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2021 DIGILAW 373 (TS)

Anil Goyal v. Sanjay Gupta

2021-11-30

UJJAL BHUYAN

body2021
ORDER : UJJAL BHUYAN, J. C.R.P.No.1619 OF 2021 Heard learned counsel for the parties. 2. By filing this petition under Article 227 of the Constitution of India, petitioners have challenged legality and validity of the order dated 05.8.2021 passed by the III Additional Chief Judge, City Civil Court at Hyderabad in I.A.No.964 of 2020 in O.S.No.298 of 2020. 3. By the aforesaid order dated 05.8.2021, learned Court below has directed the petitioners to furnish security for a sum of Rs.50,00,000-00 on or before 31.8.2021, failing which it has been clarified that attachment of property at Sl.No.3 of the schedule would be ordered. 4. Petitioners are the defendants in the suit filed by the respondent as the plaintiff i.e. O.S.No.298 of 2020. The suit has been filed for a decree directing the defendants (petitioners herein) to jointly and severally pay an amount of Rs.3,00,00,000-00 towards marriage expenses, dowry, incidental expenses, damage to the reputation and goodwill of the family of the plaintiff as well as to award interest on the decretal amount from the date of filing of the suit till the date of realization. 5. Plaintiff (respondent herein) has stated in the plaint that his family and the family of his late brother – Raj Kumar Gupta formed a joint family. After the death of his brother Raj Kumar Gupta on 10.7.2009, he is discharging the role and duties of kartha of the joint family. As the kartha, he had looked after and bore the expenses of the marriage of his later brother’s daughter – Desika Gupta @ Desika Goel. 6. Through family friends a proposal was received for marriage of defendant No.3 who is the son of defendant Nos.1 and 2 with Desika Gupta. Finally the marriage was solemnized on 11.12.2019. 7. According to the plaintiff, defendants insisted that the marriage should be performed at a five-star hotel. Not only that, all the pre-marriage ceremonies should also be performed at five-star hotels. Accordingly one such ceremony was held at ITC Kakatiya hotel, Begumpet, Hyderabad, on 27.7.2019. The marriage was also performed at Taj Deccan, Banjara Hills, Hyderabad. In the meanwhile, on the pressure exerted by the defendants, plaintiff had to pay Rs.3,50,000-00 on 25.9.2020 as the first installment of membership of defendant No.3 in the prestigious Secunderabad club. Defendant No.2 also demanded Rs.25,00,000-00 so that she could offer gifts to the guests during the marriage celebrations. The marriage was also performed at Taj Deccan, Banjara Hills, Hyderabad. In the meanwhile, on the pressure exerted by the defendants, plaintiff had to pay Rs.3,50,000-00 on 25.9.2020 as the first installment of membership of defendant No.3 in the prestigious Secunderabad club. Defendant No.2 also demanded Rs.25,00,000-00 so that she could offer gifts to the guests during the marriage celebrations. Plaintiff was compelled to pay the said amount as he was under the belief that the same was necessary for the happiness of Desika. 8. During the marriage ceremony, defendants demanded jewelery in the form of silver coins, gold ornaments as well as diamond ornaments which were highly expensive. Plaintiff had to succumb to such demands of the defendants keeping in mind the wellbeing and marital happiness of his niece. 9. Post marriage, the relationship between Desika and defendant No.3 deteriorated to such an extent that cohabitation between them became an impossibility. Though they had gone for holiday, there was no consummation. On the other hand, defendant No.3 caused physical as well as mental harassment of Desika. In addition, further demand of dowry was made. After subjecting Desika and plaintiff to severe harassment, an amount of Rs.50,00,000-00 was extracted from the plaintiff. Plaintiff had to arrange the aforesaid amount in cash by borrowing from private sources at very high interest rate. Other demands were raised as well including gift of a car. It is in such circumstances that the suit was filed. It has been mentioned that defendant No.3 holds a Canadian passport and it is apprehended that if he faces a difficult situation he may abscond from the jurisdiction of the trial Court. 10. Defendants have filed a common written statement denying the above allegations. It is stated that the allegations made are false and baseless. On the contrary, it was the plaintiff and his family members who had played fraud on the defendants, whereby they got Desika married to defendant No.3. Several allegations have been made, whereafter it is stated that cohabitation between defendant No.3 and Desika is no longer possible and therefore defendant No.3 has filed a petition for annulment of marriage which has been registered as O.P.No.1190 of 2020. It is contended that the said divorce petition is pending before the Additional Family Judge, City Civil Court, Hyderabad. Several allegations have been made, whereafter it is stated that cohabitation between defendant No.3 and Desika is no longer possible and therefore defendant No.3 has filed a petition for annulment of marriage which has been registered as O.P.No.1190 of 2020. It is contended that the said divorce petition is pending before the Additional Family Judge, City Civil Court, Hyderabad. With a view to circumvent the proceedings of the aforesaid case that the suit has been instituted by the plaintiff. 