MOHAMMAD RAFIUDDIN Vs. PRIDE INDIA AVENUES PVT LTD

JUDGEMENT

(1.) Aggrieved by the order dtd. 26/3/2021 passed in I.A.No.731 of 2020 in O.S.No.231 of 2020 on the file of the learned X Additional Chief Judge, City Civil Court, Hyderabad, the petitioner-plaintiff preferred this revision.

(2.) The case of the petitioner herein, in a nutshell, is that he filed an application under Order 38 Rule 5 CPC before the trial Court seeking attachment of petition schedule property before judgment. In fact, he filed O.S.No.231 of 2020 for recovery of an amount of Rs.5,08,79,426.00 along with interest at the rate of 24% per annum till the date of realization from M/s.Pride India Avenues Private Limited-first defendant, its Managing Director-Mr.Abdul Haleem Baig-second defendant and also against its Director-third defendant. During the pendency of the suit he also filed the present application for attachment of petition schedule properties of the third defendant before judgment. The petitioner would assert that he entered into an agreement with the first respondent herein on 20/12/2018 for purchase of Plot bearing Nos.C-10 and C-11 admeasuring 1043 square yards in a gated community viz., Golden Sands, Phase-II, Tolichowki, Shaikpet Village and Mandal, Hyderabad District, for a total sale consideration of Rs.6,98,81,000.00. He would further submit that he paid an amount of Rs.3,40,00,000.00 on 19/12/2018 and Rs.10,00,000.00 on 15/12/2018 for which the second respondent issued receipt on 15/12/2018 itself. Later he came to know that the first respondent company has no clear title and several people were complaining against it for selling plots and they are also questioning the conduct of second and third respondents. On verification, he came to know that the land in Sy.Nos.41, 174, 177 to 180, 181, 182 and 211 are under attachment by the Enforcement Directorate since they belong to Heera Gold Company and as such he demanded the respondents to return the amount paid by him and on such demand, the respondents issued four cheques in the name of one Hi End Infra Company claiming to be the sister company of the respondents and that when he presented those cheques, they were dishonoured. Thereafter, he gave complaint on 1/6/2020 in FIR No.63 of 2020. He would also assert that the third respondent is in active management of the first respondent company and she is hand in glove with her husband-second respondent and equally liable. The petitioner also gave complaint against the second respondent. Thereafter, the first and second respondents removed the third respondent as a Director of the Company to avoid coercive steps against her in person or against her property. It is also the case of the petitioner that when he entered into an agreement on 20/12/2018, the third respondent was also one of the Directors and hence she is liable for omissions and commissions as Director of the Company and also personally. He would also contend that the third respondent is trying to alienate the property to an extent of Ac.5/24/9 guntas situated at Moinabad Mandal to escape the liability. One Mr.Maqdoom, who is in real estate business, informed him that respondents are trying to alienate the property as first respondent is juristic person managed by the second and third respondents-wife and husband, he sought attachment of the above property of the third respondent before judgment.

(3.) In a counter filed by the third respondent, she admitted that she was the Director of the first respondent company and the second respondent was the Managing Director and they were doing remarkable business from the past ten to twelve years and that they never cheated the people in the name of residential and commercial plots. She would further state that the petitioner entered into an agreement with them for purchase of two plots in an extent of 1043 square yards and paid Rs.3,50,00,000.00 and agreed to pay the balance sale consideration in four months to obtain the registered sale deeds, but he failed to pay the balance consideration within the time stipulation and as such the first respondent is entitled to deduct 30% of the total sale consideration towards cancellation charges. She would also assert that in the present transaction there were no disputes between them during the agreement period and that there was no title dispute in respect of the plots in question. It is only due for the delay in payment of the balance sale consideration by the petitioner, the registration could not take place. She would also assert that her personal property cannot be attached as the lis is between the petitioner and the first respondent, which is a company incorporated under the provisions of the Indian Companies Act. As per the provisions of the Act, the Director of the company is not personally liable for the deeds done by the company. She is not a Director of the first respondent company on this day and the property sought for attachment is exclusively belongs to her and it is nothing to do with the first respondent and that the petitioner failed to comply with the conditions of Order 38 Rule 5 CPC and thus the application filed by the petitioner is not maintainable and is liable to be dismissed.