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Madhya Pradesh High Court · body

2012 DIGILAW 69 (MP)

Emerald Industries v. Neeraj Pratibha "JV"

2012-01-13

N.K.MODY

body2012
JUDGMENT : Heard. 1.Being aggrieved by the order dated 5-8-2010 passed by XII Additional DistrictJudge, Indore , in Civil Suit No. 3/2010, wherebyapplication filed by the petitioner under Order 38 Rule 5, CPC for attachmentbefore judgment was dismissed, the present petition has been filed. 2.Short facts of the case are that petitioner filed a suit for recovery of Rs . 4 ,54,16,980 /- against therespondents. In the said suit an application was filed by the petitioner underOrder 38 Rule 5, CPC, wherein it was prayed that property of respondent No. 1be attached before judgment. The application was contested by the respondentNo. 1 on various grounds. Counter claim was also filed by the respondent No. 1for recovery of Rs . 36.26 crores .After hearing the parties, learned Court below dismissed the application filedby the petitioner, against which present petition has been filed. 3.Learned Counsel for the petitioner submits that petitioner is having everyapprehension that it is not possible to get the decree executed which willultimately be passed in favour of the petitioner. Itis submitted that respondent No. 1 is based at Mumbai having no immovableproperty in Indore .It is submitted that in the facts and circumstances of the case learned Courtbelow committed error in dismissing the application filed by the petitioner.Learned Counsel placed reliance on the decision in the matter of Rajendran Vs. Shankar Sundaram , 2008 (2) MPLJ 495, wherein Hon'ble Apex Court has observed that while exercising its jurisdiction under Rule 5 ofOrder 38 the Court is required to form a prima facie opinion at the stage andneed not go into the correctness or otherwise of all the contentions made bythe parties. It is submitted that petition filed by the petitioner be allowedand impugned order passed by learned Court below be set aside. 4. Shri Vishal Phal , learned Counsel for the respondent No. 1 submits that respondent No. 1 is alisted company. Respondent No. 1 is doing job work at Indore . The total work ofrespondent with the Indore Development Authorities isof Rs . 1 ,75,00,000 /- whichwill take another six months for completion of work. It is submitted thatrespondent No. 1 is having maintenance contract for the period of three years,therefore, there cannot any apprehension that if any decree is passed against respondent No. 1, then the same shall not be satisfied.Learned Counsel further submits that respondent No. 1 has filed counter claimfor recovery of Rs . It is submitted thatrespondent No. 1 is having maintenance contract for the period of three years,therefore, there cannot any apprehension that if any decree is passed against respondent No. 1, then the same shall not be satisfied.Learned Counsel further submits that respondent No. 1 has filed counter claimfor recovery of Rs . 36 crores against the petitioner which has already been replied by the petitioner in themonth of January, 2011, but in spite of lapse of more than one year no stephave been taken by the petitioner for early disposal of the suit. LearnedCounsel further placed reliance on a decision in the matter of Gagrat and Co. (M/s) Vs. Ismail ,1964 MPLJ 34, wherein it was held that "an order of attachment beforejudgment cannot be made on the mere asking of the plaintiff. Before making theorder the Court must be satisfied not only that the defendant is really aboutto dispose of his property or about to remove it from its jurisdiction but alsothat the disposal or removal is with intent to obstruct or delay the executionof any decree that may be passed. There must be some material on record toindicate that the satisfaction was not illusory". Learned Counsel submitsthat since there is nothing on record on the basis of which it can be said thatdecree if any is passed in favour of petitioner shallnot be executed, therefore, learned Court below committed no error indismissing the application. Learned Counsel further placed reliance in adecision in the matter of Raman Vs. Solanki Traders,2008(1) M.P.H.T. 426 (SC), wherein Hon'ble Apex Courthas held that power of attachment before judgment should be used sparingly andstrictly. Merely, because the defendant is attempting to remove or dispose ofhis assets is -not a ground to order attachment before judgment, unless theplaintiff also satisfies that he has a prima facie case. It is submitted thatpetition filed by the petitioner has no merits and same be dismissed. 5.After hearing the parties at length and keeping in view, the respondent No. 1is having huge contract of Indore DevelopmentAuthority an the fact that counterclaim is filed by the respondent No. 1, thisCourt is of the view that learned Court below has committed no error indismissing the application filed by the petitioner. In view of this, petitionhas no merits and same stands dismissed. In view of this, petitionhas no merits and same stands dismissed. However, it is made clear that sincerespondent No. 1 is based at Mumbai, therefore, respondent No. 1 is directed tofile an affidavit to the effect that if any decree is passed in favour of petitioner then the same shall be satisfied. Itis also directed that learned Court below shall issue Hum dust notice for theservice of respondent No. 2 which shall be given to the petitioner and shallproceed with the suit so that the suit be decided within a period of six months.