This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of P. Valliappan, advocate for the petitioners and of T.R. Rajaraman, advocate on behalf of the respondent the Court made the following order:
This is a petition for interim stay of a money decree passed by the learned Additional District Court (Fast Track Court No. 4), Coimbatore at Tiruppur in O.S. No. 620 of 2004 dated 30.7.2008.
2. The petitioners are the defendants in the Suit. The respondent filed O.S. No. 620 of 2004 seeking recovery of a sum of Rs. 7,19,583/- together with interest at 24% per annum on the amount of Rs. 6,25,000/-. The basis of the claim of the respondent is that the respondent took the factory premises together with the machineries of the petitioners herein on lease for a period of 11 months with effect from 15.10.2002 and paid an advance of Rs. 12 Lakhs. The respondent claimed that at the end of period of lease, namely 15.9.2003, they handed over possession of the property along with machineries to the petitioners and that the petitioners refunded only a sum of Rs. 4,50,000/- on 20.10.2003 and a sum of Rs. 1,25,000/- on 13.2.2004 leaving the balance of Rs. 6,25,000/-.
3. The petitioners resisted the suit on the ground that the possession of the properties and the machineries were not actually handed over on 15.9.2003 and that even subsequently the machineries were not found to be in a good condition, so as to entitle the respondent to refund of the entire advance.
4. The trial Court found that the refusal of the petitioners to refund the balance of advance was improper and that the petitioners had in fact taken possession on 15.9.2003. On that basis, the Court below decreed the suit and the petitioners have come up with the present first appeal.
5. At the out set, the lease agreement dated 11.9.2002 filed as Exhibit A-3, confirms the payment of advance of Rs. 12 Lakhs. The penultimate paragraph of the lease agreement allows that the advance amount was to be repaid at the time of vacating the property and handing over vacant possession. The respondent tenant claimed that the possession of the property was handed over on 15.9.2003. Though the petitioners disputed the same, the petitioners admit that they repaid part of the advance, namely a sum of Rs. 4,50,000/- on 20.10.2003 and another sum of Rs. 1,25,000/- on 13.2.2004. The question of prepayment of part of the advance by the petitioners in October 2003 and February 2004, would not have arisen, if the respondent had not handed over the possession at all. The petitioners admit the existence of the clause for refund of the advance on the date of vacating and handing over vacant possession. Therefore, their payment of part of the advance amount on 20.10.2003 and 13.2.2004 disproves the case of the petitioners that the possession was never handed over and it strengthens the case of the respondent that possession was handed over.
6. Moreover, the Court below drew an adverse inference against the petitioners, for their failure to issue a reply to the legal notice issued by the respondent-plaintiff under Exhibit A-4. Though Mr. P. Valliappan, learned counsel for the petitioners contended that there cannot be any adverse inference drawn for the failure of the petitioners to issue a reply, I am unable to accept the said contention. In this connection Mr. P. Valliappan, learned counsel for the petitioners relied upon decision of PANCHAPAKESA AYYAR, J. in Publics Prosecutor v. Parthasarathy Ayyangar (1955) MWN 485. But that was a case arising out of a criminal complaint for defamation under Section 500 of Indian Penal Code. There, the learned Judge held that the failure to issue a reply would not amount to admission of the guilt on the part of the accused. The said proposition has no application to a civil suit.
7. In the result, I do not find any justifiable reason to deviate from the normal practice while considering the application for stay of a money decree, pending appeal. Therefore, this Miscellaneous Petition is disposed of granting Interim Stay of the judgment and decree of the Court below subject to the condition that the petitioners deposit into the trial Court 50% of the decree amount to the credit of O.S.No. 620 of 2004 on the file of the Additional District Court (Past, Track Court No. 4), Coimbatore at Tiruppur wit
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hin a period of 6 weeks from the date of receipt of a copy of this order, Upon such deposit being made, the respondent is permitted to withdraw 50% of that amount without furnishing security and the remaining 50% after furnishing security. There shall be no stay in so far as costs are concerned. It is needless to point out that the observations made above are only confined to the disposal of the stay petition and the shall not prejudice the case of the petitioner in the final hearing of the appeal.