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Judgment
M. Chockalingam, J.—This appeal challenges an order of the learned Single Judge of this Court granting ad-interim injunction in favour of
the respondents 1 to 4/plaintiffs in a suit filed by them in C.S. No. 27 of 2008.
The Court heard the learned Senior Counsel for the appellant and also the learned Counsel for the respondents 1 to 4.
The appeal has arisen under the following circumstances:
(a) The plaintiffs 1 to 4 are the daughters and the defendants 1 and 2 are the sons of one Mr. R. Kaliappan who died intestate on 5.8.1991,
leaving behind the defendants 1 and 2 and also his wife Sarojini Devi. His wife also died leaving intestate on 20.9.1999. The property of Kaliappan
by operation of law was devolved upon the plaintiffs and the defendants 1 and 2 and their mother, and thus each of the plaintiffs is entitled to 1/7th
share in the properties of Kaliappan. The plaintiffs are also entitled to 1/7th share each in the immovable property namely house, ground and
premises in Plot No. 875, J-24, New No-J-1, 17th Main Road, Anna Nagar, Madras, more fully described in the Schedule. While so, the
Schedule property was furnished as security by the said Sarojini Devi and the defendants 1 and 2 to the appellant/third defendant bank in respect
of the loan obtained by M/s. Kalsar Marketing Agency P Limited and M/s. Kalsar Petro Products P Limited. Due to non payment of the dues, a
claim was made by the third defendant bank, and an ex-parte decree came to be passed. The entire property was brought for sale, and a notice of
attachment was issued by the Recovery Officer on 6.10.2004, intimating the attachment of the entire schedule property restraining the transfer till
the sums of Rs. 1,39,87,220.13 and Rs. 2,44,53,439.53 are paid.
(b) The respondents 1 to 3/plaintiffs 1 to 3 filed the third party application in I.A. No. 577 of 2004 in DRC No. 123 of 2004 and IA No. 579 of
2004 in DRC No. 124 of 2004 before the Recovery Officer, DRT II, to raise the said attachment order in respect of their 4/7th share in the
schedule property belonging to the plaintiffs. On dismissal of the above applications by the Recovery Officer, the plaintiffs preferred M.A. Nos. 5
and 6 of 2006 respectively. The Presiding Officer, DRT II, affirmed the order of the Recovery Officer holding that the plaintiffs were to establish
their right only before the Civil Court. As against the said orders, the plaintiffs 1 to 3 filed MA Nos. 208 and 209 of 2007 respectively, on the file
of the Debt Recovery Appellate Tribunal. In the meantime, the third defendant bank, the appellant herein, took steps to bring the entire property
for auction sale to recover the dues payable by the first and second defendants. Under such circumstances, the plaintiffs filed the instant suit
seeking division of their 4/7th share in the suit property. While doing so, they preferred the instant application to restrain the third defendant bank
to bring the plaintiffs'' 4/7th share in the suit property for auction sale for the dues payable by the defendants 1 and 2.
(c) The learned Single Judge after giving an opportunity to the defendants to put forth their objections and after hearing the learned Counsel on
either side, took the view that it is a fit case where injunction has got to be granted and accordingly granted interim injunction. Hence this appeal.
Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr. N.R. Chandran would submit that the respondents 1 to 4 had
no subsisting right, title or interest in the suit property during the pendency of the suit for partition against the appellant; that the respondents 5 and 6
and their mother Sarojini Devi had already produced a legal heirship certificate dated 11.3.2007, and availed loan stating that they were the only
legal heirs of late Kaliappan; that the said certificate had not been rejected by the Tribunal; that the statement of claim of respondents 1 to 4 was
not supported by any material evidence; that the defendants 1 and 2 had not affirmed the claim of the respondents 1 to 4/plaintiffs in any manner by
affidavit or otherwise; that the plaintiffs had not been staying in the suit property; that under the circumstances, they had lost their right to claim on
the ground of limitation since their father had passed away as early as 1991, and the claim before the Recovery Officer was lodged much later in
2007; that the legal heirship certificate was issued by the Tahsildar, Saidapet, while the earlier one produced by the defendants 1 and 2 and their
mother was issued by the Tahsildar, Egmore, Nungambakkam Taluk, within whose jurisdiction the suit property was situated; that there were two
legal heirship certificates; that in such a case, the Tribunal constituted under the Act has held that the respondents 1 to 4 have to produce the
succession certificate; that instead of directing the respondents in that manner, the learned Single Judge granted injunction against the sale of the
security; that it has barred the right of the appellant bank to effect recovery of the decreetal amount which is more than Rs. 4 crores as on date;
that the injunction granted by the learned Single Judge lacked merit; that the suit itself was a collusive one filed at the instance of the respondents 5
and 6; that the appellant was a public institution; that the appellant was greatly prejudiced in the recovery of the amount due and put to loss due to
the injunction granted; that it is pertinent to point out that the respondents 1 to 4 were married daughters of Kaliappan and having settled
elsewhere, the present suit has been filed by them without claiming any right from 1991; and that in such circumstances, the order of the learned
Single Judge has got to be set aside.
