Judgment :- 1. This application has been filed for attachment of the bank account of the 5th respondent bearing Account No.222-0-526418-9 maintained with the Standard Chartered Bank, Mumbai, Garnishee. 2. In support of the applications, it is pleaded that the plaintiff/applicant had entered into a sales contract on 1.11.2011 with Itus International FZE, respondent No.1 for sale of 150 M.T. + 10% Remelted Lead Ingots in six numbers of 20 feet containers at the rate of USD 1800 per M.T. C.I.F., Chennai. Under the contract with the respondent No.1, the latter was to load the aforesaid quantity of goods at any Middle-East Port and have the same discharged at Chennai. The payment was to made 100% cash against document (CAD) through bank with Sharjah Islamic Bank at HISN branch, Sharjah, United Arab Emirates, being the nominated bank of the respondent No.1. 3. The terms and conditions of the parties was that the disputes were to be settled amicably or by arbitration by B.I.R. at Delhi. However, quantity of the goods were agreed to be discharged at Chennai Port. The bankers of the applicant is HDFC Bank Limited at 8/24, Salco Centre, 3rd Floor, Richmond Road, Bangalore 560 025 and the original documents were to be forwarded to the bankers of the respondent No.1. 4. On 31.1.2012, the respondent No.5 issued a Cargo Arrival Advice to the applicant informing that six containers, being the subject matter of the aforesaid two bills of Lading arrived at Chennai Port on 1.2.2012 on board the vessel MSC Levina and the said goods had been manifested in IGM No.2029419, Item No.128. 5. On 8.2.2012 HDFC Bank Ltd., the bankers of the applicant received non negotiable copies of two Bills of Lading bearing No.MSCUD9127343 dated 27.12.2011 and No.MSCUD9132319 dated 17.1.2012 from the bankers of the respondent No.1 whereby the respondent No.1 represented to the applicant that the goods under the sales contract had been allegedly shipped by the respondent No.1 on board vessels, namely M.V. Northern Valour and MSC Mozambique under Bill of Lading No.MSCUD9127343 dated 27.12.2011 and Bill of Lading No.MSCUD9132319 dated 17.1.2012 from the Port of Jebel Ali, United Arab Emirates for discharge at Chennai. HDFC Bank Limited intimated the applicant about the receipt of the Bills of Lading by an e-mail, dated 8.2.2012. HDFC Bank Limited intimated the applicant about the receipt of the Bills of Lading by an e-mail, dated 8.2.2012. The banker also sought necessary authorization for debiting the account for the full amount and also requested the applicant to submit the Bill of Entry as proof of import within three months from the date of payment. 6. By a letter dated 9.2.2012, the applicant authorized HDFC Bank to debit the account of the applicant for USD.269,937/-(USD two lakhs sixty nine thousand nine hundred and thirty seven only) being the amount of the bill inclusive of foreign bank charges. The aforesaid letter was initially scanned and sent to the bank by way of e-mail on the very same day. Subsequently, original letter was collected by the banker's representative and acknowledged on 11.2.2012. 7. On receipt of the original documents from the bank, the applicant engaged Sanjay Forwarders Pvt. Ltd. for clearance of the goods being the subject matter of the sales contract with the respondent No.1. The clearing agent of the applicant made necessary search and came to know from the website and downloaded the particulars of the Import General Manifest status where from it became apparent that the said Import General Manifest relating to the goods being the subject matter of the sales contract with the respondent No.1. Necessary inspection was also done on the Import General Manifest which was filed by the respondent No.5 on behalf of the respondent No.2 declaring the letter to be as an operator with discharge date and time as 31.1.2012. In the said Import General Manifest, the weight of the containers as specified in the Bills of Lading was stated as 124840 Kgs and 25125 Kgs, which tallied with the weight specified in the two Bills of Lading bearing No.MSCUD9127343 dated 27.12.2011 and No.MSCUD9132319, dated 17.1.2012. 8. On receipt of above confirmation, the applicant instructed its clearing agent to submit necessary Bill of entry and such Bill of Entry for home consumption was submitted on 9.2.2012 declaring the gross weight of the packages to be as stated in the Bills of Lading and the Import General Manifest for the purpose of assessment of the aforesaid Bill of Entry. The Bill of Entry was verified by the custom officials along with the import documents produced and the declaration in the Bill of Entry and assessed the goods for customs duty which was duly paid on 9.2.2012. 