Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1438 (JHR)

Anil Kumar v. State of Jharkhand

2015-11-20

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 26.03.2003 and order dated 29.09.2003 whereby, order of attachment under Order XXXVIII Rule 5 CPC has been passed, the present writ petition has been filed. 2. The petitioner is defendant no. 1 in Money Suit no. 63 of 2002 which was filed by the respondent no. 2 for a decree for a sum of Rs. 60,000/. In the pending suit the petitioner-defendant no. 1 appeared and filed an application raising a question of limitation. The petitioner simultaneously filed written statement alleging that the plaintiff was a money lender and the suit was barred under Bihar Money Lenders Act. The story of loan to him was denied by the petitioner. In the written statement the petitioner pleaded that the suit was barred by limitation. 3. The learned counsel for the petitioner submits that though, the suit was apparently barred by limitation, the Trial Court mechanically passed an order under Order XXXVIII Rule 5 CPC and directed the petitioner to furnish security of Rs. 60,000/. It is contended that without recording a finding of prima-facie case in favour of the plaintiff and the reasons for the order of attachment, impugned orders have been passed mechanically. 4. I find that the Money suit was filed on the allegation that the plaintiff extended friendly loan of Rs. 60,000/to the defendants who are partners in M/s Bharat Electricals, Jamshedpur. The defendants issued cheque drawn on State Bank of India, Jamshedpur for Rs. 40,000/however, the said cheque was dishonoured on account of insufficient fund. Another cheque for Rs. 20,000/issued by the defendants, on presentation was dishonoured due to insufficient fund. Since the defendants refused to pay loan amount to the plaintiff, the plaintiff first issued legal notice dated 10.11.1999 and then instituted the suit for a decree for a sum of Rs.60,000/with interest. In the pending suit the plaintiff filed application under Order XXXVIII Rule 5 CPC alleging that the defendant no. 1 threatened him that he would dispose of the property over which the defendants were carrying business in the name and style of M/s Bharat Electricals. Opposing the said application defendant no. 1 filed his reply asserting that the schedule property does not belong to him and he is only a tenant in the said premises. The defendant no. 1 threatened him that he would dispose of the property over which the defendants were carrying business in the name and style of M/s Bharat Electricals. Opposing the said application defendant no. 1 filed his reply asserting that the schedule property does not belong to him and he is only a tenant in the said premises. The defendant no. 1 pleaded that the schedule property belongs to the Kamani Centre, Jamshedpur and as such he could not have disposed of the said property. However, I find that the petitioner did not move an application for impleadment of Kamani Centre, Jamshedpur as party defendant. It does not appear from the materials brought on record that the petitioner produced any other evidence to prima-facie establish that the schedule property belonged to the Kamani Centre, Jamshedpur. The order of attachment was passed only after hearing both the parties. Moreover, if the defendants are tenant under Kamani Centre, Jamshedpur they are not the persons who could have raised objection to the order of attachment. The alleged owner, that is, Kamani Centre has not approached the Court challenging the said order. Considering the aforesaid facts, I am not inclined to interfere in the matter and accordingly, the writ petition is dismissed.