Mohinder Pal v. Bharat Bhushan Jai Narain, Commission Agents
2000-02-29
V.M.JAIN
body2000
DigiLaw.ai
Judgment 1. This is a revision petition against the order dated 8-1-2000 passed by the trial Court, dismissing the application of the plaintiffs under Order 38, Rule 5, C.P.C. 2. The facts in brief are that the plaintiffs filed a suit for recovery of Rs. 8,72,028-30P (Rs. 6,95,858-22p as principal amount and Rs. 1,76,174.80P as interest) agaisnt the defendants and also prayed for mandatory injunction directing the defendants to issue sales tax forms etc. It was alleged that the plaintiffs had sold paddy for the abovesaid amount and the defendants had failed to make the payment and as such the suit for recovery was filed. Along with the suit, the plaintiffs also filed an application under Order 38, Rule 5 read with Sec. 151, C.P.C.for attachment before judgment of the accounts of defendants Nos. 1, 2 and 4 with the various banks in their names and in the name of M/s. Rakesh Kumar Dinesh Kumar and also in respect of the amount payable to these defendants by M/s. Banwari Lal Daya Krishan and the payments to defendant Nos. 1 and 2 by defendant No. 3. In the said application, it was alleged that plaintiff No. 1 was the sole proprietor concern of plaintiff No. 2 and that the plaintiffs were dealing in commission agency of wheat and paddy crops and similarly defendants Nos. 1 and 2 where also dealing in commission agency of wheat and paddy crops while defendant No. 3 along with defendants Nos. 1 and 2 used to purchase paddy crop of Jiri from the plaintiffs on credit from time to time. It was alleged that defendants Nos. 1 and 2 were liable to pay a sum of Rs. 6,95,854-22P as principal amount towards balance of the paddy sold and delivered on credit besides interest of Rs. 1,76,174-08P due up to the date of filing of the suit. It was alleged that defendant Nos. 1 and 2 with intent to obstruct/delay the execution were about to remove whole or part of its property from the local limits of the jurisdiction of the Court. It was further alleged that defendants Nos. 1 and 2 were under great debt and have to pay huge amount of the public.
It was alleged that defendant Nos. 1 and 2 with intent to obstruct/delay the execution were about to remove whole or part of its property from the local limits of the jurisdiction of the Court. It was further alleged that defendants Nos. 1 and 2 were under great debt and have to pay huge amount of the public. It was further alleged that defendant No. 2 had created another firm in the name of M/s. Ramesh Kumar Dinesh Kumar and had made his wife, Smt. Kalawati, as its sole proprietor in order to save the liability of the public with mala fide intention. It was alleged that in fact the said firm was being run by defendant No. 2 himself. It was further alleged that defendant No. 3 had to pay some amount to defendant Nos. 1 and 2 and the bank account of respondents Nos. 1 and 2 and of the firm M/s. Ramesh Kumar Dinesh Kumar were with various banks and M/s. Banwari Lal Daya Krishan, Commission agents. It was alleged that the accounts and payments of the defendants mentioned above be attached to the tune of Rs. 10 lacs so that execution may be effected and the defendants may not succeed to obstruct the execution of the decree, if any, passed by the Court. It was alleged that it was just and proper that the accounts of the defendants mentioned above be attached before judgment in the interest of justice. 3. The abovesaid suit and the application under Order 38, Rule 5, C.P.C.were contested by the defendants. In joint reply to the application under Order 38, Rule 5 read with Sec. 151, C.P.C., it was alleged by defendants Nos. 1 and 2 that the firm M/s. Ramesh Kumar Dinesh Kumar was an independent concern owned by Smt. Kalawanti. It was further alleged that the plaintiff-firm had purchased Soyabin of the value of Rs. 2,03,056/- and of the value of Rs. 5,46,004-60P and after adjustment these amounts, Ved Parkash, plaintiff, had taken loan of Rs. 1,40,000/- from defendant No. 1 firm and a writing was also executed and signed by Ved Parkash on his letter pad. It was denied that defendant No. 3 had ever purchased any crop from the plaintiffs on credit. It was further alleged that no amount was payable by defendants Nos.