9. After the payment of necessary duty and the value of the goods, the Clearing Agent immediately took steps on 10.2.2012 for inspection and clearance of the goods and visited the Container Freight Station belonging to Sical Distriparks Ltd. The clearing agents were informed by Sical Distriparks Ltd. that the goods have been detained by the Customs Preventive Authorities, in view of discrepancy in the weight of goods mentioned in Equipment Interchange Receipt and with original weight of containers when the same was weighed at Container Freight Station. The clearing agent also came to know about this after the vessel MSC levina after discharge of the containers had left the Port on 2.2.2012 at 12.20 p.m. The containers were unloaded and discharged by the respondent No.5 and thereafter, sometime on or about 2nd/3rd February, 2012, the unloaded containers were transported from the Port by the respondent No.5 on behalf of the respondent No.2 to the Container Freight Station belonging to Sical Distriparks Ltd. by the respondent No.5 on behalf of the respondent No.2 describing the latter to be as operator. 10. On coming to know about discrepancy in weight, the applicant sent a letter, dated 15.2.2012, to its bankers, viz., HDFC Bank Ltd., for stop payment of "remittance against the collection of document" in case of payment was not released and in the event of same being released, to send a swift message to the corresponding banker to withhold remittance. The attempts of the applicant to contact the first respondent over phone failed. It sent a letter on 15.2.2012 informing that the applicant has been informed by SICAL that weight of the containers are only 9.7 MT as against the Bills of Lading and the invoice quantity of 149.965 MT of Remelted Lead Ignots. The applicant also informed the Chennai Customs Authorities for joint Inspection of the containers. A letter was written on 17.2.2012, to the Additional Commissioner of Customs, Docks, for joint inspection of the containers, with copy to the 5th respondent. 11. It is a case of the applicant that all attempts to contract the respondent No.1 failed. The applicant also informed the Chennai Customs Authorities for joint Inspection of the containers. A letter was written on 17.2.2012, to the Additional Commissioner of Customs, Docks, for joint inspection of the containers, with copy to the 5th respondent. 11. It is a case of the applicant that all attempts to contract the respondent No.1 failed. Similarly, HDFC bank informed the applicant that the amount had already been credited to the account of the first respondent on 22.2.2012. The seals of the containers were opened in the presence of the officials of the customs authorities, clearing agents of the applicant, representative of the respondent No.5 and the respondent No.2, wherein it was found that the containers contained only empty metal chemical drums without any Remelted Lead Ingots lying there. The containers thereafter have been re-stuffed with the empty drums and resealed and have been detained by the customs authorities and are now lying at the Container Freight Station in safe custody. 12. At the time of inspection of the goods, the applicant had engaged SGS India Private Limited as its Surveyor who has submitted a report on 8.3.2012 declaring that the drums which were lying inside these containers had no Remelted Lead Ingots. Master Marine Services was engaged by the respondent No.5 as their Surveyor who have also submitted a report on 2.3.2012 stating that only empty steel drums were de-stuffed from six containers and a copy of the said report was given by the respondent No.5 and subsequently, to the clearing agents of the applicant. 13. It is a case of the applicant that empty metal chemical drums were without any part of the contracted goods stuffed inside the six containers and which were loaded at the Port of Jebel Ali and thereafter discharged at Chennai. The respondent No.1 in breach of its agreement under the Sales Contract has failed, neglected and refused to deliver the contracted goods to the applicant inspite of receiving full payment for the same. 14. The 5th respondent sent two letters on 14.3.2012 to the first respondent and the applicant asking them to proceed for customs clearance in order to collect the cargo and redeliver empty equipments after the payment of the charges due and payable for the services rendered by it including that of terminal handling charges, demurrage charges, etc. 14. The 5th respondent sent two letters on 14.3.2012 to the first respondent and the applicant asking them to proceed for customs clearance in order to collect the cargo and redeliver empty equipments after the payment of the charges due and payable for the services rendered by it including that of terminal handling charges, demurrage charges, etc. A police complaint dated 16.3.2012 was also filed to initiate appropriate action against the respondents for fraud and cheating played on the applicant. 