11. It is further stated that Desika raised several illegal demands on defendant No.3 who was unable to meet such demands. Therefore, she lodged complaint before the police which has been registered as FIR No.519 of 2020 before the Women’s Police Station, Hyderabad. When the petitioners sought for quashing of the said FIR by filing Criminal Petition No.5017 of 2020 before this Court, the same was disposed of on 14.10.2020 by directing the police to follow the procedure laid down under Section 41A of the Code of Criminal Procedure, 1973 (Cr.P.C) as well as the guidelines laid by the Supreme Court in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 with a further direction to the police not to arrest defendant No.3 as well as his parents till completion of the investigation. 12. Contending that all the allegations made by the plaintiff are false and baseless, defendants have sought for dismissal of the suit. 13. Plaintiff filed an Interlocutory Application under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (CPC) for attachment of property before judgment. Plaintiff furnished a schedule of immovable properties belonging to the defendants. It was stated that defendants are highly affluent people. Defendant No.3 is a Canadian passport holder and is likely to abscond from the jurisdiction of the Court if adverse order is passed. Defendants were also likely to dispose of the properties to avoid paying any amount to the plaintiff. Defendants were in the process of creating third party rights and interest in the immovable properties and in the event of the suit being decreed in favour of the plaintiff, there is every possibility of the defendants avoiding and evading payment. The said Interlocutory Application was registered as I.A.No.964 of 2020. 14. Defendant No.1 filed counter affidavit to the said I.A for and on behalf of the other defendants as well. The said Interlocutory Application was registered as I.A.No.964 of 2020. 14. Defendant No.1 filed counter affidavit to the said I.A for and on behalf of the other defendants as well. While denying all contentions of the plaintiff, it was stated that there was no question of defendants disposing of any of their immoveable property, there not being a single shred of evidence filed by the plaintiff to substantiate that he had ever paid Rs.50,00,000/- as dowry or purchased Mini Cooper car. Therefore, defendants sought dismissal of the I.A. 15. By the order dated 05.8.2021, learned Court below partly allowed the I.A by directing petitioners (defendants) to furnish security for a sum of Rs.50,00,000-00 on or before 31.8.2021 failing which attachment of immovable property as per schedule would be ordered. 16. It is this order which is under impugnment in the present proceedings. 17. Learned counsel for the petitioners submits that the plaintiff failed to fulfill the pre-conditions for invocation of jurisdiction under Order 38 Rule 5 CPC. In the absence of any iota of evidence regarding demand and payment of dowry as well as related amounts, order for furnishing security is not justified. Further, learned Court below was not justified in passing the impunged order as what was alleged was demand and payment of dowry which is nothing but an illegal transaction, apart from being unaccounted. It is a settled proposition that Court would not come to the aid of a person who had made illegal transaction. In this connection, reference has been made to the decision of the Supreme Court in G.Pankajakshi Amma Vs. Mathai Mathew, (2004) 12 SCC 83 . Reliance has also been placed on a Supreme Court decision in Raman Tech. & Process Engg. Co. Vs. Solanki Traders, (2008) 2 SCC 302 . Finally he submits that learned Court below had completely misdirected itself while passing the impugned order. 18. On the other hand, learned counsel for the respondent – plaintiff has supported the impugned order. To buttress his contentions, he has placed reliance on the following decisions. i. Mamidala Suresh Babu Vs. Tirumalasetti Krishnamurthy, 2006 SCC OnLine Andhra Pradesh 402 ii. Rajendran Vs. Shankar Sundaram, (2008) 2 SCC 724 and iii. Y.Kesavulu Vs. T. Kalavathi, 2016 SCC OnLine Hyderabad 580 18.1 On the strength of the above, he seeks dismissal of the revision petition. 19. To buttress his contentions, he has placed reliance on the following decisions. i. Mamidala Suresh Babu Vs. Tirumalasetti Krishnamurthy, 2006 SCC OnLine Andhra Pradesh 402 ii. Rajendran Vs. Shankar Sundaram, (2008) 2 SCC 724 and iii. Y.Kesavulu Vs. T. Kalavathi, 2016 SCC OnLine Hyderabad 580 18.1 On the strength of the above, he seeks dismissal of the revision petition. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. 20. Order 38 deals with arrest and attachment before judgment. Rule 5 deals with a situation where the defendant may be called upon to furnish security for production of property. Since Rule 5 is relevant the same is extracted hereunder. 5. Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void. 21. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void. 21. From the above, what is evident is that as per sub-rule (1), where at any stage of a suit the Court is satisfied by affidavit or otherwise that the defendant with an intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant either to furnish security, to produce and place at the disposal of the Court, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish security. 22. Thus, as per sub-rule (1) the first requirement is that the Court must be satisfied either by affidavit or otherwise that the defendant is about to dispose of whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court with an intent to obstruct or delay execution of any decree that may be passed against him. If such satisfaction is reached, then Court may direct the defendant either to furnish security or to produce the property or to appear and show cause why he should not furnish security. 