Dismissed

G.Srihari v. C.Sunil Kumar and Another

Telangana HC1 Apr 2021CMA/95/2021

Case brief

AI extract

What is this about?

This is a civil miscellaneous appeal against an interim order granting security and directing attachment of property. The High Court dismissed the appeal, holding no infirmity existed in the lower court's direction to protect alleged illicit funds from dissipation.

What the court decided

AI extract

G.Srihari Vs C.Sunil Kumar and Another — Contract and Commercial Disputes | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶2

THURSDAY, THE FIRST DAY OF APRIL

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TWO THOUSAND AND TWENTY ONE

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PRESENT

¶5

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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AND

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THE HONOURABLE SRIJUSTICE T.VINOD KUMAR

¶8

G.M.A. NO: 95 OF 2021

¶9

Appeal under Order 43 Rule 1 of CPC against the JudgmenV decree in lA No.808 of 2020 in OS No.220 ol 2020 on the file of the Court of the lll Additional Chief Judge, City Civil Cou(, at Hyderabad.

¶10

Betwee n:

¶11

G.Srihari, S/o, Late G.Adaiah, Aged about 86 years, Occ. Nil, Rio. Flat No. C-1, C Block, Siddartha Enclave, Road No.12, Banjara Hills, Hyderabad.

¶12

...APPELLANT/ DEFENDANT NO,1

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AND

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'1 . C.Sunil Kumar, S/o. Late C.Kanakaiah, Aged about 45 years, Occ. Business, R/o. H. No. 1 2-2 -827 124, Karthi Nagar Colony, Mehdipatnam, Hyderabad. . . ... Respondent/ Plaintiff

¶15

O.Kalyan, S/o.Not Known, Aged about 55 years, Occ. Business, R/o. 304 and 305, LumbiniJewer Marr, Road No. ,, t,"i::AEl,;d,r8Eliii8arENDANr

¶16

No.2

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For the Appellant : SRI NYAYAPATHI PRASHANTH, Advocate

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For the Respondents : SRI K.S.PHANI BHASKAR, Advocate

¶19

The Court made the following: ORDER

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HONO URAI}L E SRI .IUSTICE M.S.RAMACHANDR,\ RAO

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AND

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HONOI]RABLE SRI JUSTICE T.VINOD KUMAR CIVIL NIISCELLANEOUS APPEAL No.95 OF 2021

¶23

J U DG MENT I tl't,r Si i Jt$tiLa Itl.S. Ramachclndru Roo)

¶24

Ihis appeal is fllecl against the order dated 04.01.2011 in t.A No.8()ll Ol :01() in O.S. No.220 oil020 passccl b), thc lll r\dditional Chitl'.1Lrdcc. City Cir il Coult. Hrderabad.

¶25

2,^'l he appcllant is the 1" def-endant in the suit.

¶26

'l'he stund ol thc l'( rcsnondcnt/rrla intilT in thc suit

¶27

The l" respondent herein filed a suit against the appellant and the 2nd respondent - 2nd defendant for recovery ofa sum ofRs.57,80,736lwith future interest at l2o/o per annum on Rs.44,00,000/- from the date of suit, till realization.

¶28

ln the suit, the l'' respondenr/plaintiff conrended that the appellant ancl the 2nd respondent approached the I'r responclent,s I'ather. convincecl him that they can get allorted a 3 Bed Roorn Flat in HIC or Duplex in Chitrapuri Colony. i1' the l't resl)ondent's f'ather paid I{s.69.00.000r-l they rhcr.r collecrecl a sur.n of Ils.:}.1.00.000/- tiorn tltc I^' r'esptrn t1!.n:'s lather through Dentand Dralis or-r 10.09.2016; arrtl that appellant trnd 2"'r respondent promised to get allounent letter fr.ont the^'Ielugu Cine Workers' Cooperative Housing Society Limited, which runs the Chitrapuri Colony, within six weeks of making the

¶29

¶30

'l/JR,,/^{rr/r ",' {'U.l .\0.9i o/lrll

¶31

paylnents alld^{also registratiollof flat within 2 weeks after isstlance ol'} allotrnent^letter.

