settled elsewhere, the present suit has been filed by them without claiming any right from 1991; and that in such circumstances, the order of the learned Single Judge has got to beset aside.

The Court heard the learned Counsel for the respondents 1 to4.

It was a suit where the plaintiffs have sought for 4/7th share in an immovable property which admittedly belonged to one Kaliappanwho died intestate on 5.8.1991. As could be seen from the available materials, the entire property was brought for sale pursuant to anex-parte decree made, and an attachment was also made on 6.10.2004 by the Recovery Officer for the recovery of the loan advanced by theappellant/third defendant bank to M/s.Kalsar Marketing Agency PLimited and M/s.Kalsar Petro Products P Limited for which the defendants 1 and 2 and their mother Sarojini Devi have furnished the immovable property in question as security. The said attachment order was sought to be set aside by the plaintiffs 1 to 3 by filing applications before the Recovery Officer who dismissed the same. They were appealed against in MA Nos.5 and 6 of 2006 before the DRT,and those appeals were also dismissed. Thereafter the plaintiffs have filed MA Nos.208 and 209 of 2007 before the Debt RecoveryAppellate Tribunal, wherein the DRAT made an order of dismissal of the appeals pointing out that the DRT constituted for the specific purpose of adjudicating upon the dispute between the bank and financial institutions on one hand and the borrowers and guarantorson the other, cannot decide any civil dispute with reference to the https://hcservices.ecourts.gov.in/hcservices/ claim of a share in the mortgaged properties, and hence the appellants will have to work out their rights before a competent forum in accordance with law, and thus there was no illegality or irregularity found in the impugned orders so as to reverse the same and has dismissed the appeals. In such circumstances, the instant suit C.S.27 of 2007 was filed by the respondents 1 to 4 seeking the relief of partition claiming 4/7th share in the property. They have also filed the legal heirship certificate.

It is also not in controversy that they are also the daughters of Kaliappan who was the owner of the property, and he also died intestate. It is not the case of the appellant/third defendant bank that the money was advanced to the plaintiffs, nor they stood as guarantors or furnished the property in question as security for the loan availed by the said companies. In the proceedings initiated by the appellant/third defendant as stated above, the plaintiffs admittedly were not shown as parties; but, the entire property was furnished as security by the defendants 1 and 2, the sons, and alsoMrs. Sarojini Devi, the wife of the said Kaliappan, while the plaintiffs 1 to 4 by operation of law were entitled to 4/7th share. Since the entire property was attached and brought for sale, there arose a necessity for the plaintiffs to file the suit seeking for division of the property and the instant application seeking interim injunction to restrain the third defendant/appellant bank from bringing their 4/7th share in the Schedule property for sale. Nowthe contention put forth by the appellant's side that the plaintiffs did not have subsisting interest in the property cannot be countenanced. Apart from that, the other contention that at the time of furnishing the security, the defendants 1 and 2 and also SarojiniDevi furnished a legal heirship certificate wherein they were shown as the only legal heirs of Kaliappan cannot be a reason to deny the relief of interim injunction while the plaintiffs were able to show that they were the daughters of Kaliappan who died intestate, and they were also entitled to the respective shares by operation of law.

Apart from the above, the contentions put forth by the learnedSenior Counsel for the appellant that the property could be sold inauction, and the bank is also prepared to deposit 4/7th share of the sale proceeds cannot be accepted even for a moment while the plaintiffs 1 to 4 have made out a prima facie case that they are entitled to 4/7th share in the property and they had nothing to do with the transaction in question. Therefore, the appellant/thirddefendant has got to be necessarily restrained from bringing their4/7th share in the Schedule property for sale. The learned SingleJudge was perfectly correct in granting interim injunction as asked for.