ASST. DIRECTOR HANDLOOM & TEXTILE Vs. PADMAVATHY

JUDGEMENT

(1.) This second appeal has been filed by the defendants against the Judgment and Decree dated 01.08.2000 passed in A.S. No.306 of 1999 by the learned II Additional District Judge, Erode reversing the Judgment and Decree dated 02.12.1999 passed in O.S.No.38 of 1999 by the learned First Additional District Munsif, Erode.

(2.) The case of the plaintiff, who is the respondent herein, as set out in the plaint is as follows: The suit property absolutely belongs to the plaintiff and she is in possession of the same. The husband of the plaintiff namely B.S. Ponnusamy was an agent of the second defendant under the name and style of "M/s. B.S.P. Tex, at Easwaran Koil Street, Erode. Since the second defendant insisted security of immovable property, the plaintiff executed a registered security bond in favour of the second defendant to the tune of Rs. 1 lakh only if payable by M/s. B.S.P. Tex, Erode. The plaintiff understands that M/s. B.S.P. Tex, Erode is in arrears to the principal, namely, the second defendant. To the utter shock of the plaintiff, she came to know that the first defendant had attached the suit property on 05.06.1995 under C.E.P. No. 69-95/96 and directed the third defendant to sell the suit property for realization of Rs. 5,79,400/- said to be due from M/s. B.S.P. Tex, Erode. But, the plaintiff was not served any notice nor was she heard before her property being attached and ordered to be sold. The said order, therefore, is per-se illegal and violative of the principles of natural justice. The Maximum liability with which the suit property is burdened only Rs. 1 lakh and not anything more. Immediately, on coming to know of the illegal attachment, the plaintiff approached the defendants and requested them not to proceed with the sale proceedings. The defendants were in no mood to listen to the plaintiff's request. They finally proclaimed on 13.01.1999 that they would go ahead with the sale unmindful of the valid objections of the plaintiff. Hence, the plaintiff has filed the above suit for declaration that the order of the attachment of sale dated 05.06.1995 by the first defendant is unlawful, illegal and unenforceable and for permanent injunction restraining the defendants from enforcing the aforesaid order. During the pendency of the suit, the suit property was sold in public auction on 05.10.1999. Hence, the prayer in the plaint has been amended by including the prayer to declare that the sale dated 05.10.1999 also unlawful and illegal and unenforceable.

(3.) In the written statement and in the additional written statement filed by the defendants, it is averred as follows: It is true that the husband of the plaintiff viz. B.S. Ponnusamy was an agent of the second defendant under the name and style of M/s. B.S.P.Tex. A sum of Rs. 6,69,427.45P/- to be paid by the said Ponnusamy to the Vengamedu Anna Weavers Co-operative Society. It is false to state that the plaintiff has offered security to the maximum of Rs. 1 lakh only. She has executed a security bond on 24.12.1986 and subsequently she has executed another security bond on 13.11.1989 to secure the loan availed by her husband. The said B.S. Ponnusamy has not paid the arrears of Rs. 6,69,427.45P. Hence, the third defendant has attached the suit property on 08.07.1986. The Civil Court has no jurisdiction to entertain the suit. The jurisdiction of the Civil Court is barred by the Cooperative Societies Act. Further, the suit is barred by the limitation. The suit property was sold on 05.10.1999 to one K.V. Senthilkumar for Rs. 2,10,000/-. The suit is bad for non-joinder of necessary party. Therefore, the defendants prayed to dismiss the above suit.