¶32

The i"^{respondent contended that his father died due to ill health} subsequently^{on 24.02.2017 and the appellant and the2nd respondent} evaded to^{give allotment letter issued by the said Society'}

¶33

The l"^{respondent contendedthat the appellant told the 1't} respondent in^{April2011thathehad received chequesfrom the 2"'t} respondent^{amounting to Rs 44,00,000/-and promisedto repaythe} alrount to the^{l't respondent on encashingthe satne; that the l't} respor.rdent^{rvas tolcl by the appellant that the chequesissueclby' the 2"'r} respondent^{were dishonoured subsequetltlyand casesr'vere filed; that} the l't respondent^{tl.ren insisted tl.re appellant to pay the arllount and} collect it from^{the 2nd respondent and he agleedfor the same;that tlre} appellant^{issued two chequesfor an amount of Rs'27'50'000/-towards} part settlement of^{dues, but the said chequeswere also dishonouredon} O2.O3.2llg.^{He also stated that the chequeswere again presentedtwo} weeks later at^{the instanceof the appellant and they wereagain} dishonoured^{on1 9.03'2019'}

¶34

1, He contended^{that he filed CC No'305of 2019 belore the XII} Special Magistrate,^{E,n'arnanzil' Hyderabad'invoking Section li8 of'} the Negotiable^{InstrurnentsAct, againstthe appellantand the2'"1} respondent,^{and since the appellant was a co-sharer of a residential} property being^{Plot No'C-1,admeasuling 2169 sq'ft'' situatedat} Municipal^{No.8-2-676ll/B/A,B,C,SidharthaEnclave' Road No'12'} Banjara Hills,^{Hyderabd, and since he has a half sharealong with his}

¶35

l--

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¶37

,IISR,J & TYA,J Cll.4 No.95 ol202t

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wife and he is trying to alienate the same to third parties, he filed the

¶39

su rt

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LA \o.tl08 of 202 !

¶41

IJ Alor.rs riith the sr"rit. the l't respondent filed I.A No.gOU of'2010 under Order 38 Rule 5 CPC, against the appellanr ancl the 2,,.r responclen! to clirect the appellant to furnish security to the extent of the suit clairn ol Rs.57.80,736l- and on such failure, attach the sr.rit propcrl\ ul tltc appcllant belbre j udgntent.

¶42

He leitcrated the contents of the plaint in the said application and contended that ii the attachment is not made, there is possibility that the appellant may alienate the suit schedule property depriving of the ltrrespondent ofmeans to recover the suit amount.

¶43

The stand of th c arrpelhnt in IA 808 of2020

¶44

Counter afftdavit was filed by the appellant in the said application. denying the averments contained in the plaint and in LA. No.80ti of'2020.

¶45

I l. r\ccolcling to hirn, the cause ol action according to the pli.lint arose lbr the I'' respondent only rvith the 2,,d respondent lncl tht'l'elugu Cine Workers Cooperative Hosing Society Limited and since the said Sociery was not in.rpleaded as party in the suit, the suit is barred for non-joir.rder of all the parties.

¶46

:t{-- The appellant denied the allegations that the appellant along with the 2nd respondent represented that they were having close

¶47

,vsR,.t & 7 t.t(,J Ctll..l .\0.q5 ol )0)l

¶48

corlnection with the said Housing Society, and that they lur.ed and enticed the l'' respondent's father and convinced hinr to buy a 3 bed room flat in Chitrapuri Colony, Manikonda Jagir, Ranga Reddy District.

¶49

According to the appellant, the lst respondent's father knew one Srinivas Raju, who was a technician, living in Chitrapuri Colony and the said Srinivas Raju introduced the appellant to the l't respondent's father since, the appeilant also owned a plot in the said colony. It is contended that the father of the 1't respondent requested the appellant to use his good offices and put a word to the 2"'i respondent lor 6lLrrchasing the flat.

¶50

The appellant denied that he tried to convince the I', respondent's lather or rvas instrumental in the deal between the I'r respondent's father and tl-re 2nd respondent. He corrtended that he was only a witness to the said transaction and had no further role and the demand drafts paid by the l't respondent's father were given to the 2"d respondent in the presence of the appellant.