1,40,000/- from defendant No. 1 firm and a writing was also executed and signed by Ved Parkash on his letter pad. It was denied that defendant No. 3 had ever purchased any crop from the plaintiffs on credit. It was further alleged that no amount was payable by defendants Nos. 1 and 2 to the plaintiffs as the balance amount to be paid had already been adjusted against the purchase of Soyabin and entries to that effect were made in the account books. It was alleged that there was no question of obstruction and delay of execution and there was no question of removal of the whole or any part of its property by the defendants from the local limits of the jurisdiction of the Court. It was denied that defendant No. 2 had established any firm by the name of M/s. Ramesh Kumar Dinesh Kumar. On the other hand, it was alleged that the said firm was the sole proprietorship concern of Smt. Kalawanti. It was alleged that no amount was due to defendants No. 1 and 2 from defendant No. 3. It was further alleged that at the relevant time defendants No. 1 and 2 had no accounts with any of the banks or with M/s. Banwari Lal Daya Krishan, when the defendants received the notice in this case. It was alleged that there was no question of attachment of the accounts of the defendants. It was accordingly prayed that the application be dismissed. 4. The learned trial Court, after hearing both sides and perusing the records, dismissed the application of the plaintiffs under Order 38, Rule 5, C.P.C.by order dated 8-1-2000. It is against this order of the trial Court that the plaintiffs have filed the present revision petition. 5. Notice of motion was issued. Counsel for the parties have been heard and record perused. 6. The learned Counsel appearing for the petitioners has submitted before me that the trial Court erred in law in dismissing the application of the plaintiffs under Order 38, Rule 5, C.P.C.It was submitted that 1135 bags of paddy in the name of defendant No. 4, lying with Haryana Warehousing Corporation should be attached before judgment and the defendants were likely to remove the said paddy from the local limits of the jurisdiction of the Court and were likely to dispose of the same.
On the other hand, the learned Counsel appearing for the defendant-respondents submitted before me that earlier the trial Court had passed the order of attachment. It was contrary to law and in C.R.No. 2491 of 1999 filed by defendant No. 1-firm, the said order of the trial Court dated 28-1-1999 was set aside and the trial Court was directed to decide the matter afresh in accordance with law. It was submitted that thereafter the trial Court, after considering the entire matter, had dismissed the application for attachment before judgment. It was further submitted that the application under Order 38, Rule 5, C.P.C.filed by plaintiffs was as vague as possible. No specific allegations were made nor the details of the property sought to be attached were given and only general allegations were made seeking attachment before judgment. 7. After hearing both sides and perusing the record, I find no merit in the present revision petition.
No specific allegations were made nor the details of the property sought to be attached were given and only general allegations were made seeking attachment before judgment. 7. After hearing both sides and perusing the record, I find no merit in the present revision petition. Order 38, Rule 5, C.P.C.reads as under :- "Order 38 Rule 5-Where defendant may be called upon to furnish security for production of property :- (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-(a) is about to dispose of the whole or any part of his property, or(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." 8 A perusal of the above would show that it is only when the Court is satisfied by affidavit or otherwise at any stage of the suit that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, that the Court is competent to direct the defendant within a time to be fixed by it either to furnish security in such sum as may be specified in the order or to appear and show cause why he should not furnish security.
Sub-rule (2) of Rule 5 provides that the plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. It is also provided that the Court may also, in the order, direct the conditional attachment of the whole or any portion of the property so specified. It is also provided under sub-rule (4) of Rule 5 that if any order of attachment is made without complying with the provisions of sub-rule (1) of Rule 5, such attachment shall be void. Rule 6 of Order 38 further provides that where the defendant fails to show cause why he should not furnish security or fails to furnish the security required within the time fixed by the Court, the Court may order that the property specified or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. It is further provided that where the defendant shows such cause or furnishes the required security and the property or its portion has been attached, the Court shall order the attachment to be withdrawn. 9. In the present case, as referred to above, the application filed by the plaintiffs under Order 38, Rule 5 C.P.C.is as vague as possible. Only general allegations have been made merely to comply with the requirement of Order 38, Rule 5 C.P.C., by alleging that defendants Nos. 1 and 2 with intent to obstruct/delay the execution is about to remove the whole or part of its property from the local limits of the jurisdiction of the Court. No details had been given to show as to in what manner and which property the defendants were likely to remove from the local limits of the jurisdiction of the Court. The mere allegation that defendants Nos. 1 and 2 have to pay great debt to the public or that a new firm by the name of M/s. Ramesh Kumar Dinesh Kumar had been established by defendant No. 2 in the name of his wife, Smt. Kalawanti, in my opinion, would not be sufficient to pass necessary orders for attachment before judgment. Furthermore, no details have been given with regard to the property sought to be attached before judgment by the plaintiffs. It is only alleged in paras 7 and 8 of the application that accounts of defendants Nos.
