Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 961/19 (Suit 1337/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.961/2019
(CNR No.MHCC010025402019)
IN
S .C. SUIT NO.1337/2019
Milagres Anand Castelino ..Plaintiff
V/s.
Kumar Pribhadas Jaising ..Defendant
Appearance:
Adv. Mr. Manoj Agiwal for plaintiff.
Adv. Ms Preeti Shah @ Adv. Mr. Irale for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 18.12.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by the plaintiff. It
is supported by affidavit of plaintiff Milagres Anand Castelino.
Defendant has opposed the Motion by filing affidavit in reply duly
verified by Kumar Pribhadas Jaising(defendant). The plaintiff has
submitted rejoinder to the defendant's affidavit in reply and thereafter,
defendant has submitted further affidavit as surrejoinder to the
affidavit filed by the plaintiff, along with documents consisting of ITR
return copy for the year 2019, AnnexureI. I have perused the same.
2. I have heard submission of Ld Counsels for both sides on
the Motion on 3.10.2019, 3.11.2019 and 14.11.2019.
3. Ld Counsel for the plaintiff submitted that, he has taken
out present Motion for seeking attachment before judgment under
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Order 38 (1) & (2) r/w. Rule 5 of CPC and directions against the
defendant for providing/ furnishing list of properties owned by him or
in his name or jointly in the name of another person and also prayed for
appointment of Court Receiver, High Court, Bombay in respect of assets
of partnership firm M/s. Larissa International, as per provisions of
Order 40 Rule 1 of CPC.
4. Ld.Counsel for the plaintiff specifically argued that, the
plaintiff has filed present suit for dissolution of partnership firm M/s.
Larissa International. It is the case of the plaintiff that, from the
partnership firm, she is to receive Rs.38,92,662/ as per realization
account, copy of which is filed with the plaint vide Ex.K and other
liabilities of partnership firm in the sum of Rs.1,40,24,695/, which has
to be paid by realizing the amount receivable from debtors and an
amount of Rs.1,07,21,405/ from the defendant. It is submitted that,
the suit will take its time for decision after trial, hence it is just and
necessary in the interest of justice to appoint a Court Receiver in respect
of the assets of the partnership firm under Order 40 Rule 1 of CPC. It is
also submitted that, if the relief claimed in the Motion regarding
attachment before suit judgment is not granted, the very purpose of
filing the suit will be defeated as the defendant may leave India and
thus, frustrate proceedings in this suit and execution of the decree
which will be eventually passed in the suit. Ld Counsel for the plaintiff
vehemently argued that, it is apprehended that the defendant may
alienate his property or that he has already alienated some of his
property, therefore urgent orders are necessary otherwise the suit
proceedings and execution of decree will be frustrated.
5. Ld Counsel for the defendant has strongly opposed the
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Motion and relied on the affidavit in reply and vehemently contended
that, present Motion, as framed and filed, is itself not maintainable and
it amounts to abuse of process of law. It is misconceived and not
maintainable because necessary conditions for passing order under
Order 38 Rule 5 or Order 40 of CPC are not made out. The plaintiff is
guilty of suppressing material facts from the court i.e. “suppressio veri,
suggestio falsi”. The defendant has given details of the transactions in
respect of the partnership firm, the amount of remuneration which he is
entitled to get @ Rs.2,40,000/ p.a. from 1.4.2004 with 10% increase
every year. He has estimated basic remuneration to which he is entitled
to extent of the amount of Rs.65,33,996/ vide Ex.1. The defendant has
narrated how he has done everything for bringing plaintiff's name on
record in place of her late husband Anand B. Catelino as partner of M/s.
Jamnagar Agri Mills and assistance provided by him in many
transactions. He has also narrated about heavy loss suffered by
partnership firm M/s. Larissa International due to global melt down and
crash of American Bank. In paras 13, 14 and 17 of the reply, the
defendant has denied correctness of realization amount annexed with
Ex.K to the plaint and submitted that, it does not reflect sum of
Rs.65,33,996/, which is due to the defendant by way of realization
from the firm. Ld. Counsel for the defendant specifically argued that, it
is to the knowledge of the plaintiff that the defendant is not having
assets or properties to his name and statements and submissions made
in para 22 of the plaint are not correct but only made to obtain orders
from the court.
6. Ld. Counsel for the plaintiff has filed additional affidavit/
rejoinder to the affidavit of the defendant as counter submission and
submitted that, taking out of the present Motion amounts of abuse of
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process of law. In para 6 of the rejoinder, Ld. Counsel has made
reference to the income tax return of M/s. Larissa International by
email dated 21.8.2018 received from the defendant and in that regard,
the plaintiff had on the advise of his advocate sought financial
statement from Chartered Accountant Mr. Sharad Gokani. After the
plaintiff had obtained concurrence from his advocate, he had consented
C.A. Mr Sharad Gokani to file income tax return based on the financial
statement sent by him. It is also submitted that the defendant is fully
aware about the audited financial statement of the partnership firm
M/s. Larissa International.
7. The plaintiff has alleged that, the defendant is making false
statement on oath and he is required to be tried for perjury. The C.A has
not supplied the plaintiff copy of audited financial statement and
audited report probably on the instructions of the defendant and said
conduct of the C.A cannot be said as professional one. Ld Counsel for
the plaintiff has referred to para 10 of the rejoinder and submitted that,
the plaintiff is relying on the realization account statement at Ex.K and
financial statement at Ex.L filed with the plaint and that it is proved.
