Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 643 (CAL)

ELF Lubricants India Ltd. v. Sudip Bose

2000-12-18

Malay Kumar Basu

body2000
JUDGMENT Malay Kumar Basu, J. This revisional application under section 115 of Code of Civil Procedure is directed against an order dt. 6th December, 2000 passed in M.S. 22 of 2000 by the learned Civil Judge (Sr. Division), 10th Court, Alipore under which he allowed interim attachment before judgment of the suit-property as described in a schedule of the petition. The relevant facts leading to the present revision may be summarised as follows: 2. The opposite party as the plaintiff filed the M.S. No. 22 of2000 before the court below alleging that they had been appointed as distributors for various lubricants of the ELF Lubricants India Ltd. (the present petitioner) and by virtue of arrangement between them they used to carry out distribution of various products of the said defendant, but suddenly in the first week of October, 1999 the defendant without giving any notice of termination disallowed the plaintiff to lift the products from their depot and on being contacted they refused to divulge any reason for such illegal termination. Thereafter under such circumstances the plaintiff was constrained to submit before them a statement of the expenses amounting to more than Rs. 10,00,000/- and claimed the amount but the defendant did not make any payment thereof. Thereafter on 10th January, 2000 the plaintiff received a letter from them to the effect that only a sum of Rs. 76,000/- and odd was payable by the defendant to the plaintiff towards full and final statement of the accounts and of the dues. Thereafter the plaintiff filed this Money Suit for realising his dues from the defendant amounting to about Rs. 26,93,000/- and odd. They also filed a petition under Order 38 Rule 5 of the Code of Civil Procedure in order to get the suit-properties as described in schedule A of the plaint attached before judgment and the court below after hearing the plaintiffs learned Advocate and considering the documents filed by him was pleased to direct the defendant to show cause why the same would not be allowed and pending its hearing it granted ad interim attachment of the property before judgment. 3. Being aggrieved by this order of the Court below the defendant (the present petitioner) has filed this revisional application challenging the impugned order as illegal and erroneous and also improper and liable to be set aside. 4. Mr. 3. Being aggrieved by this order of the Court below the defendant (the present petitioner) has filed this revisional application challenging the impugned order as illegal and erroneous and also improper and liable to be set aside. 4. Mr. Chatterjee, learned Advocate appearing for the petitioner has drawn my attention to the provision of the Order 38 Rule 5 (1) of the Code of Civil Procedure wherein it has been provided that where the court is satisfied by affidavit or otherwise that the defendant with intention 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, 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 to produce and place at the disposal of the court, when required, the said property or value of the same or such portion thereof as may be sufficient to satisfy the decree or to appears and show cause why he has not furnished security. Mr. Chatterjee then further attracts my notice to the provisions of clause (4) which lays down that if an order of attachment is made without complying with the provision of sub-rule (1) of this rule, such attachments shall be void. According to Mr. Chatterjee the joint reading of these two clauses of Rule 5 of Order 38 enjoins that the court must record its satisfaction about the fulfilment of the pre-condition namely, that the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court and that these mandatory provisions of this rule have been manifestly violated in the present case and the interim order of attachment has been passed by the court without being satisfied as to the fulfilment of this condition and order on that score alone is liable to be set aside. In support of his contention Mr. Chatterjee has relied upon a number of judgments of different High Courts. In AIR 1951 Cal. 156 (Premraj Mundra vs. Md. In support of his contention Mr. Chatterjee has relied upon a number of judgments of different High Courts. In AIR 1951 Cal. 156 (Premraj Mundra vs. Md. Maneck Gazi & Ors.) a single bench of this Court has held that where an application is made for an order in favour of the plaintiff under Order 38 Rules 5 and 6 it must be ascertained by the court that in the circumstance of the case and while relying on the facts of the respective purchaser that the plaintiff had made out a case for the order asked for in respect of his allegations that the intention of the defendant was to obstruct and delay the execution of any decree that may be passed against him in that suit. The next judgment which Mr. Chatterjee refers to is reported in 99 C.W.N. page 1 (Boeing Company vs. R.M. Investment & Trading Co. Put. Ltd.). In this case a Division Bench of this Court observed that the concept of attachment was different from that of injunction and the Civil Procedure Code has provided two different sets of provisions for the two and for an attachment