T SENNAKESAVAN Vs. VENKATAKRISHNA REDDY

JUDGEMENT

(1.) This appeal is filed by the appellant aggrieved by the order dated 14.06.2011 passed by the learned single Judge dismissing the Original Application No. 124 of 2011 in C.S. No. 100 of 2011 filed by him to restrain the second respondent/garnishee from disbursing or releasing any amount payable to the first respondent.

(2.) According to the plaintiff/appellant, the suit was filed against the first respondent herein for recovery of Rs.1,10,09,558/- together with future interest at the rate of 24% per annum from the date of plaint till realisation. According to the plaintiff/appellant, he was a sub-contractor of the first respondent and he had completed 90% of the work entrusted to him by the first respondent. The contract was originally awarded in favour of the first respondent by the second respondent/Railways and that work was sub-contracted to the plaintiff/appellant by the first respondent. The plaintiff/appellant alleged that the contract work was entrusted by the first respondent orally and he had also completed the work entrusted to him by investing huge amount. After completing the work, the plaintiff/ appellant raised bills and the bills raised by the plaintiff/appellant to the first respondent would be paid by the second respondent/railways. However, instead of collecting the money from the second respondent railways and paying it to the plaintiff/appellant, the first respondent failed to pay the amount. The plaintiff/appellant however admits that the bills relating to R.A. Bill Nos. 1 to 11 has been paid and what was due was in respect of the bills relating to R.A. Bill Nos. 11-A, 12, 13 and 14, which were claimed by him in the suit. Pending suit, the plaintiff/ appellant filed two applications, one for attachment of the immovable property belonged to the first respondent situate at Hyderabad and other application praying for an interim injunction restraining the second respondent/Garnishee from releasing or disbursing any amount payable to the first respondent. According to the plaintiff/ appellant, if the amount is released by the second respondent/garnishee to the first respondent, even if he succeeds in the suit, he could not recover the amount from the first respondent or he could not execute the decree. Inasmuch as the plaintiff/appellant had completed the work entrusted to him by the first respondent by spending huge money and the first respondent failed to pay the amount payable to him, he is entitled to recover the amount from the first respondent and therefore, he had filed the suit and the aforesaid two applications. As far as the application praying for attachment of the immovable property is concerned, the learned single Judge only recorded the undertaking given by the first respondent that he will not alienate or encumber the property situate at Hyderabad and based on such undertaking, the application for attachment was closed. As against the said order, no appeal was filed by both sides. However, as against the dismissal of the application praying to restrain the second respondent/garnishee from releasing or disbursing the amount, the present appeal is filed before us.

(3.) The first respondent would contend that the alleged sub-contract itself is false and incorrect. According to the first respondent, the plaintiff/appellant was only an employee under him and he was permitted to do the work on monthly payment of Rs.25,000/- per month, besides commission of 2% on the total project cost. The first respondent would mainly contend that the entire amount payable to the plaintiff/appellant was paid to him as advance and he had also executed a power of attorney and based on such power of attorney, the amount was advanced to him by the first respondent. Under those circumstance, the plaintiff/appellant can never be called as a Sub-Contractor and the plaintiff/appellant was only an agent of the first respondent. Therefore, the suit claim made by the plaintiff/appellant is illegal. Even as per the documents produced by the plaintiff/appellant namely Form 16-A issued by the first respondent, the enclosure to Form 16-A indicates that the plaintiff/appellant was paid a sum of Rs.3,13,00,000/- which represents more than 90% of the contract work done by the plaintiff/ appellant. From and out of this amount paid to the plaintiff/appellant, he has done the work as power agent of the first respondent. In any view of the matter, as far as the relief sought for by the plaintiff/ appellant for attachment of the immovable property, the first respondent had given an undertaking before the learned single Judge that he will not alienate or encumber the property situate at Hyderabad, which is worth about Rs.1,65,00,000/-, even though the said property was subjected to mortgage and only a sum of Rs.36 lakhs is due and payable to the mortgagee/Bank, therefore this property is sufficient to satisfy the suit claim. The first respondent also contends that the property was offered as a security without prejudice to his right and contentions to be raised in the suit. Under those circumstances, the learned single Judge is justified in dismissing the application to restrain the second respondent/ garnishee from disbursing any amount, much less Rs.1,10,00,000/- payable to the first respondent. If such an order is granted in favour of the plaintiff/ appellant, it will prejudice the first respondent from carrying on his business. The plaintiff/appellant has not adduced any valid reason to withhold such a huge sum especially when the plaintiff/appellant had pleaded that the contract between the parties was an oral contract. Further, even at the time of filing the suit, in the absence of any material to show that the first respondent might evade to make the payment to the plaintiff/appellant in the event of the suit being decreed, especially when the first respondent had given an undertaking not to alienate or encumber the property owned by him at Hyderabad as due security of the amount, if at all it is due and payable by the first respondent, the application filed by the plaintiff/appellant against the order of dismissal of the application to restrain the second respondent/garnishee from disbursing huge amount payable to the first respondent by the second respondent is not sustainable.