It is, therefore, clear from the counter filed by the respondents that an undertaking has been given not to alienate the property; by the public auction was conducted only by the Park Town Benefit Fund Limited and for which, the respondents cannot be found at fault. Similarly, the non-mentioning of the registered mortgage will not amount to suppressing a material fact, because knowledge can be imputed considering the fact that it is a registered mortgage. However, learned counsel for the applicant stated that these respondents are not owning any other immovable property and the respondents may leave India at any moment in order to escape from the liability. Apart from the general allegations, no document has been furnished to show that the respondents are making attempts to leave the jurisdiction of High Court. Hence, I am of the view that the respondents have not flouted the undertaking given by them and, as such, warrant of arrest cannot be issued against the respondents. However, to prevent the respondents from leaving the country, they should be directed to surrender the passport in the Court.1
2. The case in brief is as follows :
The applicant/plaintiff filed a suit for recovery of a sum of Rs. 51,21,932/- towards principal and a sum of Rs. 14 lakhs and odd towards interest from 11-5-1998 to 5-7-1999 aggregating a sum of Rs. 65 lakhs and odd, The applicant also filed O.A. No. 2563 of 1999 to attach the properties namely, door No. 6, Bishop Garden, Greenways Road, Adyar, Chennai and also door No. 7, Bishop Garden, Greenways Road, Chennai. The first respondent filed an undertaking affidavit that he will not alienate the property bearing door No. 7 and he has given the market value of the property as Rs. 1.22 crores. On the basis of the undertaking affidavit, this Court recorded the same and closed the application by an order dated 13-10-1999; but to the surprise M/s. Balaji & Company published a notice stating that the properties were mortgaged to Purasawalkam Permanent Fund Limited and the same will be brought for public auction on 2-12-1999. The first respondent purposely suppressed the existence of the mortgage in the undertaking affidavit and thereby mislead the Court to record the undertaking. M/s. Balaji & Company sold both the properties to realise the mortgage amount and the balance amount has been appropriated for the income-tax dues of the respondents. Now, both the properties are not available for realisation of decree amount. The only intention of the respondents is to cheat the applicant by not paying the amount and to leave no properties to realise the decree amount in future. The applicant apprehend that the respondents may leave India at any moment with an ulterior motive to escape from the liability. They do not own any other immovable property in India. Only with a mala fide intention to cheat the applicant, the first respondent gave a false undertaking to escape the liability and delay the execution of recovery. It is just and necessary to issue a warrant to arrest the respondents and bring them before the Court.
3. The first respondent filed a counter-affidavit, denying the various allegations. The house bearing door No. 6, Bishop Garden, Greenways Road, Adyar was mortgaged to Purasawalkam Permanent Fund Limited and the house bearing door No. 7 was mortgaged to Park Town Benefit Fund Limited by separate registered mortgage deeds. The applicant is well aware of these things. The first respondent gave the undertaking that he will not alienate the property comprised in door No. 7 pending disposal of the suit. The applicant is well aware of the fact that the said property was mortgaged to Park Town Benefit Fund Limited. No undertaking was given by him relating to the house bearing door No. 6. The mortgage was effected through a registered mortgage deed and, as such, the applicant is well aware of the same. Now, door No. 6 has been auctioned by the Purasawalkam Permanent Fund Limited and similarly door No. 7 was also brought for auction in order to realise the mortgage debt. He has nothing to do with the auction and he has not received any part of the sale proceeds. He has not violated the undertaking given to the Court. The applicant knew fully well that the property had been mortgaged, but have not impleaded the mortgagees as parties to the suit and the application. He had no intention of leaving the country in the near future and the apprehension is only imaginary. Hence, the application is liable to be dismissed.
3A. Heard the learned counsel of both sides.
4. The points that arise for consideration are :
1) Whether any warrant to arrest the respondents has to be issued?
2) Whether the respondents have flouted the undertaking given by them?
3) To what relief?
5. Points : Learned counsel for the applicant stated that the first respondent gave an undertaking that he would not alienate the property bearing door No. 7, Bishop Garden, Greenways Road, Chennai and now contrary to the undertaking, the property has been sold by M/s. Balaji & Company and under the circumstance, warrant has to be issued to arrest the respondents and they should be directed to furnish security, failing which, to commit them to civil prison. He further stated that believing the representation only, O.A. No. 2563 of 1999 for attachment of the properties was closed. The first respondent by giving the undertaking has misled the Court and cheated the applicant also.