¶51

According to him, the demand drafts were issued by the 1'l respondent's father in the name of the Telugu Cine Workers Cooperative Housing Society Limited and the appellant was unnecessarily dragged into current litigation for no fault of his

¶52

He contended that he is no way concerned with the issuance of the allotrnent letter since he is not the mernber ol the Exccutive Bodr

¶53

( [:

¶54

¶55

MSR,J & TVK,J C.VA No.95 oJ 2021

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ol the Societ'y and the whole transaction was between the l'l respondent's 1'ather and the 2nd respondent

¶57

Accorclirrs to lhe appellant, he had requested the 2"'] respondent to par back thc alnounts to the l!trespondent, but the 2"d respondent infbrmed thc appellant that he rvill not pay an), arr.tount to rhe l'r respondent; that the 2"d respondent then issued trvo cheques. but the cheques were dishonoured. According to the appellant, he was only a mediator and had only intended to help the l'' respondent.

¶58

18, He admitted that at the request ofthe l't respondent, he gave a cheque for Rs.20,50,000/- on 19.10.2017 without mentioning any date on the same. He also admitted that the cheques issued by him for Rs.7.00.000/- on 19.02.2019, and for Rs.20,50,000/- on the same day u,ere also dishonoured. He also claimed that because of his old ase ol 86 1'eals, he w'as pressurized by the I't respondent to issue cheque-s, u h ich got clishonor.rred.

¶59

I hc orrlcr (lt.{.1.::021 in I.-. \o.80tl o1 2020 of thc (]ourt bclorr

¶60

Llr orrle r dated 04.01.202 l. the Courr bekrw rrllorvccl I... No.808 of l0lC and directed the appellant to turnish security within ten days tl'our the date of receipt of the order and in def'ault directed that the attachment would follow against half share of the appellant in the petition schedule property.

¶61

After considering the contentions ofboth sides, the Court below held that there is no dispute that the amount was paid to the Society by -^{tllg l" r'esponclent'slatherin respect of purchase of the tlat, and that}

¶62

MSRJ & TI/K,J C.vA .'o.9s of 2a2t

¶63

some payrnents were lnade to the appellant and the 2,,,1 respondcrrt. rvho reprcsented that they have close cou,cction with the Society anci the Board Members of the Society. It observed that the real disputc is payment of cash of Rs.44,00,000/- to the appellant and the 2,,d respondent on 10.09.2016 in connection with purchase offlat.

¶64

It observed that whether the 1,t respondent,s role was only that of a mediator unconnected with the purchase of the flat transaction and issuance of allotment letter or whether both the appellant and the 2nd respondent conspired to take away money from the lr, respondent's father and finally failed to pay the amount received by them, are issues of facts which will be decided in the suit.

¶65

It observed that the approach of the appellant and rhe 2,,,1 respondent and the transaction entered by the l't respondent's father is not disputed and so also, the amount paid to the Society; the appella.t adrnitted in counter rhat hc rvas a nrediator; the issuance of cheques [r1. the appellant to the 1'r respondent in connection with the alleged transaction of purchase of flat/allotrnent is also not denied; and whether the appellant had issued cheques to the r'r respondent in his individual capacity, or in connection with the alleged flat allotment transaction has to be decided in the suit.

¶66

It held that since the I't respondent contended that the appellant was trying to alienate the petition schedule property in favour of the 3'd respondent to avoid paytnent to tire lrtrespondent in case a decree is passed tbr recovcrl, ol suit antount, and since thc appel)ant is a co_ sharer ol the petition schedule propelty, even if the appellant w,as

¶67

¶68

¶69

MSR,J & !'YI(,J Ctlt No 95 t{ 2021

¶70

uncorlnected \vith ',he tl'ansaction since he has^{issued cheqtlesto the l'r} respondent. $ hich got dishonoured, it is necessary^{that tl-rc-petition} schedule property be protected without any alienation till^{the disputes} betrveen the parties are resolved in the^strit.

¶71

lt obselved that it is^proper 10^{giveone opportllllitvto the} appellant to turnish securitl in respect of^{the attachment ol the hall} share in the petition schedule^property and^{granted ten daystime to} him to furnish such security and in^{default, it directed attachment.}

¶72

Thc Drescn t Anneal

¶73

Challenging the same, this appeal is filed.

