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M/s. Potential Investments Inc., Represented by its Partner P. Gopinath, Chennai & Others v/s M.R. Mohan Ratha & Another

    C.R.P. No. 449 of 2021 & C.M.P. No. 3919 of 2021

    Decided On, 26 April 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE V. BHAVANI SUBBAROYAN

    For the Petitioners: S.S. Swaminathan, Advocate. For the Respondents: -------



Judgment Text

(Prayer: Civil Revision Petition filed under Section 115 of Civil Procedure Code, to revise and set side the docket order dated 04.01.2021 passed in I.A.No.---- of 2020, in O.S.SR.No.10993 of 2020, by the learned VIII Assistant Judge, Full Additional Charge I Assistant City Civil Court, Chennai.)

1. This revision petition has been filed against the docket order dated 04.01.2021 passed in I.A.No.-- of 2020 in O.S.SR.No.10990 of 2020 by the learned VIII Assistant Judge, (FAC) of I Assistant City Civil Court, Chennai, in and by which, the Court below rejected the interlocutory application filed under Order II Rule 2(3) CPC as not maintainable.

2. The petitioners herein are the plaintiff and the respondents herein are the defendants. The first respondent/defendant borrowed a sum of Rs.50,00,000/- and executed a simple mortgage deed on 15.10.2010 in favour of the plaintiffs in respect of the flat situated in T-Nagar, Chennai. Accordingly to the petitioners/plaintiffs, after borrowing the amount, the first respondent/defendant failed to repay the amount as well as interest thereon. While the petitioners/plaintiffs issued legal notice and initiated action for recovery of the mortgage money, the first respondent/ defendant executed a settlement deed in favour of his daughter/second defendant herein and also had taken steps to alienate the property. In such circumstances, the petitioner/plaintiff filed a suit praying for permanent injunction restraining the defendants from alienating or encumbering the suit schedule property. During the pendency of the suit, the petitioners also moved an interlocutory application under Order II Rule 2(3) CPC, seeking to grant leave to the petitioners/plaintiffs to sue for reliefs of judicial sale and personal decree at a later point of time.

3. The Court below rejected the above said interlocutory application, at the numbering stage itself, on the ground that the principal amount of Rs.50,00,000/- with 24% interest, will be more than 10,00,000/- and hence, the petition is not maintainable as the Court lacks pecuniary jurisdiction.

4. On a perusal of the entire pleadings, it appears that the petitioners/plaintiffs have filed the suit not for recovering any amount from the defendants, but only for permanent injunction restraining from alienating or encumbering the suit schedule property, which was mortgaged by the first defendant in favour of the plaintiffs having borrowed a sum of Rs.50,00,000/-. Therefore, the question of pecuniary jurisdiction will not arise in this matter. The petitioners/plaintiffs have filed the interlocutory application under Order II Rule 2(3) CPC., seeking permission to sue by reserving certain reliefs to claim at a later point of time by way of separate suit, since according to the plaintiffs, the mortgaged property's worth is very low in value and would not be sufficient to satisfy the entire amount due under the mortgage deed executed by the first defendant. As the petitioner claim is only regarding a relief of permanent injunction not to alienate or encumber the suit property, the Court ought to have numbered I.A., and decide the same on merits after numbering the suit. The Court cannot reject the same at the threshold. Therefore, the ground on which the interlocutory application was dismissed by the Court below, cannot be sustained. Hence, the same is liable to be set aside.
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br />5. In the result, the present civil revision petition stands allowed. No costs. The Court below is directed to entertain the interlocutory application under Order II Rule 2 of CPC., in the suit S.R.No.10993 of 2020 filed by the petitioners/plaintiffs and proceed further with the same in accordance with law. Consequently, connected civil miscellaneous petition is also closed.
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