23. As per sub-rule (4), if an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void. 24. Though learned counsel for the petitioners has referred to G.Pankajakshi Amma (supra) to buttress the point that unaccounted transactions are illegal transactions and that no Court can come to the aid of a party in an illegal transaction, the said decision was passed in the context of a money suit and is not in a case where plaintiff alleged payment on account of dowry demand which itself is illegal and unlawful. However, without commenting on the merit of the case, it cannot be denied that demand and payment of dowry is an Indian reality. Such pernicious practice continues in various forms despite enactment of the Dowry Prohibition Act, 1961. This ugly reality cannot be simply brushed aside or swept under the carpet. 25. However, in Raman Tech. & Process Engg. (supra) Supreme Court examined the contours of Order 38 Rule 5 and held as follows: 4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. 5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. 5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment. 6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment. (See Premraj Mundra v. Md. Manech Gazi [ AIR 1951 Cal 156 ] for a clear summary of the principles.) 26. From the above, it is evident that the object of Order 38 Rule 5 CPC is to prevent the ends of justice being denied. Before exercising power under Order 38 Rule 5 CPC, the Court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. In other words, the Court should be satisfied that the plaintiff has a prima facie case. Before exercising power under Order 38 Rule 5 CPC, the Court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. In other words, the Court should be satisfied that the plaintiff has a prima facie case. Sounding a note of caution, Supreme Court observed that the power under Order 38 Rule 5 is a drastic and extraordinary power. Such a power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the rule. 27. Again in the case of Rajendran (supra), Supreme Court noticed that the Division Bench of the High Court had merely directed the appellants to furnish security with a further direction that only on their failure to do so, an order of attachment would be issued. Elaborating further, Supreme Court observed that the appellants were not seriously prejudiced by such direction. However, it was held that the Court, while exercising its jurisdiction under Order 38 Rule (1), is required to form a prima facie opinion at that stage though it need not go into the correctness or otherwise of all the contentions raised by the parties. 28. Having discussed the legal parameters as above, I may now advert to the impugned decision, relevant portion of which reads as under: 16. Prima facie case is established in the factual circumstances of the case that the respondent may avoid or delay the decree that may likely to be passed by transfer of the suit property. In case the petitioner succeeded in the suit he may not be in a position to enjoy the fruits of the decree, unless the property is protected without any alienation. 17. The merits of the case will be decided on adjudication of the disputes in the trial or recording proper evidence. The facts of sworn affidavit before this Court and circumstances of the case may de believed that this Court that there was apprehension of the petitioner that likely disposal of the petition schedule property to third parties and in case of it, the petitioner will be put to loss. The dispute is with regard to issuance of dowry and incurring expenses which always necessarily be by proper evidence. The dispute is with regard to issuance of dowry and incurring expenses which always necessarily be by proper evidence. No prejudice is caused to the respondent in case he was called upon to furnish security to show his bonafides as a condition precedent before order for attachment. 18. In the result, the petition is allowed in part directing the respondents to furnish the security for a sum of Rs.50,00,000/- on or before 31.8.2021, failing which the attachment of schedule at Serial No.3 ordered to be attached. 29. On the basis of the pleadings, learned Court below took the view that a prima facie case was established that defendants were likely to transfer the schedule property in order to avoid or delay execution of the decree that may be likely to be passed. Learned Court below further came to the conclusion that in case the plaintiff succeeded in the suit, he may not be in a position to enjoy the fruits of the decree unless the property is protected from alienation. The above prima facie view was taken on the basis of the pleadings and the facts and circumstances of the case which could be culled out therefrom. However, the learned Court below did not straightaway proceed with attachment but only directed the defendants to furnish security for a sum of Rs.50,00,000-00 with the clarification that in the event of failure to furnish security attachment of property would be ordered. 30. As observed by the Supreme Court in Rajendran (supra) in the opinion of the Court petitioners are not seriously prejudiced by such an order. As such, no interference is called for at this stage. 31. Therefore and in the light of the above, Court is not inclined to interfere with the impugned order dated 05.8.2021, that too, by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India which in any event should be sparingly invoked. 32. Consequently, Court finds no merit in this Civil Revision Petition. Revision Petition is accordingly dismissed. However, there shall be no order as to costs. 33. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall also stand dismissed.