to be granted. The plaintiff must show a good and arguable cause on the merits of the claim and there must be grounds for believing that the defendant had assets within the jurisdiction and that there is danger of the assets being tampered with. The last ruling that is cited by Mr. Chatterjee is reported in AIR 1989 Andhra Pradesh 214. Here a Single Bench of that court has held that it is not competent for the Court to issue an interim order of attachment without observing formalities which are mandatory in nature as laid down under sub-rule (1) of Rule 5 Order 38 C.P.C. and an ex parte order of attachment can be made either resorting to the provision of sub-rule (1) of Rule 5 or sub-rule (3) of Rule 5 and it must expressly be stated in the order as to under which of rules the court was proceeding. In this judgment the Court formulated that principles under which such an interim relief could be granted and it was emphatically enjoined that the court was to be satisfied on the materials furnished that the defendant obstructed or delayed the execution of any decree that might be passed against him to dispose of the whole or any part of his property from the local limits of the jurisdiction and then only the court might direct the defendant within a particular time to furnish security etc. So, to adopt any of the courses provided thereunder the court must exercise its mind and on being satisfied that the materials placed before him show that the defendant is about to dispose of the whole or any part of his properties it would pass the order of attachment of this nature. 5. It goes without saying that the order of attachment before judgment is a very serious matter which should not ordinarily be granted without ascertaining that the exigencies postulated under Rule 5 do exist to the satisfaction of the court from the materials placed before it. Therefore, it is not like an application for temporary injunction where just on the basis of facts alleged the question is to be determined if a prima facie case is made out. 6. Going through our instant case it is found that the impugned order of the learned court below does not contain a single line as to what prompted it to allow such an interim relief. It is not ascertainable from four corners of this order as to whether the court had any satisfaction about the fulfilment of the pre-conditions mandatorily provided under Rule 5 discussed above. The Court has simply passed its order by stating that considering the prima facie case, the balance of convenience and inconvenience and irreparable loss he was inclined to hold that conditional attachment should be issued against the defendant for the ends of justice. It is needless to mention that this is not a reason at all. He has simply put certain phrases most vaguely without making any effort to supply the reasons as to why he so considered, that is to say, why he found that there was a prima facie case or there was balance of convenience or inconvenience in favour of the petitioner or petitioner would suffer irreparable loss etc. He has simply put certain phrases most vaguely without making any effort to supply the reasons as to why he so considered, that is to say, why he found that there was a prima facie case or there was balance of convenience or inconvenience in favour of the petitioner or petitioner would suffer irreparable loss etc. Moreover the condition which was required to be ensured by him before granting this interim relief was not these ones but rather the question whether the defendant had any intention to obstruct or delay the execution of any decree that might be passed against him. As to this aspect the court below is conspicuously silent. He did not care to feel the need of being satisfied as to the fulfilment of these conditions. What is more important and curious, from the averment of the plaintiff also I do not find any whisper as to whether to plaintiff was having any fear about such threatened obstruction or delaying of the execution of the decree. The plaintiff is totally silent on this aspect. But this being the sine qua non for application of Order 38 Rule 5, the non-observance of this condition becomes a stumbling block in the way of the plaintiffs getting a relief of this nature. 7. Much has been argued on the question whether the reliefs claimed were genuine or justified but I do not find it necessary at all to dwell upon that aspect in this hearing where the main criterian is to ascertain the application of Order 38 Rule 5 on the fulfilment of the aforementioned condition. That requirement in view of the amended clause 4 of Rule 5 has now become essential and indispensable and the plaintiff having miserably failed on that score the ad interim order of attachment before judgment was not at all justified. 8. In the result, the revisional application is allowed. The impugned order dated 6th December, 2000 passed by the court below granting ad interim attachment before judgment appears to be illegal and hence be set aside. 9. It be recorded that the Court passes no opinion on the merits of the suit. 10. The stay of the order prayed for is rejected. 11. Let a xerox certified copy of this order be given to the learned Advocates for the parties, if applied for, as expeditiously as possible. Revisional application allowed.