Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.96 OF 2020
CNR NO.MHCCO1-000254-2020
IN
COMMERCIAL SUIT NO.161 OF 2019
Smt.Laxmi Rama Gadge ..Plaintif
Versus
Shri.Balkrishna Pralad Bhosale ..Defendant
Ld. advocate Mr.Patil for the plaintif
Ld. advocate Sana Raees Khan for defendant
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 21st JANUARY, 2020
ORAL ORDER
1. This notice of motion interalia tendered by the
plaintif u/o XXXVIII Rule 5(3) of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'CPC') for
directing the defendant to furnish security to the
satisfaction of Rs.4,46,000/- being the amount claimed by
the plaintif in the present suit and failure to comply the
same, the Registrar be directed to issue warrant of
attachment before judgment u/o XXXVIII rule 5(3) of CPC
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and also warrant of attachment before the judgment u/o
XXI Rule 46 of CPC by attaching all the amount which
was lying with the Accountant/Manager, BEST Colaba
Aagar, Power House, Best Bhavan Colaba Mumbai and all
other dues i.e. G.P.F. etc.
2. Heard.
3. Ld. Counsel for the plaintif argued that plaintif
has fled the suit for recovery for a sum of Rs.4,46,000/-.
The defendant is scheduled to retire on 01/04/2020 from
the service of BEST. BEST will pay entire retirement
benefts to defendant on 01/04/2020 because defendant
will retire on superannuation. The defendant will run with
all his retirement benefts alongwith G.P.fund, provident
fund and all other dues. After retirement, the defendant
is going to settle at his native place. He is not having
property in Mumbai and Maharashtra except the amount
pending with BEST. The defendant is not having any
movable or immovable property and it would be difcult
to recover from him the amount of Rs.4,46,000/-. Under
these circumstances, the plaintif prayed for order u/o.
XXXVIII Rule 5(3) of CPC.
3. The defendant combated the claim of the
plaintif. It is the case of the defendant that the
attachment of the dues which the defendant is entitled,
cannot be the subject matter of the attachment as per
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Sec.60 of CPC. If the defendant is directed to deposit the
amount of loan of Rs.4,46,000/- and his retirement
benefts are attached, it would be amount decree the
claim. The contents u/o. XXXVIII rule 5(3) of CPC are not
fulflled and therefore the relief cannot be granted.
4. The Learned counsel for the plaintif argued
that it would be difcult to execute decree if the
retirement benefts of the defendants are not attached. It
would be a paper decree. In support of his contentions,
he placed reliance upon the following judgments:-
(1) Rajendran and ors V/s Shankar Sundaram
and ors of Hon'ble Apex Court, AIR 2006
Supreme Court 1170
(2) Kashi Ram and ors V/s State of Rajasthan
of Hon'ble Apex Court, AIR 2008 Supreme
Court 1172
(3) Greater Cochin Development Authority,
Kadavanthara V/s Harrisons Malayam Ltd
of Hon'ble Kerala High Court, AIR 2002
KERALA 119
In the case of Greater Cochin(supra), the
Hon'ble Kerala High Court held that it is not in the
attachment before the judgment, the Court satisfaction
has to be arrived on the basis of material and that should
be refected in the order. I failed to understand how the
said proposition of law is applicable in the present matter.
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There is no quarrel that order should refect the
satisfaction of the Court arrived on the basis of the
material.
The Hon'ble Apex Court in the case of
Rajendran and ors (supra) held that the Court while
exercising, in such a situation, jurisdiction under order
XXXVIII rule 5 of the Code of Civil Procedure is required to
form a prima facie opinion at that stage. It need not go
into the correctness or otherwise of all the contentions
raised by the parties. There is no quarrel about the said
proposition of law.
5. The entire notice of motion does not discloses
that the defendant with intent to obstruct or delay the
execution of any decree which is likely to be passed
against him trying to dispose of whole or part of the
property. The stand of the plaintif is that after retirement
the defendant is going to settle at his native place. This
cannot be the apprehension in the mind of the plaintif
that the defendant would disposed of his whole or part of
his property to obstruct or delay the execution of any
decree that may be passed against him. Therefore the
notice of motion sufers from foundation as required u/o
XXXVIII Rule 5(3) of CPC. Mere a person settling at his
native place after his retirement cannot be a presumption
that he would disposed of whole or part of his property.
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6. Ld. Counsel for the defendant argued that as
per sec.60(g) of the Code of Civil Procedure, 1908,
stipends and gratuities allowed to pensioners of local
authority cannot be the subject matter of the attachment.
In order to support her contention, she placed reliance
upon the judgment of Hon'ble Madras High Court in the
case of Sathiyabama and ors V/s M.Palanisamy and ors.
I have considered the law laid down by the
Hon'ble Madras High Court. The issue before the Hon'ble
Madras High Court was amount of provident, leave salary,
gratuity etc. due to the deceased employee, can be
attached pending the suit for recovery of the money fled
against legal representative for the amount borrowed by
him. The Hon'ble Madras High Court held that the
amount payable for the gratuity or provident fund are not
attachable.
7. The retirement of the defendant is on
01/04/2020 on his superannuation. It cannot be said that
defendant getting retirement benefts is an act with intent
to execute or delay the decree that may be passed. As
held by the Hon'ble Madras High Court in the case of
Sathiyabama(supra) the post retirement benefts
cannot be the subject matter of attachment. Hence in
that background also the notice of motion needs no
consideration. Thus, the cumulative efect of above
discussion is that the notice of motion needs no
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consideration. Hence, it is expedient to pass following
order:-
ORDER
1. N/M No.96/2020 stands
rejected.
2. Cost in the cause.
3. N/M No.96/2020 is disposed of
accordingly.
(M.SALMAN AZMI)
Judge,
Date: 21/01/2020. City Civil Court,
Gr.Bombay
Dictated on: 21/01/2020
Transcribed on: 05/02/2020
Signed on: 07/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
11/02/2020 at 5.20 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
21.01.2020
Judgment and order signed by P.O. 07.02.2020
Judgment/order uploaded on 11.02.2020
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