B.Mohan vs S.Ajiba

Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India, against the order dated 02.12.2013 made in I.A.No.821 of 2013 in O.S.No.199 of 2013 on the file of the Sub-Court, Udumalpet.

For Petitioner : Mr.N.Umapathi

O R D E R

Civil Revision Petition is filed against the order dated 12.12.2013 made in I.A.No.821 of 2013 in O.S.No.199 of 2013 on the file of the Sub-Court, Udumalpet.

2.At the time of admission, argument of the learned counsel for the revision petitioner is heard in length.

3.The respondent herein as a plaintiff filed a suit in O.S.No.199 of 2013 for recovery of money due on promissory note. At the time of filing suit, the plaintiff has also filed an application in I.A.No.821 of 2013 for attachment before judgment. On 12.12.2013, the trial Court has ordered notice and also directed the respondent/revision petitioner to furnish the security for suit claim, failing which, it was specifically mentioned that attachment before judgment will be ordered and the matter was called on 17.01.2014. On 17.01.2014, it was held that notice was served to the respondent/revision petitioner herein and Advocate filed vakalat, but neither they file counter nor furnish security and hence, ordered attachment before judgment, against which, the present revision petition is preferred by the defendant/revision petitioner.

4.Learned counsel for the petitioner submitted that the trial Court has not observed any prima facie case, while passing the order for furnishing security. To substantiate the same, he relied upon the judgment reported in 2008 2 SCC 302 (Raman Tech. and Process Engineering Co. and another v. Solanki Traders) and prayed for allowing the revision petition.

5.Heard the learned counsel for the petitioner and perused the typed set of papers.

6.The respondent herein as a plaintiff filed a suit in O.S.No.199 of 2013 for recovery of money due on promissory note along with the application in I.A.No.821 of 2013 under Order 38 Rule 5 of C.P.C. for attachment before judgment. On 12.12.2013, the trial Court has passed the following order:

Heard. Notice to respondent, to furnish security for such amount or before 17.01.2014 failing which attachment before judgment will be ordered. Call on 17.01.2014. 

7.On 17.01.2014, the trial Court has passed the following order:

Notice served. Mr.A.R.H. filed vakalat for respondents security bond not furnished, attachment before judgment is ordered. Batta in two days counter by 14.02.2014. 

8.At this juncture, it is appropriate to consider the decision of the Apex Court relied upon by the learned counsel for the petitioner reported in 2008 2 SCC 302 (Raman Tech. and Process Engineering Co. and another v. Solanki Traders), wherein it was held that object of Order 38 Rule 5 of C.P.C. 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 following findings have been given in para-4 and 5, which are extracted as under:

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 realization 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 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. 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 utilize 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.

9.Now it would be appropriate to consider Order 38 Rule 5 of C.P.C., which runs as follows:

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.]

10.Considering the afore stated circumstances along with the decision, the trial court has not straight away ordered attachment before judgment and after perusing the affidavit and documents, directed the revision petitioner/respondent in I.A.No.821 of 2013 to furnish security for suit claim, failing which, attachment before judgment will be ordered. Even though the revision petitioner appeared through counsel, neither he filed his counter nor furnished security and he he has not given any undertaking not to alienate the property. In such circumstances, the trial Court has ordered attachment. In my considered opinion, to protect the interest of respondent/plaintiff, the trial Court made attachment before judgment and further held that batta in two days and counter by 14.02.2014. Therefore, the impugned order passed by the trial Court does not warrant any interference and I do not find any merits in the revision petition and accordingly, the revision petition is dismissed.

11.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, Miscellaneous Petition is closed.

16.07.2014

Internet:Yes kj

R.MALA,J.

kj To The Sub-Court, Udumalpet.

C.R.P(PD).No.2396 of 2014 and M.P.No.1 of 2014 16.07.2014