6. Per contra, learned counsel for the respondents contended that the undertaking has been given only in respect of door No. 7. The property was already mortgaged to Park Town Benefit Fund Limited is known to the applicant himself and the omission of mentioning the same in the affidavit cannot be considered as suppressing any fact. It is necessary to state that the mortgage in favour of the Benefit Fund Limited is a registered one and, as such, it will definitely find place in the encumbrance certificate. Because of this only, no mention was made in the undertaking affidavit. If the mortgage has been created by deposit of title deeds and in case the respondents failed to disclose the same at the earlier point of time, then it may amount to suppression of material fact. But in the present case, the property was already mortgaged to the Benefit Fund Limited under a registered mortgage and the applicant himself is well aware of the same. Now, the respondents have not sold the property, but the mortgagee alone brought the property bearing door No. 7 for sale and the sale proceeds have been adjusted for the claim of the mortgage and the balance was also paid to the income-tax dues. These respondents have not received any money from the mortgagee or from the auction purchasers.
7. It is, therefore, clear from the counter filed by the respondents that an undertaking has been given not to alienate the property; by the public auction was conducted only by the Park Town Benefit Fund Limited and for which, the respondents cannot be found at fault. Similarly, the non-mentioning of the registered mortgage will not amount to suppressing a material fact, because knowledge can be imputed considering the fact that it is a registered mortgage. However, learned counsel for the applicant stated that these respondents are not owning any other immovable property and the respondents may leave India at any moment in order to escape from the liability. Apart from the general allegations, no document has been furnished to show that the respondents are making attempts to leave the jurisdiction of High Court. Hence, I am of the view that the respondents have not flouted the undertaking given by them and, as such, warrant of arrest cannot be issued against the respondents. However, to prevent the respondents from leaving the country, they should be directed to surrender the passport in the Court.
8. For the reasons stated above, the application fails and is dismissed. However, the respondents are directed to surrender their passport, if any, into the Court within a period of two weeks and they should not leave the jurisdiction of this Court without the permission of this Court.
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Madras High Court
V. Balakrishnan vs T.M. Gowrieshan And Anr. on 20 July, 2000
1. Application filed by the applicant/plaintiff under Order 16, Rule 8 of Original Side Rules read with Order XXXVIII, Rules 1 to 4 of Civil Procedure Code to issue warrant to arrest the respondents and bring them before the Court to show cause why they should not furnish the security for the suit claim and commit them to civil prison if they fail to furnish the security towards the suit claim.2. The case in brief is as follows :
The applicant/plaintiff filed a suit for recovery of a sum of Rs. 51,21,932/- towards principal and a sum of Rs. 14 lakhs and odd towards interest from 11-5-1998 to 5-7-1999 aggregating a sum of Rs. 65 lakhs and odd, The applicant also filed O.A. No. 2563 of 1999 to attach the properties namely, door No. 6, Bishop Garden, Greenways Road, Adyar, Chennai and also door No. 7, Bishop Garden, Greenways Road, Chennai. The first respondent filed an undertaking affidavit that he will not alienate the property bearing door No. 7 and he has given the market value of the property as Rs. 1.22 crores. On the basis of the undertaking affidavit, this Court recorded the same and closed the application by an order dated 13-10-1999; but to the surprise M/s. Balaji & Company published a notice stating that the properties were mortgaged to Purasawalkam Permanent Fund Limited and the same will be brought for public auction on 2-12-1999. The first respondent purposely suppressed the existence of the mortgage in the undertaking affidavit and thereby mislead the Court to record the undertaking. M/s. Balaji & Company sold both the properties to realise the mortgage amount and the balance amount has been appropriated for the income-tax dues of the respondents. Now, both the properties are not available for realisation of decree amount. The only intention of the respondents is to cheat the applicant by not paying the amount and to leave no properties to realise the decree amount in future. The applicant apprehend that the respondents may leave India at any moment with an ulterior motive to escape from the liability. They do not own any other immovable property in India. Only with a mala fide intention to cheat the applicant, the first respondent gave a false undertaking to escape the liability and delay the execution of recovery. It is just and necessary to issue a warrant to arrest the respondents and bring them before the Court.
