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Rajasthan High Court · body

2017 DIGILAW 2173 (RAJ)

Anil Agrawal v. Vikas Agrawal

2017-10-09

INDERJEET SINGH

body2017
JUDGMENT : Inderjeet Singh, J. 1. The instant appeal has been filed by the appellant against the order, dated 25.04.2017 passed by Additional District Judge No. 2, Alwar in Civil Misc. Application No. 46/17/2017. The brief facts of the case are that the plaintiff-respondent filed a Civil Suit before the trial court under Order 37 of CPC for recovery of amount Rs. 5,30,000/- and for permanent injunction against the appellant defendant not to alienate the shop No. 6 situated at Ganesh Market, Alwar and shop No. 3, situated at Mahadev Complex, Mohalla Sidhipura, Alwar to any person. It is alleged in the plaint that the defendant-appellant borrowed a sum of Rs. 5,00,000/- from plaintiff-respondent and thereafter plaintiff-respondent handed over a cheque, dated 17.09.2016 of Corporation Bank, Branch Alwar to the appellant-defendant for a period of six months on the interest of 12% per annum. The same amount was withdrawn by the appellant-defendant and thereafter, after lapse of six months when the plaintiff asked about the amount, the appellant-defendant refused to return the amount. The plaintiff-respondent along with the suit filed an application under Order 38, Rule 5 read with Order 39, Rules 1 & 2 and Section 151 of CPC. 2. The appellant-defendant filed reply to the application submitted by the plaintiff-respondent under Order 38, Rule 5 read with Order 39, Rules 1 & 2 and Section 151 of CPC. In reply to the application, the appellant-defendant denied the averments made by the plaintiff-respondent in the plaint as well as in the application to temporary injunction. It is specifically mentioned that the plaintiff-respondent is a close relative of appellant-defendant and for his business requirement borrowed a sum of Rs. 5,00,000/- from the wife of appellant-defendant. The plaintiff-respondent failed to returned the amount and on repeated requests plaintiff-respondent handed over the alleged cheque to the appellant. The defendant-appellant at the time of receiving the cheque asked about the cheque because the cheque was drawn in the name of appellant firm then the plaintiff-respondent told the appellant that if you want to take amount back then you have to take this cheque otherwise I have no other source to return your amount, then only the appellant accepted the cheque in question from the plaintiff-respondent. It was further stated in the reply to the application that shops mentioned by the plaintiff-respondent in the application have already sold by the appellant-defendant to the other persons through registered sale deed. It is further stated that he has received the cheque on account of business transactions between the parties and prayed that the application filed by the plaintiff may be dismissed. 3. Counsel for the appellant has submitted that the learned trial court has erred in not considering this aspect of the matter that the amount of cheque in question belonging to their business transactions and as such the plaintiff has not come with clean hands and also not narrating the true facts of the case and the learned trial court ignoring this aspect of the matter passed order, dated 25.04.2017 which deserves to be quashed and set aside. Counsel for the appellant further submits that the shops in question belongs to the appellant and he has every right to sale his property and sold the shops through a registered sale deed as such his property is not liable to be attached. Counsel further submits that for the amount of cheque in dispute the appellant is liable to pay back the same to the respondent is a question of fact which can only be decided after taking evidence by the trial court and after the final decision of the suit. At this stage the application filed by the plaintiff under Order 38, Rule 5 deserves to be dismissed. Counsel further prayed for quashing and set aside the order passed by the learned trial court. 4. On the other hand counsel for the respondent submits that the trial court in para No. 5 of the judgment has seen the bona fides of the appellant and observed that the property mentioned in the application the appellant has sold those properties after service of summon just to frustrate his application under Order 38, Rule 5. Counsel further submits that no prejudice would be caused to the appellant because the trial court has only ordered for submitting appropriate security of Rs. 5,50,000/- as per provisions under Order 38, Rule 5 and lastly prayed for dismissal of the appeal. 5. Counsel for the respondent in support of his contention relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Rajendran and Ors. 5,50,000/- as per provisions under Order 38, Rule 5 and lastly prayed for dismissal of the appeal. 5. Counsel for the respondent in support of his contention relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Rajendran and Ors. v. Shankar Sundaram and Ors., reported in AIR 2008 SC 1170 , in which para Nos. 12 and 13 has held as under:- "12. The application for attachment before judgment was filed by the plaintiff so as to protect his interest in the event the suit is decreed. The court exercises, in such a situation, jurisdiction under Order XXXVIII, Rule 5 of the Code of Civil Procedure. The Division Bench of the High Court merely directed the appellants herein to furnish security within the time specified thereunder. It was directed that only on their failure to do so, an order of attachment of the 2nd Item on the schedule to the petition shall be issued. 13. Appellants, in our opinion, are not seriously prejudiced thereby. The court while exercising its jurisdiction under Order XXXVIII, Rule 5 of the Code of Civil Procedure is required to form a prima facie opinion at that stage. It need not go into the correctness or otherwise of all the contentions raised by the parties. A cheque had been issued in the name of the firm. The appellants are partners thereof. A pronote had been executed by a partner of the firm. Thus even under the Partnership Act prima facie the plaintiff could enforce his claim not only as against the firm but also as against its partners." 6. Heard counsel for the parties. 7. After perusal of the ordered passed by the trial court in my considered opinion there is no illegality in the order passed by the trial court for the reasons firstly the trial court has taken into consideration, the bona fides of the appellant-defendant as mentioned in para 5 of the order which shows that the appellant has sold the properties mentioned in the application just after service of summons of the suit; secondly no prejudice would be cause to the appellant in case, he submits appropriate security of Rs. 5,50,000/- as directed by the trial court; thirdly the trial court framed prima facie opinion in favour of the plaintiff while passing of the order. 8. 5,50,000/- as directed by the trial court; thirdly the trial court framed prima facie opinion in favour of the plaintiff while passing of the order. 8. In view of the judgment passed by the Hon'ble Supreme Court (supra) the view taken by the trial court is a possible view. In that view of the matter, the appeal filed by the appellant as well as stay application stand dismissed.