¶74

Counsel lbr the appellant contended^{that his client was onlya} nrc'cliatol arrcl had nothing to do^with the^{transactionfbr purchaseof} apartnrent betueelr the 1'L respondent's thther ancl the^{2"'l respondetrt.} [{e contendecl that rvithout assigning proper reasons,^the Court^belou' passed the irnpugned order and the order deserved to be set aside.

¶75

Consideration bv the Court

¶76

27, Admittedly, in the plaint, the 1'' respondent had stated that^a sum of Rs.44,00,000/- in cash was paid by the l"respondent's^father to the appeliant and the 2nd respondent on 10.09.2016^{in connection} with allotment of a three bed room flat in Chitrapuri Colony managed by the Telugr.r Cine: Workers Cooperative Housing Society Limited.

¶77

It is the contention ofthe l'' respondent that the appellant along rvith thr-'2"d respondent represented that the)'have close cotrllection

¶78

-i3.,,

¶79

MSRIJ & TlK,J CMA No.95 oI2A2t

¶80

t J

¶81

with the Film Society and Board Members of the said Society and they had lured and enticed the I't respondent,s father into buying the said flat.

¶82

Everr the appellant admits that he,,vas a ntediator to the said trarsaction bet*ecn the I'r respondent's firther and trre 2"'l r.esponclent. The appellant also admitted that he had issued two cheques on 19.02.2019 for Rs.7,00,000/- and Rs.20,50,000/- to rhe I'r respondenr which were dishonoured. According to the 1,r respondent these payments were made towards part settlement of refund of the amounts paid by the I't respondent's father to the appellant and the 2nd respondent.

¶83

As rightly observed by the Courl below, the question whether the appellant \/as a nrediator uncolrnected ri,ith the flat t.an sact ionr'allotrrent orclc. ,r' *'hethc. thc appellrrrt rr.d th.. l |espondent conspi'ed to tal(c a\'ay r.nor.rcv llorn thc 1'' r..sponde nt's ththcr in 1016, and failed ro pa' rhe a,tolutt receirc.d br thenr. arc nlatter'5 to hc clccided in rhc sLrit.

¶84

Since issuance ofcheques by the appellant to the l,r respondent in connection with the transaction of purchase of apartment is not denied, and whether the appellant issued cheques to the I't respondent in his individual capacity or in connection with the transaction for purchase of apartment, are to be decided in the suit.

¶85

32, Therefore, in our opinion, the Court below did not commit any error in coming to the conclusion that if the appellant were to alienate

0' <,/

l/.tii,-1.{ ?ri,J ( tl.t .\0 )S ol:0:l

¶90

th,-'petition schc'du,e propertv in thvotrr of the third^part). therl^{the I'r}

¶91

responrlent wor-rld be deprived ol- an asset against vihich hc^carl

¶92

proceed to recover',he amount in the event the suit is decreed.

¶93

We, theretbre, did not find any infirmity in^{the orderpassed}

¶94

Court below warranting interference by this Court^{in the appeal.}

¶95

Accordingly. the appeal fails and is dismissed.

¶96

Sd/.K.SREENIVASA^RAO JOINT REGISTRAR

¶97

//TRUE COPY//

¶98

SECTION OFFICER

¶99

To 1. The lll Additional^{rlhiefJudge, City Civil C-ourt'Hyderabad} 2. One CC to^{Sri N.Prashanth, Advocate (OPUU)} - - 3. 6;; ca io^{5ri k s pn"niBhaskar, Advocate(oPUC)} 4. Two CD CoPies Kj.

HIGH COURT

DATED:01/04/2021

1 $E ST4r €
Y
{a
JL) 0 I JUN 2021
5 )r
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-<br>

¶105

JUDGMENT

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CMA.No.95 of 2021

¶107

DISMISSING THE CI\IA,

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(
!
I

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i 'l

G.Srihari v. C.Sunil Kumar and Another

Case brief

What is this about?

What the court decided

G.Srihari v. C.Sunil Kumar and Another

Case brief

What is this about?

What the court decided

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