15. The applicant by letter dated 23.3.2012 called upon the respondents to make good the losses suffered by the applicant due to illegal acts of the respondents in collusion and conspiracy with each other, but to no avail. The respondent No.2 sent a vauge response to the said demand notice by merely stating that they are investigating the matter. 16. As already noticed above, inspite of repeated reminders, the first respondent has failed, neglected and refused to compensate for the loss and damages and to return the money credited to the bank account of the respondent No.1 in United Arab Emirates. Similarly, the respondent No.2, 3, 4 and 5 who have acted in collusion with the respondent No.1 are also failed and neglected to compensate the applicant for the losses suffered. 17. It is pleaded that in view of the acts of fraud and collusion among the defendants, all of them are liable to the plaintiff for the suit claim. The first defendant does not have any assets in India within the jurisdiction of this Court. The respondents 2 to 4 are also foreign entity and only assets belonging to the said companies presently available in India are the containers lying at various locations listed in detail in the schedule to the Judges Summons. The value of each container would approximately be Rs.5,00,000/-(Rupees five lakhs only) and therefore, the plaintiff/applicant prays for attachment of 35 containers lying at different locations. 18. It is submitted that the plaintiff reasonably apprehends that the respondents are taking steps to remove the containers out of India with intent to delay and obstruct the execution of any decree that may be passed against the respondents herein. 19. It is also submitted that if the containers are removed out of the jurisdiction of this Court, then the applicant will not be able to enforce the decree which may be passed in its favour. 20. 19. It is also submitted that if the containers are removed out of the jurisdiction of this Court, then the applicant will not be able to enforce the decree which may be passed in its favour. 20. The applicant also seeks attachment of bank account of the respondent No.5 on the plea that the respondent No.5 may withdraw the entire amount lying in the bank account, to delay the execution of any decree that may be passed in favour of the plaintiff/applicant. 21. The applications are opposed by the respondent No.5 by submitting that the whole suit is misconceived and suffers from misjoinder of parties, as impleadment of the defendants 2 to 5 is mischievous and wholly unwarranted and is done with an oblique motives. The respondent No.5 denied all the allegations made in the plaint and in the affidavits filed in support of the interim reliefs being false and baseless. It is further submitted that the suit against defendant No.5 itself is not maintainable, as it is admitted case of plaintiff/ applicant that he is agent of defendant No.2 22. It is submitted that the second defendant is a privately owned shipping line founded in 1970 and carries on its business in the name of M/s. MSC Mediterranean Shipping Co. SA, Geneva. The 5th defendant is the agent of the second defendant in India and is an affiliate of the second defendant in India and operates out of 33 branches in various places throughout India. 23. The defendant No.5 denied the allegation that the defendants 2 to 5 are party to the alleged fraud perpetrated on the plaintiff in collusion and conspiracy with the first defendant. The allegations are said to be unfounded, and is a bald allegation and have been levelled only to maintain the present suit which is otherwise not maintainable. 24. It is admitted that the defendant has issued a Cargo Notice, dated 31.01.2012. The stand of the defendant No.5 is that IGM was filed by them on the basis of the bill of lading and the bill of lading was prepared on the basis of the information furnished by the shipper i.e. the first defendant. Therefore, the statement that the weight was 124840 Kgs and 25125 Kgs respectively was on the basis of the information provided by the shipper and not on the basis of actual weighment of the container by the 5th defendant. 25. Therefore, the statement that the weight was 124840 Kgs and 25125 Kgs respectively was on the basis of the information provided by the shipper and not on the basis of actual weighment of the container by the 5th defendant. 25. It is further submitted that the Bill of Lading has also been prepared with the notation "shippers load, stow, count" and "particulars furnished by the shipper-non checked by the carrier – carrier not responsible" It is also submitted that Bill of Lading shows that consignment was subject to clause 14 of the Bill of Lading. 26. It is also submitted that the containers were moved out of CCTL, the seals on the container were intact which can be ascertained on a perusal of the Delivery Receipt and therefore, as per clause 5 of the Bill of Lading, the carrier's responsibility ceases once the cargo has been discharged from the vessel at the delivery port and when the cargo has been moved out of the discharge port in seals intact condition. The claim against carrier therefore is unfounded and baseless. 