M MALLIKARJUNA RAO Vs. B BHARATHI

JUDGEMENT

(1.) This Civil Revision Petition was filed against the order, dated 15-7-2002, passed by the I Additional District Judge, Nellore in I.A.No.1013 of 2002 in O.S.No.11 of 2002. The Petitioner is the Plaintiff and Respondents are the Defendants in O.S.No.11 of 2002 on the file of the I Additional District Judge, Nellore. The Petitioner filed the said O.S.No.11 of 2002 for recovery of a sum of Rs.70,18,837-00 ps. and costs of the suit together with subsequent interest at contract rate from out of the estate of late Butti Dasaradharami Reddy, the husband of the first Respondent-first Defendant and father of Respondents 2 and 3 (Defendants 2 and 3), or for such other reliefs as are just and necessary.

(2.) It is the case of the Petitioner-Plaintiff that the said late Dasaradharami Reddy borrowed from the Petitioner-Plaintiff a sum of Rs.29,00,000/- in the morning of 1-4-2001 and executed a promissory note therefor in favour of the Petitioner-Plaintiff agreeing to repay the same with compound interest at the rate of 24 per cent per annum; that the said late Dasaradharami Reddy borrowed from the Petitioner-Plaintiff another sum of Rs.10,00,000/- in the evening of 1-4-2001 and executed a promissory-note therefor in favour of the Petitioner-Plaintiff agreeing to repay the same with compound interest at the rate of 24 per cent per annum; that on 2-5-2001 the said late Dasaradharami Reddy approached the Petitioner-Plaintiff again for a further sum of Rs.16,00,000/- for obtaining bank guarantee towards the Earnest Money Deposit for his contract work and the Petitioner-Plaintiff agreed to lend the money and deposited the said sum of Rs.16,00,000/- in the Tamil Nadu Mercantile Bank, Nellore for obtaining the bank guarantee by the said late Dasaradharami Reddy; that the said Dasaradharami Reddy then executed a promissory-note therefor on 2-5-2001 in favour of the Petitioner-Plaintiff agreeing to repay the same with compound interest at the rate of 24 per cent per annum and that the total sum borrowed by the said late Dasaradharami Reddy from the Petitioner-Plaintiff is Rs.55 lakhs. It is the further case of the Petitioner-Plaintiff that the said late Dasaradharami Reddy issued the Petitioner-Plaintiff a post dated cheque bearing No.621629, dated 1-4-2002, for a sum of Rs.67,88,000/- drawn on the Tamil Nadu Mercantile bank Ltd., Nellore in favour of the Petitioner-Plaintiff assuring that the said late Dasaradharami Reddy is getting money out of the contracts, he executed, from the Government by the end of March, 2002; that meanwhile, as the said late Dasaradharami Reddy was seriously ill with blood cancer and was admitted in the Appollo Hospital, Hyderabad, the Petitioner-Plaintiff did not present the said cheque to the bank for realization; that the said late Dasaradharami Reddy died intestate on 19-4-2002 leaving behind him the Respondents-Defendants as his heirs; that the obsequies of the said late Dasaradharami Reddy took place in the village Kamireddypadu on 1-5-2002 and the Petitioner-Plaintiff also attended the obsequies and requested the second Respondent-second Defendant to pay the amount due under the promissory-notes; that the second Respondent-second Defendant promised to pay the amounts within a short time but failed to keep up his promise and that having waited till 22-5-2002, the Petitioner-Plaintiff presented the said cheque in the Lakhsmi Vilas Bank Limited, Nellore for collection and the said bank dishonoured the said cheque and returned it with the endorsement "Insufficient funds". It is also the case of the Petitioner-Plaintiff that the second Respondent-second Defendant with the cooperation of Respondents 1 and 3 (Defendants 1 and 3) is trying to draw the amounts due from the Government towards the execution of contract works by the said late Dasaradharami Reddy with intent to avoid the payment of the amount due to the Petitioner-Plaintiff and that, therefore, the Petitioner-Plaintiff filed the said I.A.No.1013 of 2002 under Order 38 Rule 5 C.P.C.

(3.) In the said I.A.No.1013 of 2002 it was stated by the Petitioner-Plaintiff that the Petitioner-Plaintiff came to know through P. Sudhakar and G. Janardhana Rao that the second Respondent-second Defendant with the cooperation of Respondents 1 and 3 (Defendants 1 and 3) is making hectic efforts to draw away the amount mentioned in the schedule with intent to defeat his claim for the suit amount and that if the Second Respondent-second Defendant is not restrained from doing so, the execution of decree that the Petitioner-Plaintiff may obtain in the suit will be defeated and the Petitioner-Plaintiff will not be in a position to realize any portion of the decretal amount and thereby he will be put to irreparable loss. It was further stated by the Petitioner-Plaintiff therein that the second Respondent-second Defendant with the concurrence of Respondents 1 and 3 (Defendants 1 and 3) already withdrew an amount of Rs.1,10,00,000/- relating to the works mentioned in the schedule annexed thereto and that the amount mentioned in the schedule is the amount due and payable by the officers mentioned therein to the said late Dasaradharami Reddy. In the circumstances, the Petitioner-Plaintiff prayed in the said I.A.No.1013 of 2002 that the Respondents-Defendants may be directed to furnish proper and adequate security for the suit amount and costs of the suit within the time to be granted by the Court and that the amount mentioned in the schedule may be attached before judgment in case the Respondents-Defendants fail to furnish security within the time granted.