Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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money recovery suit/ sp. appl. for injunc. O.39

Querist : Anonymous (Querist) 24 March 2010 This query is : Resolved 
24.3.10.
After cheques bounced, I had filled u/s 138. I also filled on 18.12.09. a money recovery suit for Rs 31 lakhs, along with application under ord.39 for an injunction to restraint the respondents from selling or alienating their property. respondents are a registered partnership firm registered under partnership act of 1932, along with the four partners constituting the firm. I am the creditor of that firm to whom the cheques were issued in discharge of liability to the firm. The property is in the name of the firm. I was granted the injunction order on 11.03.10. However the respondents in the mean while during pendency of the matter sold the property, on 15.02.10. to Mr. Hari.


a) The property is 3650 m2.
b) The whole property was mortgaged to a bank from march 2002. up to 15.02.10. This liability was discharged by the purchaser Mr. Hari out of the purchase amount, and it is so mentioned in the sale deed.
c) The partners on 15.02.10 sold all 3650 m2 to this Mr. Hari
d) Now it has come to light that the partners of the firm had in the month of May 2009 while under mortgage to the bank w/o disclosure, sold 500 m2 of the same property, to Mr. Subash, and another 500 m2 to Mr. Raj. i.e. total 1000 m2.
e) Mr. Subash and Mr. Raj are close family friends.
f) by private agreement Mr. Subash and Mr. Raj decide to start some business together. Where Mr. Raj has come to an understanding with Mr. Subash that he will offer his 500 m2 as his portion of seed capital.
g) The partners now i.e.15.11.09 receive notice from their banker to pay up or this property will be attached.
h) The partners approach Mr. Subash, to sell the remainder of the property.
i) Mr. Subash keeping in mind the business understanding with Mr. Raj decides to purchase the whole property, and signs on 08.12.09. a MOU with the partners before a notary, on Rs.20/- stamp paper, for purchasing the entire property i.e. 3650 m2. for Rs. 70 lakhs, intending to cancel the earlier deeds of 500 m2 each with himself and Mr. Raj. So that he has one deed for the whole of the property of 3650 m2. paying a token amount of Rs. 60000/- by cheque at the time of signing the MOU. The cheque is not encashed but valid on date and in the hands of the partners. This MOU also contains a clause that an amount of 45 lakhs will be paid to the bank from the purchase price to get out of the Mortgage.
j) I come across this MOU, so I file a money recovery suit with an application for injunction to restraint the partners from selling the firms property.
k) The partners realizing that Mr. Subash is less willing to go ahead with the sale unless I am made party to the MOU and consequently settled, The partners quietly, sell the property to Mr. Hari. For Rs. 55 lakhs. 45 to the bank and 10 to the partners.
l) Mr. Hari expeditiously goes and takes a loan of one crore, mortgaging this property.

Result:
1. Mr. Subash and Mr. Raj have a sale deeds for 500 m2 each on an unpartitoned property out of the whole 3650 m2. dated May 09.

2. Mr. Subash has a MOU, amounting to a contract for sale for the entire property of
3650 m2.
3. Mr. Hari has a sale deed for the entire 3650 m2, which contains the 1000 m2 earlier sold to Mr. Subash and Mr. Raj.
5. The bank has a mortgage on the property, the sale deed of this property is encumbered by earlier deeds of Mr. Subash and Mr. Raj
4. I have an anfractuous injunction and a money recovery suit for Rs. 31 lakhs, against the partners who are now disappeared with 10 lakhs.

What is the recourse available to me?
What is the legal position of the others, i.e. Subash, Raj, Hari, The Bank

Will appreciate your advise and comments
Devajyoti Barman (Expert) 02 November 2010
I think you are in right course of action. Apart from that initiate criminal case against them too. If the criminal case gets started you could pray for attachment of properties of the absconding persons.


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