P. CHANDRAN Vs. A. MAHENDRAPANDI

JUDGEMENT

(1.) The revision petitioner/plaintiff has laid the suit in O.S. No.693 of 2016 against the respondents herein for recovery of money on the basis of the promissory notes. It is found that the revision petitioner has also given presuit notice claiming the suit amount from the respondents and further, it is found that despite the receipt of the said pre-suit notice sent by the revision petitioner, the respondents have not responded to the same. It is further seen that the respondents have set up a defence in the suit laid by the revision petitioner contending that only the first respondent had borrowed a sum of Rs. 50,000.00 from the revision petitioner and executed the promissory note and according to them, at that point of time, the revision petitioner had obtained various signatures in the blank promissory notes from them and therefore, according to them, with the use of the said documents, the revision petitioner has laid the suit against them and therefore, it is stated that the suit levied by the revision petitioner is liable to be dismissed. It is, thus, found that indirectly the respondents have admitted that the signatures found in the suit promissory notes belonged to them and according to them, the revision petitioner had made use of the blank promissory notes with their signatures for filing the present suit against them. It is further found from the pleas set out by the respondents in the written statement that according to them, they had discharged the amount borrowed from the revision petitioner. If that be so, it could be seen that in the normal course of events, the respondents would have endeavoured to get back the signed blank promissory notes handed over by them to the revision petitioner at the time of the borrowal of the amount. However, according to the respondents, the revision petitioner had been delaying the return of the said signed blank promissory notes to them.

(2.) Be that as it may, based upon the suit promissory notes, now the revision petitioner has filed I.A.No.526 of 2016, under Order 38 Rule 5 and Sec. 151 C.P.C., for attaching before Judgment the petition schedule property belonging to the respondents in the event of their failing to furnish security within the time stipulated by the Court. It is clearly averred by the revision petitioner in the said application that the respondents have already mortgaged the petition schedule property with the Bank and therefore, if the respondents are allowed to further encumber or alienate the property, the revision petitioner would be put to irreparable loss and hardship and therefore, according to the revision petitioner, the respondents should be called upon to furnish security for the suit claim and in the event of failure to furnish the same, the petition schedule property should be attached before Judgment. The respondents have resisted the said application contending that the allegations made by the revision petitioner that they are trying to further encumber or alienate the petition schedule property is incorrect and the same has already been mortgaged with the Bank and further, reiterating the case as put forth in the written statement, they sought for dismissal of the application.

(3.) The Court below, on a consideration of the materials placed, without correctly going into the merits of the claim of the revision petitioner, dismissed the application preferred by him on the footing that inasmuch as the suit is ripe for trial, the relief sought for by the revision petitioner cannot be entertained and accordingly, dismissed the application. Aggrieved over the same, the present civil revision petition has been preferred.