Interim Order 1

Order Details: Order below exhibit
Pdf Text: CNR NO.MHCC01-004581-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.2
IN
SUIT NO.1182 OF 2020
Royal World Tours Pvt. Ltd. ] ...Plaintiffs.
V/s.
Seven Seaz Vacations Pvt.Ltd. & Anr. ] ...Defendants.
Appearances:
Ld. Adv. P. N. Kulkarni for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 7th November, 2020
ORAL ORDER
1. Plaintiff filed this Application for attachment before
Judgment.
2. In brief, it is contention of the plaintiff that the suit is filed
for the recovery of Rs.2,24,000/- from defendants. Plaintiff has
apprehension that defendant No.1 may dispose off its premises situated
at A-401, Wing A, Universal Business Park, Chandivali Farm Road, Off.
Saki Vihar Road, Andheri East, Mumbai – 400 072 to delay and defeat
claim of the plaintiffs. Therefore, the said property be attached before
Judgment.
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.. 2 .. O.B.Exh.02 in Suit 1182-2020
2. Perused affidavit in support of application Exh.2. Affidavit
is dated 22.10.2020 filed in support of application Exh.2. I also perused
additional affidavit of Shashank Vijay Vaidya dated 29.10.2020 filed in
support of application Exh.2. It is mentioned in the affidavit dated
22.10.2020 that the defendant may dispose off the said property to
delay and defeat the claim of the plaintiffs. Therefore, the said property
be attached before Judgment. It is mentioned in affidavit dated
29.10.2020 Exh.3 that Mr. Shashank Vijay Vaidya was in need of
business premises on leave and license basis. He went to Andheri on
20.10.2020 to see the said premises of defendant No.1. He contacted
Mr. Gunith Sethi of defendant No.1 and came to know that defendant
No.1 want to dispose off the said premises by sale urgently.
3. Perused affidavit of service Exh.4. It is filed by plaintiff
stating therein that she served copies of plaint, application for
attachment before Judgment and affidavit in support of application for
attachment before Judgment to defendant on 24.10.2020 through Blue
Dart Courier. Defendant did not appear in the matter.
4. Perused Plaint. It is mentioned in the plaint that plaintiff is
tours Private Limited Company. It deals with booking, organizing
conducting international and domestic tours of religious as well as
leisure nature. Plaintiff take tickets and land travel and accommodation
services from different agents and sub-agents to fulfil client’s travel
requirements.
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5. Defendant no.1 is a Company. It is having registered office
at 801/3, Second floor, Sukhdev Market, Bhishm Pithamah Marg, Kolta
Mubarakpur, New Delhi, Delhi – 110049. It has branch in Mumbai
operating under the name “Flywidus.com” situated at Andheri (East),
Mumbai – 400 072.
6. Defendant No.2 is registered agent through whom
defendant No.1 book air tickets and takes other services as and when
required by defendant No.1. Defendant No.2 has office at Opp. CSMT
Railway Station, Fort, Mumbai – 400 001.
7. During the course of business plaintiff paid Rs.5,68,125/-
to defendant No.1. Defendant No.1 is subagent of defendant No.2.
Defendant No.2 paid said amount to Qatar Airways. The plaintiff paid
said amount to defendant No.1 on 04.01.2020 to book air tickets for
travel date 12.05.2020. Defendant No.1 issued invoice dated
07.01.2020 in the name of plaintiff.
8. Qatar Airways cancelled the flight for the said travel dated
12.05.2020 to Rome and Italy due to Covid-19 Pandemic. An Executive
of Qatar Airways informed telephonically to the plaintiff that the
complete amount of Rs.5,68,125/- was returned to the defendant No.2.
Defendant No.2 telephonically informed to the defendant No.2 that
already refunded the said amount in full to defendant No.1. The
defendant No.1 refunded Rs.2,00,000/- on 20.04.2020 and
Rs.1,68,125/- on 22.06.2020 to plaintiff. The defendant No.2 informed
to the plaintiff that an amount of Rs.2,00,000/- was to be paid by
defendant No.2 to the defendant No.1.
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9. Plaintiff came to know from the office of defendant No.1
that full amount of Rs.5,68,125/- is already received in full by
defendant No.1 from defendant No.2.
10. Plaintiff sent legal notice to defendant No.1 by e-mail
through advocate letter dated 03.07.2020 and demanded Rs.2,00,000/-
from defendant No.1 with interest but defendant No.1 did not give any
response. Therefore, defendant No.1 is liable to pay said amount of
Rs.2,00,000/- with interest at the rate of Rs.21% per annum which
comes to Rs.2,24,000/- for seven months.
11. Perused Order 38 of the Code of Civil Procedure. It deals
with arrest and attachment before Judgment. As per Order 38 Rule 5
Sub Rule 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
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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.”
12. The object of invoking Order 38 Rule 5 of the Code of Civil
Procedure is to safeguard the interest of the plaintiff, if the Court is
satisfied that ultimately when a decree is going to be obtained by the
plaintiff, he may not be able to realize fruits of the decree. The powers
under Order 38 Rule 5 of the Code of Civil Procedure is drastic and
extra ordinary.
13. Attachment before Judgment can be ordered when the
Court is satisfied that there is a reasonable chance of a decree being
passed in the suit against the defendant. It means the Court should
satisfy that the plaintiff has a prima facie case. Plaintiff has to establish
that the defendant is attempting to remove or dispose of his assets with
the intention of defeating the decree that may be passed.
14. Except bare words of the plaintiff nothing is on record to
show that defendant No.1 received Rs.5,68,125/- in full from defendant
No.2. It is specifically averred in para No.6 of the plaint that plaintiff
on several occasions called defendant No.1 to pay the said amount of
Rs.2,00,000/- but defendant No.1 refused to pay the said amount
contending that defendant No.2 has not given refund to the defendant
No.1.
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15. Perused affidavit of plaintiff dated 22.10.2020. There is no
document to support the contention of the plaintiff mentioned in
affidavit dated 22.10.2020 that defendant may dispose of the said
property to delay and defeat the claim of the plaintiff.
16. Perused Affidavit Exh.3 of Mr. Shashank Vijay Vaidya. It is
mentioned in the said affidavit Exh.3 that Mr. Shashank Vijay Vaidya
came to know from Mr. Gunith Sethi of defendant No.1 that defendant
No.1 wanted to dispose of the said premises by sale urgently.
17. After going through the plaint minutely and available
material on record it does not appear that plaintiff is sure that
defendant No.2 paid the said amount of Rs.2,00,000/- to defendant
No.1. The material on record does not show that defendant No.1 with
intend to obstruct or delay an execution of any decree that may be
passed against it is about to dispose of the said whole or any part of the
property. Therefore I am of opinion that plaintiff has not made out a
prima facie case to attach the said property before Judgment. Hence,
the said property cannot be attached in the facts and circumstances
before Judgment. Therefore, application is liable to be rejected. Hence,
I proceed to pass the following order:
ORDER
ORDER BELOW EXHIBIT 02 IN SU 1182 OF 2020
1. Application Exhibit.02 in Suit No.1182 of 2020 filed for
attachment before Judgment of said property of the DefendantNo.1 is
hereby rejected.
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2. This Application Exh.02 be registered as Notice of Motion for
Statistical purpose.
3. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 07/11/2020 City Civil Court, Gr. MUMBAI
Dictated on : 07.11.2020
Transcribed on : 07.11.2020
Checked on : 09.11.2020
Signed on : 09.11.2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.11.2020 at 04.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 07.11.2020
Judgment/order signed by P.O. on 09.11.2020
Judgment/order uploaded on 09.11.2020
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