27. That in the letter, dated 17.2.2012 addressed to the Additional Commissioner of Customs, seeking permission for a joint survey due to a difference in weight. There was no allegation of fraud against the defendant No.5 and therefore, the allegations are imaginary with an attempt to maintain the present suit. 28. That though the goods have been insured, it is not disclosed as to whether any claim has been raised with the insurance company. In sum and substance, the stand of the 5th defendant is that the defendants 2 to 5 are no way responsible for the allegations made against the first defendant. 29. That by invoking Order 38 Rule 5 of Code of Civil Procedure, the applicant cannot convert unsecured debt into secured debt. It is also pleaded that merely on filing suit, the defendants cannot be debarred from using the property as shifting of machinery to another premises by itself is not a ground for attachment. The allegation that in the suit, about collusion between the defendant No.1 and defendants 2 to 5 is specifically denied. 30. It is also the case of the 5th defendant that the plaintiff/ applicant has failed to make out any prima facie case for exercising power under Order 38 Rule 5 C.P.C. and hence, the applications are deserve to be dismissed. 31. 30. It is also the case of the 5th defendant that the plaintiff/ applicant has failed to make out any prima facie case for exercising power under Order 38 Rule 5 C.P.C. and hence, the applications are deserve to be dismissed. 31. The learned counsel for the applicant/plaintiff vehemently contended, that the plaintiff has made out a prima facie case as it is proved on record that payment has been made for the goods agreed to be purchased from the first defendant and further that the goods have not been supplied. 32. It is the contention of the learned counsel for the applicant/plaintiff that the payment was made as Bill of Lading was raised by the defendant No.2 of which the defendant No.5 is an agent and the payment was made on the basis of Bill of Lading which shows that loading of purchased goods. Therefore, it is not open to the defendants 2 to 5 to take advantage of entry in Bill of Lading that "particulars furnished by the shippers-non checked by the carrier - , carrier not responsible" in terms of Clause 14. 33. The learned counsel for the applicant/plaintiff vehemently contended that the intimation has been sent by the respondent No.5 with reference to the arrival of goods though there was no such stipulation. Therefore, the defendants 2 to 5 cannot escape the liability. 34. The learned counsel also referred to the pleadings in the plaint to contend that there are allegation of fraud against the defendants. Therefore, if the containers are moved out of jurisdiction of this Court, it will not be possible for the plaintiff/applicant to execute the decree that may be passed in its favour and therefore, the applications deserve to succeed. 35. In support of this contention, the learned counsel for the applicant/plaintiff placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rajendran and others vs. Shankar sundaram and others (2008)2 S.C.C. 724 ) wherein it was held that Court while exercising jurisdiction under Order 38 Rule 5 of Code of Civil Procedure, is required to form prima facie opinion at that stage, it need not go into the correctness or otherwise of all the contentions raised by the parties. 36. There can be no dispute with the proposition of law laid down by the Hon'ble Supreme Court. 36. There can be no dispute with the proposition of law laid down by the Hon'ble Supreme Court. But the question is whether the plaintiff/applicant has make out a prima facie case against the defendants 2 to 5, as the documents placed on record clearly shows that the goods were expected by the Carriers based on the particulars furnished by the shippers which were not checked by the Carriers. It was clearly mentioned by the Carrier that Carrier will not be responsible for it. Even the particulars sent by the defendant No.5 as agent of the defendant No.2 were based on Bill of lading and therefore, the plaintiff/applicant cannot take advantage on that clause 14 of Bill of Lading was not so mentioned. 37. It may also be noticed that the suit is based on mere allegation that the defendants 2 to 5 on collusion with the defendant No.1 played fraud. On the mere allegation, the containers of the defendants 2 to 4 cannot be ordered to be attached when admittedly, there is no contract of sale with those defendants and the suit is basically filed against the defendant No.1 for breach of contract, with allegations of collusion against other defendants. 