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2018 DIGILAW 1081 (KER)

Galgotias University v. Malayala Manorama Company Limited

2018-12-21

ANNIE JOHN, K.HARILAL

body2018
JUDGMENT : K. HARILAL, J. 1. This appeal has been filed, challenging the order passed by the court below in I.A No.1933/2018 in I.A No.1631/2018 in O.S.No.84/2018 on the file of the Sub Court, Ernakulam. O.S No.84/2018 is a suit, filed by the respondent herein seeking a decree for recovery of an amount of Rs.79,86,000/- with interest from the appellants herein and defendants Nos.2 and 3. I.A No.1631/2018 was filed under Order 38 Rule 5 r/w Order 21 Rule 46 and Section 151 of the Code of Civil Procedure, to attach the bank account of the appellant herein. According to the averments in the petition, the respondent herein is the owner, printer, publisher of daily news paper and several magazines, which has got large circulation in the country. The respondent/ plaintiff has published advertisements in the inside front cover page of 'The Week' and the monthly 'Smart Life' magazine at the special rates agreed by the appellant/1st defendant herein and the advertisement was published in between the period from 13.04.2014 to 01.10.2014. After publishing the advertisements, the respondent sent invoices to the appellant requesting them to pay the amounts. Initially, the appellant had issued cheques for making part payments against the total outstanding amounts, but the same was dishonoured on presentation and at last, in furtherance of partial discharge of the said liability, the appellant had issued cheque for an amount of Rs.13,23,000/-, which was encashed on presentation and thereafter the balance amounts due to the respondent is Rs.79,86,000/-. But the appellant is deliberately evading the payments and they have not made any payments, despite repeated demands. Now it is revealed that the appellants are trying to remove the amounts collected from the account, which is being maintained with Oriental Bank of Commerce, Newazpur Branch, Uttar Pradesh. The appellants are removing the amounts, with a view to defeat the execution of the decree that may be passed against him. According to the respondent the appellant has no other source except the amount in the said account. Hence the respondent prayed for issuing an order directing the appellant to furnish security for the amount claimed in the suit and in the meanwhile for issuing an interim attachment order attaching the amount laying in the account maintained by the appellant in the Oriental Bank of Commerce, Newazpur Branch, Uttar Pradesh in the name of the appellant. 2. Hence the respondent prayed for issuing an order directing the appellant to furnish security for the amount claimed in the suit and in the meanwhile for issuing an interim attachment order attaching the amount laying in the account maintained by the appellant in the Oriental Bank of Commerce, Newazpur Branch, Uttar Pradesh in the name of the appellant. 2. The appellant herein has filed a counter affidavit denying the respondent's claim for Rs.79,86,000/- against the appellant. According to them, no amount was due to the respondent in the account for publishing advertisement of the appellant University and they have already paid the amounts due to the respondent for the advertisements published by them. It is also contended that the claim for money is barred by limitation. They denied the allegation that with an intention to obstruct or delay the decree that may be passed against the appellants, they are trying to withdraw the amounts from the bank account. According to the appellants, the respondent has failed to establish a prima facie case and the averments in the affidavit filed along with the petition plaintiff was no prima facie case and even if, the allegations are accepted at its entirety, claim is barred by limitation. However, it is contended that the averments in the counter affidavit filed along with the petition are not in conformity with the statutory requirements under Order 38 Rule 5 of CPC. It is also contended that, though the findings are based on documents produced by the respondents, none of the documents are seen referred to in the findings and thereby, the findings have no basis at all. In short, according to the learned counsel for the appellant, the findings are not supported by any documents. are not in conformity with statutory requirements under Order 38 Rule 5 of CPC. Thus, the appellants have strongly denied the claim for recovery of amounts and the prayer for attachment of their bank account, before Judgment. 3. On the rival pleadings and based on the documents produced by the plaintiff, the court below rendered the impugned order, whereby, the interim order of attachment was made absolute. The legality and correctness of the findings, whereby the court below has made the interim of attachment absolute, are assailed in this appeal. 4. 3. On the rival pleadings and based on the documents produced by the plaintiff, the court below rendered the impugned order, whereby, the interim order of attachment was made absolute. The legality and correctness of the findings, whereby the court below has made the interim of attachment absolute, are assailed in this appeal. 4. The learned counsel for the appellant advanced arguments contending that the plaintiff was no prima facie case and even if, the allegations are accepted at its entirety, claim is barred by limitation. However, it is contended that the averments in the counter affidavit filed along with the petition are not in conformity with the statutory requirements under Order 38 Rule 5 of CPC. It is also contended that, though the findings are based on documents produced by the respondents, none of the documents are seen referred to in the findings and thereby, the findings have no basis at all. In short, according to the learned counsel for the appellant, the findings are not supported by any documents. 5. On the other hand, the learned counsel for the respondents advanced arguments, justifying the findings, whereby the court below made the interim order of attachment FAO. No. 212 of 2018 absolute. According to the respondent, the documents produced by them, would establish a strong prima facie case. The suit is not barred by limitation as the period of limitation would begin from the date last payment on 30.06.2015 only. 6. We have meticulously gone through the impugned order under challenge. Prima facie we are not satisfied with a manner, in which this judgment has been rendered by the court below. Though, the claim is for a huge amount and serious contentions have been raised, the court below has not specifically adverted to the documents produced along with the plaint, to arrive at a finding that the plaintiff has succeeded in establishing a prima facie case and the claim for recovery of amount from the appellant is not barred by limitation. More specifically, the findings on prima facie case and the question of limitation, are based on documents, which are neither referred to in the body of the judgment, nor shown in list of exhibits. The court below should have evaluated the rival pleas on the basis of the documents produced and referred to in evidence by the parties. More specifically, the findings on prima facie case and the question of limitation, are based on documents, which are neither referred to in the body of the judgment, nor shown in list of exhibits. The court below should have evaluated the rival pleas on the basis of the documents produced and referred to in evidence by the parties. More importantly, we find that none of the documents is seen enumerated as exhibits in the impugned order. The court below ought to have remembered that the order to be passed is an appealable order and according to Rule 186 of the Civil Rules of practice, the final order in matters other than suits or appeals including contested interlocutory applications shall be drawn up in the same manner as the judgment in a suit. It follows that according to Rule 181 of the Civil Rules of practice a list of exhibits filed shall be annexed to the judgment. So no orders in a contested interlocutory application can be passed without a list of exhibits showing the documents produced by both parties. In the above view, we find that the findings stand without reference to any supporting material. 7. Therefore, we set aside the impugned order under challenge and the interlocutory application will stand remitted to the court below. We direct the court below to pass orders afresh, with reference to the documents, on which the court below places reliance so as to arrive at a prima facie case. The Order shall be passed afresh in view of the observations made above, at the earliest, at any rate, within a period of two weeks from the date of receipt of a copy of this order. It is made clear that the interim order passed earlier will stand in force as such. Since the interlocutory applications stand remitted to the court below, both parties are given a further opportunity to produce fresh materials, if any. I.A No.1 and 2/2018 will stand closed