SENTHIL Vs. RAJAMANI

JUDGEMENT

(1.) Petitioner, who is a third party to the suit, has filed this Civil Revision Petition against the order, dtd. 28/8/2019, passed in I.A.No.103 of 2016 in O.S.No.9 of 2016 on the file of IV Additional District Court, Bhavani, Erode District, in and by which, the prayer of the petitioner for lifting the attachment of the petition schedule property before judgment made in I.A.No.12 of 2016 on 7/4/2016 was rejected.

(2.) The case of the petitioner before the trial Court was as follows : The property mentioned in the schedule to the petition originally belonged to the second respondent by virtue of a registered sale deed, dtd. 16/7/2010. The second respondent, with an intention to sell the said property to the petitioner for a consideration of Rs.24,50,000.00, entered into an agreement of sale, dtd. 12/8/2015, vide Document No.1984/2015 of Ammapettai Sub Registry on payment of advance amount of Rs.7,00,000.00 to the second respondent and the remaining amount of Rs.17,50,000.00 was also paid to the second respondent when the sale deed was executed by the second respondent in favour of the petitioner on 15/12/2015 and possession was handed over to the petitioner on the same day. After execution of the sale deed, the second respondent, with crooked and frustrated mind, in order to get an illegal and unlawful gain from the petitioner, was hand-in-glove with the first respondent and made the first respondent to file the suit viz., O.S.No.9 of 2016 for recovery of amount, by creating a suit pronote. The suit promissory note and the alleged loan transaction are bogus and not genuine. The respondents joined together and created the suit promissory note in order to make a false claim in respect of the petition schedule property, which was already sold to the petitioner, with an ulterior motive to put in more troubles, by abusing the process of law. The petitioner is a bona fide purchaser of the property for value without any encumbrance. Pursuant to execution of the sale deed, he mortgaged the property with State Bank of India, Ammapettai Branch, and availed loan of Rs.20,80,188.00 in the last week of December,2015, and the original sale deed was deposited with the bank. On 10/3/2016, the first respondent filed the suit for recovery of amount against the second respondent and along with the suit he also filed an application to attach the property mentioned in the schedule before judgment in I.A.No.12 of 2016 and sought attachment of the property, which was already sold by the second respondent in favour of the petitioner on 15/12/2015. The first respondent was well aware of the sale deed executed by the second respondent in favour of the petitioner in respect of the petition property. The first respondent, in order to cheat the petitioner, filed the application for attachment of the property, by suppressing the material facts. The Court also attached the property on 7/4/2016. At the time of filing the suit and the attachment application, the property did not belong to the second respondent. Hence, the petitioner prayed to pass an order, lifting the attachment made in I.A.No.12 of 2016 on 7/4/2016 in respect of the property mentioned in the schedule.

(3.) The case of the first respondent in the counter statement was as under : The second respondent borrowed a sum of Rs.7,50,000.00 from him on 14/4/2014 itself to construct a house in the petition property. The second respondent also borrowed loans from various persons and she was not able to repay the same, as she was in financial crisis. Therefore, she borrowed a sum of Rs.7,00,000.00 from the petitioner. The petitioner and the second respondent made the alleged sale agreement and the sale deed with an ulterior motive to cheat the lawful creditors. The second respondent has filed Debtor Insolvency Petition No.8/2015 on the file of Sub-Court, Bhavani, in which the petitioner was arrayed as 35th respondent. The petitioner and the second respondent, to defeat the right of the first respondent, purposely omitted to array the first respondent in the insolvency petition and after knowing the same, the first respondent filed an impleading petition in the insolvency petition and got impleaded therein. The debt borrowed by the second respondent from the first respondent was for construction of the house. Therefore, the petitioner is also liable to discharge the debt either by himself or jointly with the second respondent out of the property. Without discharging the debt, the petitioner is not entitled for raising of the attachment of the property.