(Prayer:Original Side Appeal filed under Order XXXVI Rule 9 of Original Side Rules read with Clause 15 of Letters Patent, against the order, dated 17.4.2014, made in A.No.677 of 2014 in C.S.No.70 of 2014.)
M. Jaichandren, J.
1. At this stage of the hearing of the Original Side Appeal, an affidavit had been filed on behalf of the first respondent, dated 7.6.2014. The said affidavit reads as follows:
"I, Abdul Malik son of Late T.Mohammed Ibrahim, Muslim, aged about 48 years and residing at No.1, Swami Nagar, Extension 1, Ullagaram, Chennai-600 091, do hereby solemnly affirm and sincerely state as follows:
1. I am the Authorised Signatory of the 1st Respondent herein and as such am fully aware of the facts and circumstances of the case and thus competent to affirm to this affidavit. Acquainting myself with the relevant records/documents, I am affirming to this affidavit for the benign consideration of this Hon'ble Court.
2. I submit that the 1st Respondent herein filed C.S.No.70 of 2014 for recovery of Rs.12,03,037/- Rupees Twelve Lakhs Three Thousand and Thirty Seven Rupees Only) and damages to the tune of Rs.15,00,000/- (Fifteen Lakhs Only) from the 2nd to 4th Respondents herein. In the said suit, Application No.677 of 2014 was filed to pass an order of DIRECTION, directing the 2nd to 4th Respondents herein to furnish security to the extent of Rs.27,03,037/- (Rupees Twenty Seven Lakhs Three Thousand and Thirty Seven only) failing which this Hon'ble Court may be pleased to order attachment of the Schedule mentioned property.
3. I submit that during the course of arguments in Application No.677 of 2014, the Learned Counsel for the 2nd to 4th Respondents filed a memo agreeing to furnish a Bank Guarantee as security for an equivalent INR of 16000 US Dollars as on the date of order to be passed by this Hon'ble Court, within 4 weeks time.
4. I submit that the Learned Single Judge after reading the Affidavit of the Applicant, Counter Affidavit of the Respondents and memo filed by the Respondents in Application No.677 of 2014 passed an order dated 17th April 2014 directing them to furnish bank guarantee within four weeks in default of which, the attachment of the schedule mentioned property as per procedure. The Learned Single Judge posted the matter after four weeks.
5. Instead of furnishing bank guarantee, the Learned counsel for the 2nd to 4th Respondents informed the Learned Single Judge when the matter was listed on 02.06.2014 that the order does not specifically mention 16,000 US dollars. Therefore, the Learned Counsel for 2nd to 4th Respondents informed the Learned Single Judge that he would file an affidavit seeking clarification and sought an adjournment till 06.06.2014. I submit that the Petitioner herein claiming to be owner of the schedule mentioned property represented before the Learned Single Judge on 02.06.2014 that the property belongs to her and should not be attached.
6. I submit that no affidavit regarding the clarification as informed during the hearing on 02.06.2014 by the Learned Counsel for 2nd to 4th Respondents was filed. Instead when the matter came up on 06.06.2014, the 2nd to 4th Respondents informed this Hon'ble Court that the Petitioner has filed O.S.A.No.141 of 2014 since her property is sought to be attached on failure to furnish bank guarantee. The affidavit filed by the Petitioner herein discloses that she was a Director of the 2nd Respondent company when a sum of 16000 US dollars was paid by the 1st Respondent to the 2nd Respondent. According to her affidavit, she had resigned only on 19.01.2012.
7. I submit that the 3rd Respondent during his conversation with the Managing Director of the 1st Respondent herein had informed that the property mentioned in the schedule belongs to him. The 1st Respondents Managing Director believed this representation to be true just like how he believed the other representations regarding the 2nd Respondent being a reputed export house sugar, rice, maize, tanning chemicals and cashew husks to be true. I submit that the 1st Respondent had no reason to disbelieve the statements of the 3rd Respondent at that time. Therefore, the schedule of the property was inserted seeking attachment upon failure to furnish security.
8. I respectfully submit that when the matter was taken up for hearing on 6th June 2014, the Learned Counsel for the 2nd to 4th Respondents submitted that they have already written to their Bankers for obtaining the Bank Guarantee in obedience of the Orders passed and in line with their undertaking Memo. The Learned counsel for the 2nd to 4th Respondents have also filed a letter before the Learned Single Judge written by the 2nd to 4th Respondents to its Bank for obtaining the Bank Guarantee. As the 2nd to 4th Respondents are furnishing Security, the requirement of an Attachment of the property does not arise and in view of the same and the facts that have now emerged, the 1st respondent gives up its claim seeking attachment over the schedule mentioned property. The 1st Respondent has filed a similar affidavit before the Learned Single Judge hearing Application No.677 of 2014, I submit that the 1st Respondent reserves its right to file a counter affidavit in CMP No. of 2014 in OSA 141 of 2014 if required.
9. In view of the above mentioned, this Hon'ble court may be pleased to take this Affidavit on record and dismiss OSA 141 of 2014 and p
Please Login To View The Full Judgment!
ass appropriate orders as this Hon'ble Court may deem fit and property in the circumstances of the case and thereby render justice." 2. The learned counsel appearing on behalf of the appellant had submitted that in view of the averments made in the affidavit filed on behalf of the first respondent, no further orders are necessary in the present Original Side Appeal. 3. In view of the said submission made by the learned counsel appearing on behalf of the appellant, the present Original Side Appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.