UCO BANK MADRAS Vs. SUKRA SHOE FABRIC

JUDGEMENT

(1.) This is an application filed by the applicant / plaintiff under O.14, R. 8 of the Original Side Rules read with O. 38, R. 5 of the Code of Civil Procedure, seeking the relief of attachment before judgment of the immovable properties more fully described in the judge's summons till the disposal of the suit.

(2.) The facts in brief as culled out form the affidavit filed in support of the application are as follows : On granting the various agreed facilities to the first respondent herein in running a shoe fabric company, the first respondent was highly irregular and the terms and conditions of the credit facilities extended to him, were not adhered and because of the huge outstanding, the present suit was filed for the recovery of a sum of Rs. 66,06,376. 85 and that since the plant 'A' schedule immovable properties have been charged in favour of the applicant by way of creating an equitable mortgage and that the plaint 'B' schedule movables have been hypothecated, the applicant is entitled to proceed with the same in accordance with the same after getting the decree in the suit and collected the same with interest at the contractual rate and cost as agreed upon. While that being so, it was further averred in paras 5 and 6 of the affidavit that since the security offered by the defendants by way of equitable mortgage and hypothecation were found inadequate for raising of the credit facilities as demanded by the defendants 2 and 3 as partners of the first defendant / first respondent offered to give the properties more fully described in the Judge's summons as additional security in favour of the applicant not only for the present suit claimed, but also for the amount the from another sister concern, viz.,1 M / s. R.S. Creations of which the second and 3rd respondents are the only partners and that since the first respondent acquired the said properties under a Deed of Partition dated 2-9-1988 which has been the subject matter of the enquiry before the Sub-Registrar of Assurances, Dindigul, they had deposited a photostat copy of the said deed on 1-6-1989 with the applicant and thereby created an equitable mortgage over the said properties for the suit claim as well as the security for M / s. R. S. Creations with the promise that they would deposit the original Partition Deed after the enquiry was over. But since payment of heavy stamp duty was involved, the document was not given and it was stated by the applicant that in the absence of the original document, no equitable mortgage would be created in favour of the applicant with the photostat copy and hence the respondents were advised to give the original document as security and the Sub-Registrar was also requested to send the original document to the plaintiff as soon as it is registered. As the document has not been registered, and since the respondents are in possession of the properties covered under the said document dated 2-9-1988 and there is no equitable mortgage, the present application is filed to seek the order of attachment of the said properties since the respondents are making hurried attempts to alienate and encumber the same at the behest of the respondents herein as was expressed by the second respondent over phone, and that in such event, if no interim order is passed, the applicant will be put to very serious prejudice and loss. Upon the above pleadings, the applicant wants the order of attachment of the property more fully described in the judge's summons, as prayed for.

(3.) This application was resisted by filing a counter-affidavit filed on behalf of the respondents- 1 to 3 in which, it is contended inter alia that the properties sought to be attached in the application is not at all belonged to the 4th defendant or 5th defendant, nor to any of these respondents and that it belongs to a firm, R. S. and Sons, a finished leather tannery which is not a party to the suit and that as such, it cannot be attached before the judgment and that on this ground alone, the application is to be rejected.