38. The learned counsel for the respondents on the other hand rightly placed reliance on the judgment of this Court in M/s. Thakur Shipping Co. Ltd. Bombay and another vs. Food Corporation of India (A.I.R. 1983 MAD 105) wherein the Hon'ble Division Bench of this Court was pleased to lay down as under: "33. Thus, a review of he reported cases and the ratio laid down therein clearly goes to show that the statements in the bills of lading regarding the number of bags, tins or containers that are shipped would constitute sufficient evidence against the ship owner about the exact number of bags, tins or containers being shipped. Thus, a review of he reported cases and the ratio laid down therein clearly goes to show that the statements in the bills of lading regarding the number of bags, tins or containers that are shipped would constitute sufficient evidence against the ship owner about the exact number of bags, tins or containers being shipped. But in so far as the weight, contents and value are concerned, if there is an endorsement that they are not known or if there is a qualifying remark indicating that the master of the vessel has entered those particulars in the bills of lading in accordance with the figures given to him by the shipper or consignor, then the statements in the bills of lading regarding those particulars would not be binding on the ship owner and it will be for the shipper or consignor to prove that the consignments loaded on board the ship were of the same weight and the contents were of the same nature and the value was of the same figure as those noted in the bills of lading. The hypothesis on which such a dictum has been laid is not far of to see. In so far as the number of bags, tins, or containers is concerned, they can be easily verified by a visual check and the checking process will not invoke any complicated procedure. On the other hand, checking the weight or nature or the ships cannot afford to do for various reasons, such as, the cost factor, the adherence to departure, and arrival, schedules, the lack of facilities for conducting such checks etc. Therefore, it is that if a bill of lading contained a disclaimer clause, it will not have effect in so far as the number of bags, tins etc. are consigned, as no mistake can be made by the master of a vessel about those particulars. But in so far as the weight, contents and quality are concerned, the disclaimer clause will certainly operate and in such a situation, it will be for the shipper or consignor to prove by adequate evidence that the particulars regarding weight contents etc. entered in the bill of lading represent the correct weight and the exact quantity of the goods which are loaded on board the ship." 39. entered in the bill of lading represent the correct weight and the exact quantity of the goods which are loaded on board the ship." 39. It may also be noticed that the only allegation against the defendants 2 to 5 is that if the containers are moved out of jurisdiction of this Court, it would defeat the right of the plaintiff. This cannot be a ground for attachment, as no allegation that containers are removed with an intention to defeat the right of the plaintiff/ applicant, specially when the suit is basically against the defendant No.1 with allegation of collusion of the defendants 2 to 5 which is not prima facie proved. 40. This Court inA.No.3608 of 2011 in C.S.No.520 of 2011 order dated 14.11.2011 (Mohammed Saud vs. M/s. Garuda Catering Company Pvt. Ltd. and two others) has held as follows: "8. Order 38 Rule 5 of Code of Civil Procedure bars the grant of relief, unless conditions envisaged under Order 38 Rule 5 are satisfied, as the order passed in violation of the Order 38 Rule 5 sub clause (1) & (2) will be void. The inherent equitable jurisdiction cannot be used to overlook specific bar under a statute or law. 9. Order 38 Rule 5 of the Code of Civil Procedure, which reads as under: "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. (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." 10 A perusal of the above provision would show that the Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct to 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 is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. 11 Further still, Hon'ble Supreme Court of India in the case of M/s. Raman Tech & Process Engg. Co. v. M/s. Solanki Trader, 2008 (2) SCC 302 , has observed as under: "The power under Order 38, Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38, Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements, under threat of attachment." 