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2018 DIGILAW 69 (GAU)

Santosh Devi Sharma v. Rejibul Haque

2018-01-12

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. Heard Mr. B.J. Mukherjee, learned counsel for the petitioner. Also heard Mr. S.K. Saharia, learned counsel appearing for the respondents. 2. The petitioner had filed a Money Suit on 14.6.2016 in the court of the learned Civil Judge at Bongaigaon for recovery of Rs. 24,00,000/- as compensation with interest for breach of contract. 3. The plaintiff had filed a petition under Order 38 Rule 5 read with Section 151 CPC for a direction to the defendants to furnish security of a sum of Rs. 50,00,000/- within the time frame as may be specified by the court and to pass an order of attachment of the property shown in the schedule of the petition if the defendants failed to comply with the directions to furnish security. The petition was registered as Misc. Case No. 34/2016. 4. The schedule of the property is a plot of land measuring 1 katha 9 lechas along with existing structures covered by Dag No. 36 of PP No. 403 situated at Bongaigaon town standing in the name of Nur Islam Haque, who is the deceased father of the defendants. 5. In the petition, averments are made that the property shown in the schedule of the petition is the only property which is available to cover the amount of decree that may be passed and that the defendants are trying to dispose of/alienate the said property with the intention to delay/obstruct the execution of the decree and for that purpose, they are contacting different persons. 6. A perusal of the impugned order goes to show that the defendants had sold a plot of land measuring 8 lechas which is part of the land shown in the schedule to the petition to one Dilip Ray. 7. Mr. Mukherjee has submitted that the sale deed was executed on 24.6.2016, barely 10 days after the suit was filed. 8. The learned trial court dismissed the petition filed by the petitioner primarily on the ground that the petitioner had failed to show that the defendants intend to dispose of the suit property with the intention to defraud the petitioner and that mere fact of filing of the suit would not put shackles on the defendants to use the property in the manner as they want so long as the same was not with the object of getting an edge over the plaintiff. The learned trial court also held that the petitioner failed to show that the rest of the property was also intended to be disposed of and on the other hand, the petitioner had mentioned about raising of structures for commercial purpose thereon. 9. So far as raising of structure part is concerned, the same is a perverse observation as in the petition, there is not even a whisper regarding raising of any structure by the defendants. 10. It is to be noted that in the petition itself, the petitioner had indicated that the property in question was sought to be sold off to different persons. The assertion of the petitioner came to be proved as, on 24.6.2016, part of the property shown in the schedule was disposed of. 11. The learned trial court may be justified in opining that it is for the owners to put the property to its best use in their perception. However, it is not an absolute proposition. 12. A thorough reading of the written objection filed by the defendants goes to show that the defendants did not deny the plea raised by the petitioner that they were trying to dispose of the property. No statement is made by the defendants that they do not intend to dispose of the property. Such statements would have allayed the apprehension of the petitioners. They did not indicate in the written objection anything to demonstrate that the apprehension harboured by the petitioner is misplaced. Whether there is any intent on the part of the defendant to frustrate the decree to be passed is to be ascertained from the stand taken by the defendant, which indicate the mindset and the attitude of the person. As long as he does not commit to the court that he does not intend to sell the property, the scale tilts in favour of the petitioner. 13. Having regard to the materials on record, I am of the considered opinion that the petitioner had made out a case for a direction to the respondents/defendants to furnish security and to that extent, the learned trial court failed to exercise its jurisdiction vested on it by law. 14. In that view of the matter, I consider it to be a fit case to exercise my jurisdiction under Article 227 of the Constitution of India. Accordingly, the impugned order dated 28.3.2017 is set aside. 15. 14. In that view of the matter, I consider it to be a fit case to exercise my jurisdiction under Article 227 of the Constitution of India. Accordingly, the impugned order dated 28.3.2017 is set aside. 15. The defendant will furnish security to the tune of Rs. 25,00,000/- within a period of three months from today failing which the property, which is indicated in the schedule to the petition, minus the property already sold, shall stand attached. 16. No cost.