Interim Order 9

Order Details: COPY OF ORDER
Pdf Text: CS DJ No. 242/2023 1 of 5
IN THE COURT OF SH. KISHOR KUMAR, DISTRICT
JUDGE-04, NORTH DISTRICT, ROHINI COURTS,
DELHI.
CS No. 242/2023
CNR No: DLNT01-003332-2023
Raj Kumar Goel
…… Plaintiff
VERSUS
Ajay Gupta
.......Defendants
Order/05.11.2024
1. Vide this order I shall dispose of the application under
Order XXXVIII Rule 5 CPC, filed on behalf of the plaintiff
for attachment before judgment.
2. The plaintiff has filed the present suit for recovery of
Rs.1,95,41,238/- inter alia on the ground that plaintiff paid a
sum of Rs.80,00,000/- to the defendant as friendly loan on
28.04.2015 and defendant also confirmed the total due and
payable at the end of financial year 2015-16 and further
acknowledged the amount payable by him at the end of
financial year 2016-17. It is further stated that defendant
transferred the property bearing no.138B, Old Gupta Colony,
Delhi-110009 in the name of the plaintiff and signed the
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CS DJ No. 242/2023 2 of 5
confirmation of accounts on 02.12.2021 and promised to pay
the outstanding amount but failed to pay the same.
3. By way of present application, it is contended by the
plaintiff that during 2nd week of February 2024, the plaintiff
came to know from some near relatives and common friends
that the defendant is contacting the local property dealers and
is planning to sell off his property bearing No.7A, land
measuring 288 sq yds, out of Khasra No.13/4 and 5, 7/17/2
and 24/2, situated in the area of Village Samepur, Delhi. It is
prayed that the said property of the defendant be attached or
in alternative to restrain the defendant from selling, alienating
or disposing off the same.
4. In reply to the present application, the defendant has
denied the contentions raised in the present application to be
false and incorrect and submitted that present application
deserves to be dismissed being devoid of merits.
5. I have heard the learned counsels for the parties and
have carefully gone through the material available on record.
6. The plaintiff has filed the present suit for recovery of
Rs.1,95,41,238/- being outstanding amount towards the
defendant after making adjustment of sale consideration of
aforesaid property.
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CS DJ No. 242/2023 3 of 5
7. In
Raman Tech. & Process Engg. Co. & Anr. Vs.
Solanki Traders,
AIR ONLINE 2007 SC 80, Hon’ble
Supreme Court has observed that “the Scheme of Order
XXXVIII and the use of the words ‘to obstruct or delay the
execution of any decree that maybe 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 XXXVIII 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. The power under
Order XXXVIII Rule 5 CPC is drastic and extraordinary
power. Such power should not be exercised mechanically or
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merely on the asking.”
8. Further, in
Vandana Verma vs. Roop Singh & Ors.,
2022 LiveLaw (Del) 252, Hon’ble Delhi High Court has held
that “Suit Property can't be attached mechanically or merely
for asking of plaintiff…...Provisions of Order XXXVIII Rule
5 of the CPC have to be used sparingly and that the plaintiff
has to satisfy the Court that the defendant is seeking to
remove or dispose of whole or part of his property with the
intention of obstructing or delaying the execution of the
decree that may be passed against him. Purpose of Order
XXXVIII Rule 5 is not to convert an unsecured debt into a
secured debt. Any attempt by a plaintiff to utilise the
provisions of Order XXXVIII Rule 5 as a leverage for
coercing the defendant to settle the suit claim should be
discouraged.”
9. The main ground taken by the plaintiff for attachment
of property as mentioned in the instant application is that he
came to know that defendant is trying to dispose of the said
property. However, as per the written statement filed on
behalf of the defendant, the plaintiff has concealed the
material facts and have also concealed the payments received
by him in cash. Furthermore, in the present application,
plaintiff has not relied upon any documentary proof and
based the present application only on his apprehension. In
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CS DJ No. 242/2023 5 of 5
these circumstances, it cannot be said that plaintiff has
established on record that defendant is attempting to remove
or dispose of the alleged amount in her bank account. It is
pertinent to mention here that issues in the present case have
already been framed and a specific issue with regard to the
recovery as prayed in the plaint has been framed. The
plaintiff would get sufficient opportunity to lead his evidence
and also to cross examine defendant witnesses on all material
points.
10. In view of the pleadings on record, the discussion
hereinabove and the case laws discussed i.e.
Raman Tech. &
Process Engg. Co. & Anr.(supra) and
Vandana Verma(supra),
the present application under Order XXXVIII Rule 5 CPC,
moved on behalf of the plaintiff, is hereby dismissed lacking
merits.
Announced in Open Court
On Dated 05.11.2024.
(Kishor Kumar)
DJ-04, North, Rohini Courts,
Delhi/05.11.2024
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