Furthermore, no details have been given with regard to the property sought to be attached before judgment by the plaintiffs. It is only alleged in paras 7 and 8 of the application that accounts of defendants Nos. 1 and 2 with various banks and with M/s. Banwari Lal Daya Krishan be attached to the tune of Rs. 10 lacs and similarly the amount due from defendant No. 3 to defendants Nos. 1 and 2 be also attached before judgment. However, no details have been given either with regard to the bank account numbers of defendants Nos. 1 and 2 with various banks or the amounts lying deposited therein. In the absence thereof, the requirement of Order 38, Rule 5 sub-rule (2) does not appear to have been complied with by the plaintiffs. 10. Furthermore, in the present case, defendants Nos. 1 and 2, in their written reply, had specifically stated that they had no accounts with any of those banks or with M/s. Banwari Lal Daya Krishan at the time when they had received the notices in this case. In these circumstances, there was no question of attaching those accounts. It was also alleged that no amount was due to defendants Nos. 1 and 2 from defendant No. 3 at the relevant time. Under these circumstances, in my opinion, the learned trial Court was perfectly justified in dismissing the application of the plaintiffs under Order 38, Rule 5, C.P.C. 11. In Ms. Poonam Chanda V/s. M/s. Takkar Electronics (1999) 1 Pun LR 382, it was held by this Court that the provisions of Order 38, Rules 4 and 5 can be invoked on very strong facts and there should be some positive averments before the order of attachment before judgment could be passed in favour of the plaintiff. Vague allegations cannot constitute and satisfy the ingredients underlining these provisions. The coercive directions postulated within the scope of Order 38 cannot be taken recourse to by the applicants in a casual manner. The applicant must have not only a prima facie case but should be able to satisfy the Court that the grounds pleaded satisfy the ingredients under Order 38, Rule 5, such as that the defendant is bound to leave the jurisdiction of the Court or is attempting to defray the decree which is likely to be passed in favour of the plaintiff.
Similarly in Om Parkash Bansal V/s. Canara Bank, (1995) 1 Pun LR 725, it was held by this Court that it was well established proposition of law that mere allegations in the application for attachment before judgment were not enough. Some definite instances or evidence must be produced in order to show that the respondent was about to dispose of his property or remove the same from the jurisdiction of the Court with an intent to defeat or delay the execution of the decree. It was further held that mere allegations were not enough and that some definite instances or material must be produced by the plaintiff to make out a case for attachment before judgment. Reliance was placed on the law laid down by Madras High Court in the case reported in UCO Bank, Madras V/s. Sukra Shoe Fabric, AIR 1992 Madras 293, in which it was held that attachment before judgment was an extraordinary remedy and that it was incumbent upon the applicant to state the grounds to prove the allegations by giving material particulars and source of information, belief and so on. It was further observed that a mere verbatim repetition of the language of Order 38, Rule 5, without an iota or substratum of truth amounted to merely a colourable imitation and constituted an abuse of the process of Court. 12. The law laid down in the abovesaid authorities fully apply to the facts of the present case. In the present case no specific instances have been given by the plaintiffs which may justify the passing of the order of the attachment before judgment. 13. Furthermore, the request made by the counsel for the petitioners was that 1135 bags of paddy lying with Haryana Warehousing Corporation in the name of the defendant No. 4, namely, M/s. Ramesh Kumar Dinesh Kumar should be attached. No such prayer was made by the plaintiffs in this regard before the trial Court. Even otherwise, according to the plaintiffs, these bags were lying with Haryana Warehousing Corporation in the name of defendant No. 4, M/s. Ramesh Kumar Dinesh Kumar and at this stage it could not be said that those bags were liable to be attached before judgment, especially when even according to the plaintiffs they have to recover the disputed amount from defendants Nos. 1 and 2. 14.
1 and 2. 14. In view of my detailed discussion above, finding no merit in the revision petition, the same is hereby dismissed with no order as to costs.Revision dismissed.