3. The first respondent filed a counter-affidavit, denying the various allegations. The house bearing door No. 6, Bishop Garden, Greenways Road, Adyar was mortgaged to Purasawalkam Permanent Fund Limited and the house bearing door No. 7 was mortgaged to Park Town Benefit Fund Limited by separate registered mortgage deeds. The applicant is well aware of these things. The first respondent gave the undertaking that he will not alienate the property comprised in door No. 7 pending disposal of the suit. The applicant is well aware of the fact that the said property was mortgaged to Park Town Benefit Fund Limited. No undertaking was given by him relating to the house bearing door No. 6. The mortgage was effected through a registered mortgage deed and, as such, the applicant is well aware of the same. Now, door No. 6 has been auctioned by the Purasawalkam Permanent Fund Limited and similarly door No. 7 was also brought for auction in order to realise the mortgage debt. He has nothing to do with the auction and he has not received any part of the sale proceeds. He has not violated the undertaking given to the Court. The applicant knew fully well that the property had been mortgaged, but have not impleaded the mortgagees as parties to the suit and the application. He had no intention of leaving the country in the near future and the apprehension is only imaginary. Hence, the application is liable to be dismissed.
3A. Heard the learned counsel of both sides.
4. The points that arise for consideration are :
1) Whether any warrant to arrest the respondents has to be issued?
2) Whether the respondents have flouted the undertaking given by them?
3) To what relief?
5. Points : Learned counsel for the applicant stated that the first respondent gave an undertaking that he would not alienate the property bearing door No. 7, Bishop Garden, Greenways Road, Chennai and now contrary to the undertaking, the property has been sold by M/s. Balaji & Company and under the circumstance, warrant has to be issued to arrest the respondents and they should be directed to furnish security, failing which, to commit them to civil prison. He further stated that believing the representation only, O.A. No. 2563 of 1999 for attachment of the properties was closed. The first respondent by giving the undertaking has misled the Court and cheated the applicant also.
6. Per contra, learned counsel for the respondents contended that the undertaking has been given only in respect of door No. 7. The property was already mortgaged to Park Town Benefit Fund Limited is known to the applicant himself and the omission of mentioning the same in the affidavit cannot be considered as suppressing any fact. It is necessary to state that the mortgage in favour of the Benefit Fund Limited is a registered one and, as such, it will definitely find place in the encumbrance certificate. Because of this only, no mention was made in the undertaking affidavit. If the mortgage has been created by deposit of title deeds and in case the respondents failed to disclose the same at the earlier point of time, then it may amount to suppression of material fact. But in the present case, the property was already mortgaged to the Benefit Fund Limited under a registered mortgage and the applicant himself is well aware of the same. Now, the respondents have not sold the property, but the mortgagee alone brought the property bearing door No. 7 for sale and the sale proceeds have been adjusted for the claim of the mortgage and the balance was also paid to the income-tax dues. These respondents have not received any money from the mortgagee or from the auction purchasers.
7. It is, therefore, clear from the counter filed by the respondents that an undertaking has been given not to alienate the property; by the public auction was conducted only by the Park Town Benefit Fund Limited and for which, the respondents cannot be found at fault. Similarly, the non-mentioning of the registered mortgage will not amount to suppressing a material fact, because knowledge can be imputed considering the fact that it is a registered mortgage. However, learned counsel for the applicant stated that these respondents are not owning any other immovable property and the respondents may leave India at any moment in order to escape from the liability. Apart from the general allegations, no document has been furnished to show that the respondents are making attempts to leave the jurisdiction of High Court. Hence, I am of the view that the respondents have not flouted the undertaking given by them and, as such, warrant of arrest cannot be issued against the respondents. However, to prevent the respondents from leaving the country, they should be directed to surrender the passport in the Court.
8. For the reasons stated above, the application fails and is dismissed. However, the respondents are directed to surrender their passport, if any, into the Court within a period of two weeks and they should not leave the jurisdiction of this Court without the permission of this Court.
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