According to the same, an amount of Rs.1,07,21,045/ is payable by the
defendant to the partnership firm. The plaintiff has produced the same
on record. Details of the properties and assets of the defendant as on
March, 2016 is given in the table. The Ld Counsel for the plaintiff has
therefore prayed that, on this background, it is necessary to direct the
defendant to disclose his assets as prayed in the Motion. Ld. Counsel for
the plaintiff has submitted that, prima facie, balance of convenience is
in favour of the plaintiff. Hence, Motion deserves to be made absolute.
8. Ld. Counsel for the defendant, in reply, has relied on the
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affidavit in surrejoinder and has denied all the adverse allegations. In
paras 8,11 and 12 of the surrejoinder the defendant has again repeated
the denial and submitted that, unless appropriate accounts are settled
reflecting the amount receivable by the defendant from the partnership
firm or other entity of which the plaintiff is sole proprietor/ director, it
is submitted that, there is no question entering into a formal Deed of
Dissolution based on the one sided draft furnished by the plaintiff as
realization account at Exh.K filed with the plaint is disputed by the
defendant. It is submitted that, the defendant has denied correctness of
the details given by the plaintiff in respect of his properties and assets,
given in the table and submitted that, there is no substance in the
Motion and it is liable to be dismissed with costs.
9. I have gone through the pleadings of the parties in the
Motion as well as in the affidavit in reply, rejoinder as well as sur
rejoinder. I have also gone through the documents filed by Ld. Counsels
for both sides and the authorities submitted and relied upon by Ld
Counsel for the plaintiff. I have also perused the copy of letter given by
Ld. Counsel for the plaintiff to Chief Manager, HDFC Bank Ltd dated
17.7.2019 and reply received from the HDFC Bank dated 22.7.2019. Ld
Counsel for the plaintiff had given FD No. and the amount of FD and
had sought from the bank details of the FD and whether the same are
held by the defendant individually or jointly with Mrs Sunita Jaising
and whether the FDs were terminated prematurely on or after
20.4.2019. The bank had replied the said letter informing the Counsel
for the plaintiff that, the bank was unable to give details of their
customers on the ground of confidentiality norms and unless there is
specific order from the court or competent authority, the bank was
unable to comply with his request.
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10. Ld Counsel for the plaintiff has relied upon decisions of
Hon'ble High Court and Supreme Court, these are as under:
1. Y. Kesavulu V/s. T. Kalavathi (2016(6) ALD
286 (Andhra Pradesh High Court)
2. Premraj Mundra V/s. Md. Maneck Gazi and
Ors (MANU/WB/0033/1951) = (AIR 1951
Cal 156) (Calcutta High Court).
3. Raman Tech. and PROcess Engg. Co. and
Ors. V/s. Solanki Traders (2008(6) ALT 18
(SC).
11. I have gone through the above authorities and find that, in
the first authority, Hon'ble Andra Pradesh High Court has held that, on
showing sufficient cause as required under law, attachment before
judgment can be made and once prima facie case was made out for
attachment before judgment, such interim order cannot be called back
upon defendant giving an undertaking on affidavit.
In the second authority Hon'ble Calcutta High Court has
observed that, once order for attachment under Order 38 Rule 5 and 6
of CPC is made and respondent is directed to furnish security
proportionate to the claim of the appellant such interim order is liable
to be continued and made effective during pendency of the suit.
In the last authority, Hon'ble Apex Court has observed that,
power of the civil court under Order 38 Rule 5 of CPC is 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 Rules. The plaintiff should show prima facie that his
claim is bonafide and valid and also should satisfy the court that the
defendant is about to remove or dispose of the whole or any part of the
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property during pendency of suit with an intention to obstruct or delay
the execution of decree that may be passed.
12. Considering the above authorities and ratio laid down by
Hon'ble Apex Court, it is clear that, the burden is heavily placed on the
plaintiff to show and satisfy the court that the defendant is about to
leave jurisdiction of the court or remove or dispose of whole or any part
of his property during pendency of suit with an intention to obstruct or
delay execution of the decree that may likely to be passed in the suit.
13. From the rival contentions of the parties in the pleading
and from the documents filed on record, it appears that, accounts of
partnership firm M/s. Larissa International have not been settled,
finalized and acceptable to the both parties, there are some disputed
facts which the plaintiff is required to prove during the trial of the case.
There are allegations from the plaintiff that, the defendant has made
false statement before the court on oath and is liable for perjury. On the
other hand, the defendant has vehemently denied the said allegation.
14. I find that the plaintiff has not been able to bring on record
the facts and circumstances to show that the defendant is about to leave
jurisdiction of the court or is about to dispose of whole or any part of
his property during pendency of suit. No doubt, the plaintiff has
apprehension in this regard in view of facts and circumstances of the
case. But, in my opinion, mere apprehension of the plaintiff is not
sufficient to make out prima facie case and balance of convenience in
favour of the plaintiff for allowing the application under Order 38 Rule
5 of CPC and for appointment of court receiver under Order 40 of CPC
under the circumstances.
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15. Hence, I have come to the conclusion that, necessary
ingredients have not been made out by the plaintiff for attachment
before judgment passed or attachment or appoint of court received, as
prayed in the Motion.
Hence, I proceed to pass following order :
ORDER
1. Notice of Motion No.961/2019 is hereby dismissed
and disposed of accordingly.
2. Suit to proceed further for filing of W.S. by defendant
within extended time and filing of reply affidavit by
the defendant to Notice of Motion No.4476/2019.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 18.12.2019 Gr. Bombay (C.R.03)
Dictated on :18.12.2019
Transcribed on : 19.12.2019
Draft given to HHJ on 19.12.2019
Signed by HHJ on :23.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :24.12.2019
TIME: 12.42 pm. (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge (C.R. 03)
Date of pronouncement of Judgment/ Order 18.12.2019
Judgment/ order signed by P.O on 23.12.2019
Judgment/ order uploaded on 24.12.2019
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