12. In light of the express provisions of Order 38, Rule 5 CPC and the observations of the Hon'ble Supreme Court in the matter of M/s. Raman Tech & Process Engg. Co. v. M/s. Solanki Trader, supra, the position of law that emerges is as under: 1. In light of the express provisions of Order 38, Rule 5 CPC and the observations of the Hon'ble Supreme Court in the matter of M/s. Raman Tech & Process Engg. Co. v. M/s. Solanki Trader, supra, the position of law that emerges is as under: 1. The Court, before calling upon the defendant to furnish security for production of property, has to be satisfied that the defendant, with an 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 is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. This satisfaction of the Court has to be objective and not subjective in as much as there has to be a positive and definite material before the Court to enable the Court to come to a prima facie conclusion that the defendant is about to dispose of the whole of part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him. Merely because a suit is filed or about to be filed against him, the defendant is not debarred from dealing with his property. Accordingly, mere fact that some material is placed before the Court showing that defendant has disposed of some of his properties would by itself not be sufficient for the Court to exercise the powers conferred upon it under Order 38, Rule 5 CPC without their being further material on record to show that the property is being disposed off by the defendant with an intention to frustrate the probable decree that may be passed against him. The intention of the defendant to remove or dispose of the whole or part of his property, with a view of obstructing or delaying the execution of any decree that may be passed against him is sine qua non before the power under Order 38, Rule 5 can be exercised by the Court. However, it may also be observed here that the question of ascertaining the intention of the defendant is a vexed question having no easy solution and precise mathematical tests. However, it may also be observed here that the question of ascertaining the intention of the defendant is a vexed question having no easy solution and precise mathematical tests. The true intention of the defendant in disposing of the whole or part of his property would thus, have to be determined by the Court having regard to the particular facts and circumstances of each case. 1. The Plaintiff- Applicant is required to satisfy the Court that all the ingredients specified in Order 38, Rule 5(1) CPC exist before the application filed by the Plaintiff-Applicant can be allowed. The same is evident from the reading of Clause 4 of the Order 38, Rule5. Merely because the defendant will not be prejudiced cannot be a ground in itself for the Plaintiff-Applicant to argue that the power under Order 38, Rule 5 CPC should be exercised by the Court. Accordingly, the Plaintiff-Applicant is required to place sufficient material before the Court so as to enable the Court to form a prima facie opinion that the defendant, with an 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. In order to do so, the Plaintiff-Applicant may be required to swear an affidavit in support of his application detailing the name, address and sufficiently describing the identity of the person or persons from whom he has received the information about the attempts of the defendant to dispose of the whole or any part of his property with an intent to obstruct or delay the execution of any decree that may be passed against him. 1. As the matter with regard to the power of the Court to call upon the defendant to furnish security for production of property, even before the judgment, has been detailed and expressly provided in Order 38, Rule 5 CPC, the Court cannot resort to its inherent powers under Section 151 CPC and call upon the defendant to furnish security for production of property in case the ingredients of Order 38, Rule 5(1) CPC are not fulfilled. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the matter of Nahar Industrial Enterprises Ltd v. Hong Kong & Shanghal Banking Corporation, 2009 (8) SCC 646 , wherein it has been held that where a matter has expressly been provided for in the CPC, inherent power cannot be resorted to. 41. The learned counsel for the respondent No.5 also rightly placed reliance on Sec.230 of the Contract Act, 1872, to contend that the suit against the defendant No.5 is not even competent. Sec.230 of the Contract Act, 1872 reads as under: "230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal- In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary- Such a contract shall be presumed to exist in the following cases:- (1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal; (3) where the principal, though disclosed, cannot be sued." 42. For the reasons stated above, it is proved that the applicant/plaintiff has failed to make out any prima facie case for invoking the provisions of Order 38 Rule 5 of Code of Civil Procedure. Consequently, finding no merit, the applications are ordered to be dismissed, but with no order as to cost.