The Court heard the learned Counsel for the respondents 1 to 4.
It was a suit where the plaintiffs have sought for 4/7th share in an immovable property which admittedly belonged to one Kaliappan who died
intestate on 5.8.1991. As could be seen from the available materials, the entire property was brought for sale pursuant to an ex-parte decree
made, and an attachment was also made on 6.10.2004 by the Recovery Officer for the recovery of the loan advanced by the appellant/third
defendant bank to M/s. Kalsar Marketing Agency P Limited and M/s. Kalsar Petro Products P Limited for which the defendants 1 and 2 and their
mother Sarojini Devi have furnished the immovable property in question as security. The said attachment order was sought to be set aside by the
plaintiffs 1 to 3 by filing applications before the Recovery Officer who dismissed the same. They were appealed against in MA Nos. 5 and 6 of
2006 before the DRT, and those appeals were also dismissed. Thereafter the plaintiffs have filed MA Nos. 208 and 209 of 2007 before the Debt
Recovery Appellate Tribunal, wherein the DRAT made an order of dismissal of the appeals pointing out that the DRT constituted for the specific
purpose of adjudicating upon the dispute between the bank and financial institutions on one hand and the borrowers and guarantors on the other,
cannot decide any civil dispute with reference to the claim of a share in the mortgaged properties, and hence the appellants will have to work out
their rights before a competent forum in accordance with law, and thus there was no illegality or irregularity found in the impugned orders so as to
reverse the same and has dismissed the appeals. In such circumstances, the instant suit C.S.27 of 2007 was filed by the respondents 1 to 4 seeking
the relief of partition claiming 4/7th share in the property. They have also filed the legal heirship certificate.
It is also not in controversy that they are also the daughters of Kaliappan who was the owner of the property, and he also died intestate. It is not
the case of the appellant/third defendant bank that the money was advanced to the plaintiffs, nor they stood as guarantors or furnished the property
in question as security for the loan availed by the said companies. In the proceedings initiated by the appellant/third defendant as stated above, the
plaintiffs admittedly were not shown as parties; but, the entire property was furnished as security by the defendants 1 and 2, the sons, and also
Mrs. Sarojini Devi, the wife of the said Kaliappan, while the plaintiffs 1 to 4 by operation of law were entitled to 4/7th share. Since the entire
property was attached and brought for sale, there arose a necessity for the plaintiffs to file the suit seeking for division of the property and the
instant application seeking interim injunction to restrain the third defendant/appellant bank from bringing their 4/7th share in the Schedule property
for sale. Now the contention put forth by the appellant''s side that the plaintiffs did not have subsisting interest in the property cannot be
countenanced. Apart from that, the other contention that at the time of furnishing the security, the defendants 1 and 2 and also Sarojini Devi
furnished a legal heirship certificate wherein they were shown as the only legal heirs of Kaliappan cannot be a reason to deny the relief of interim
injunction while the plaintiffs were able to show that they were the daughters of Kaliappan who died intestate, and they were also entitled to the
respective shares by operation of law.
Apart from the above, the contentions put forth by the learned Senior Counsel for the appellant that the property could be sold in auction, and
the bank is also prepared to deposit 4/7th share of the sale proceeds cannot be accepted even for a moment while the plaintiffs 1 to 4 have made
out a prima facie case that they are entitled to 4/7th share in the property and they had nothing to do with the transaction in question. Therefore, the
appellant/third defendant has got to be necessarily restrained from bringing their 4/7th share in the Schedule property for sale. The learned Single
Judge was perfectly correct in granting interim injunction as asked for.
In the result, this original side appeal is dismissed as devoid of merits. The parties shall bear their own costs. Consequently, connected MP is
also dismissed.