Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC01009582019
IN THE COURT OF SESSIONS FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO. 3522 OF 2019
IN
COMMERCIAL SUIT NO. 60/2019
New Globe Logistik LLP ]..Applicant (Org.Pltff.)
In the matter between
New Globe Logistik LLP ]..Plaintiff
V/s.
1. M/S. M. Square International ]
2. Mr. Mayur N. Mistry ]
3. Mr. Sanket C. Mane ]... Defendants
Appearances:
Ld. Adv.Chaitanyaa Bhandarkar for plaintiff.
Ld. Adv. Ram Laxmipalli for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32)
DATED : 25th February, 2021.
ORDER
The plaintiff by this notice of motion seeks to attach Bank
Account bearing No. 50200011940940 of defendant No.1, further seeks
directions to the defendants to make disclosure of assets and also had
prayed for issuance of warrant of arrest and to show cause why the
defendants should not be directed to furnish security.
2. Heard learned Advocate for the plaintiff and learned
Advocate for the defendants.
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3. It is the contention of the plaintiff that plaintiff had
instituted the suit for recovery of amount of Rs.5,73,547.50/ with
interest on Rs.4,31,993/ at the rate of 18% p.a. from 21.06.2019 till its
realization. It is the case of the plaintiff that it had provided freight
services to the defendant No. 1 from 08.05.2017 to 11.09.2017 for
amount of Rs.4,48,608/. The defendants had made a part payment of
Rs.16,615/ and further had neglected to repay the same. It is the
contention of the plaintiff in the notice of motion that the cheques
issued by defendant No. 1 were not be honoured as defendants had
instructed its bankers to stop payment. It is the contention of the
plaintiff that defendants had time and again refused to accept the
service of notice by the plaintiff. It is therefore allegation of the plaintiff
that it appears that the defendant Nos. 2 to 3 have absconded or in
process of absconding from the local limits of jurisdiction of the Hon’ble
Court with intent to delay the payment to the plaintiff and avoid the
service of the process of this Hon’ble Court and intend to delay the
execution of the decree which will be passed in the suit. The plaintiff
also had sought warrant of arrest to show cause why they should not be
directed to furnish security. The conduct of the defendants is to cause
delay or to frustrate the execution of the decree which is likely to be
passed in the suit.
4. The notice of motion is resisted by the defendants. It is
contended that notice of motion need not be entertained as is not
maintainable. The notice of motion is without any cause of action. It is
stated that because of the conduct of the plaintiff, the defendants is put
to loss. It is the contention of the defendants that the clients of the
defendants informed that partial packages i.e. out of four boxes that
were supposed to be delivered to Paraguay, only two boxes had
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reached, while the third box was wrongly transported to Australia and
the fourth box went missing. One box of consignment to Paraguay was
wrongly delivered to Australia. The allegations in the notice of motion
are denied by the defendants. The defendants has prayed for rejection
of Notice of Motion.
5. It would be worth to refer to Order 38, Rule 5 of the Code
of Civil Procedure. It reads as under:
“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 subrule (1) of this rule, such
attachment shall be void.]”
6. In order to secure the Order of the Court under Order 38
Rule 5, the plaintiff is expected to satisfy by the Court by an affidavit or
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otherwise, that the defendants with intent to obstruct or delay the
execution of decree that may be passed against it is about to dispose of
the whole or any part of his property or is about remove the whole of
his property from the local limits of the jurisdiction of the Court. The
plaintiff is expected to show that defendants are about to dispose of the
whole or any part of his property or is about to remove the whole from
local limits of the jurisdiction of the Court.
7. The plaintiff in his pleadings in the notice of motion had
contended that cheques issued by the plaintiff on presentation were
dishonored. It is submitted that the conduct of the defendants shows
that it time and again refused to accept services of notice of plaintiff. It
is the contention of the plaintiff that the conduct of the defendants
show they intend to abscond or are in process of absconding from legal
limits of the jurisdiction of this Court.
8. From the contentions of the plaintiff in the notice of motion
it cannot be said that the plaintiff had brought circumstances on record
to the satisfaction of the Court that the defendants are having intention
to obstruct and delay the execution of any decree which may be passed
against him. The plaintiff was expected to show that defendants are
about to dispose of the whole or any part of his property. Further was
also is required to show that defendants are about to remove the whole
or any part of his property from the local limits of the jurisdiction of the
Court. The circumstances expected to be brought on record to call upon
the Court to take action under Order 38 Rule 5 Subrule 2,3 and 4 are
not brought by the plaintiff.
The notice of motion, therefore, cannot be considered.
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In the result, following order is passed.
O R D E R
The Notice of Motion No. 3522/2019 is rejected.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 25.02.2021 Gr.Bombay at Mumbai.
Dictated on : 25.02.2021
Typed on : 01.03.2021
Signed by H.H.J.on : 03.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.03.2021 at 5.40 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
25.02.2021
Judgment/order signed by P.O. on 03.03.2021
Judgment/order uploaded on 04.03.2021
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