UNION BANK OF INDIA v. E. FARIDUN ABBAS — 1997 DIGILAW 676 (DEL)

K. S. Gupta ( 1 ) LAINTIFF filed LA. No. 12778/96allegingthatdefendantno. 2 died in the month of November, 1995. Plaintiff while inquiring the details of the legal heirs of deceased defendant No. 2 came to know that defendants 1 and 3 are not residing at the given addresses for a long time. Defendant No. 4 was proceeded ex-parte by the order dated September 26,1984. It was also revealed that defendant No. I disposed of the hypothecated goods and the other movable and immovable properties and left the premises of work and residence without prior informing the Plaintiff-Bank. ( 2 ) IT is further alleged that on the last date of hearing i. e. November 19,1996, it was informed thatdefendant No. 1 is in London while defendant No. 3 is in Russia at present. It is stated that with intention to obstruct and delay the execution of the decree which may be passed in the suit against them, defendants 1 and 3 shifted out of India by disposing of their respective properties including the hypothecated goods. It is prayed that the said defendants be arrested forthwith and may be called upon to give security for their appearance for the amount of the decree that maybe passed against them. ( 3 ) DEFENDANT Nos. 1 and 3 have contested the application by filing joint reply. It is alleged that defendant No. 1 is presently earning his livelihood in U. K. and visits India off and on. He was present in Court in April, 1995 and February, 1996 when the case was fixed for evidence of parties. It is alleged that the answering defendants have furnished their present addresses. Plaintiff-Bank has not point out which of the movable or immovable assets have been disposed of by the answering defendants. It is denied that the answering defendants shifted out of India by disposing of their respective properties with the intention to obstruct and delay the execution of decree which may be passed in the suit against them. ( 4 ) HEARD the learned Counsel for the plaintiff and defendant Nos. 1 and 3. ( 5 ) IN Mis. Chelsee Mills and Ors. v. Mis. Chorus Girl inc. . 1990 (2) Delhi Lawyer 88=41 (1990) DLT 142, it was held by this Court that a woman cannot be arrested or detained in civil prison under Rule I of Order XXXVIII CPC. 1 and 3. ( 5 ) IN Mis. Chelsee Mills and Ors. v. Mis. Chorus Girl inc. . 1990 (2) Delhi Lawyer 88=41 (1990) DLT 142, it was held by this Court that a woman cannot be arrested or detained in civil prison under Rule I of Order XXXVIII CPC. Therefore, the plaintiff-Bank cannot seek arrest before judgment of defendant No. 3 who is a woman. ( 6 ) AS regards defendant No. 1, who is admittedly residing in U. K. at present, thecaseoftheplaintiff-Bankisthat Rs. 5,00,700. 00 towards term loan. Rs. 1,04,863. 10 P towards C. C. Hypothecation A/c No. 1, Rs. 2,48,416. 50 P. towards C. C. Hypothecation A/c No. 2, Rs. 81,224. 10 P. toward C. C. Hypothecation A/c No. 3 totalling Rs. 9,35,202. 70 P. was due from him as on May 20,1983, inclusive of interest. Defendant No. 1 for availing of the facilities of term loan and C. C. Hypothecation executed promissory notes and hypothecation agreements as detailed in paras 3 and 6 of the plaint in favour of the Plaintiff-Bank. G. K. Thairani, who was working as Manager in Lajpat Nagar Branch of the Plaintiff-Bank. during the period November, 1972 to May, 1977 as Public Witness Public Witness 1 has, inter alia, stated that defendant No. 1 who was sanctioned three loans put his signatures on two Hypothecation goods agreements Exs. Public Witness Public Witness I /3 and Public Witness Public Witness I/4 in his presence at Point A. In her deposition Smt. Jasbir Bajaj Public Witness Public Witness 2, who remained posted as an Accountant in the said Branch of the Plaintiff-Bank from January, 1978 to August, 1981 stated that defendant No. 1 appended his signature on the letter of hypothecation Ex. Public Witness Public Witness 2/2 in her presence. Under Exs. Public Witness Public Witness 1/3, Public Witness Public Witness 1/4 and Public Witness Public Witness 2/2 machinery to be purchased by defendant No. 1 and also raw material and semi-finished goods were hypothecation by defendant No. 1 in favour of the Plaintiff-Bank. It may be noted that in the joint reply it is not denied specifically by defendant No. 1, principal borrower, that he had disposed of the goods which were hypothecated by him with the Bank. There is no material on the file to suggest that defendant No. 1 owns any movable or immovable property in India. It may be noted that in the joint reply it is not denied specifically by defendant No. 1, principal borrower, that he had disposed of the goods which were hypothecated by him with the Bank. There is no material on the file to suggest that defendant No. 1 owns any movable or immovable property in India. Therefore, only conclusion which one may draw is that the hypothecated goods were disposed of by defendant No. 1 within intent to obstruct or delay the execution of decree that may be passed against him in this case. Further the record does not indicate that defendant No. 1 was present either in April, 1995 or February, 1996 when the case was fixed for evidence of the parties, as alleged. Plaintiff-Bank has, thus, made out of case for furnishing of security by defendant. No. I for his further appearance in the suit. ( 7 ) THEREFORE, defendant No. 1 is directed to furnish security for his appearance at any time when called upon during the pendency of the suit and until satisfaction of any decree that may be passed against him in the suit within tour weeks from today. Application is disposed of accordingly. ( 8 ) LIST for further orders on September 22, 1997. Ordered accordingly.