Final Order 1

Order Details: Notice of Motion
Pdf Text: 1/7 Order in NM 443219 in Comm. Suit 191/19
NOTICE Of MOTION NO. 4432 OF 2019
IN
COMMERCIAL SUIT NO. 191 OF 2019
CNR NO. : : MHCC010121612019
M/s. Ciess Texaux Speciality
Chemicals Pvt. Ltd. … Plaintiff
Versus
Sharayu Synthetic Processors & Ors. ...Defendants
Appearance:
Adv. Snehal Modi for Plaintiff.
None for defendants.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 28th MARCH 2023
ORDER
The plaintiff has taken out present Notice of Motion for
attachment of property being Flat No. 201 at Thane (West), belonging
to the defendant No. 3. Perused the Notice of Motion, affidavitin
support of Notice of Motion and affidavitinreply filed by the defendant
No. 2.
2. According to the plaintiff, pursuant to the orders placed by
the defendants with the plaintiff from time to time, the plaintiff and
Esskay Enterprises sold, supplied and delivered to the defendants
textile chemicals and auxiliaries and raised invoices on the defendants
towards said supplies made by the plaintiff. The defendants have
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received the goods and have confirmed the amount due and payable by
the defendants to the plaintiff. The defendants have failed to pay and
neglected to pay the balance amount to the plaintiff. In fact, the
defendants have issued some cheques in favour of plaintiff as well as
Esskay Enterprise and the said cheques were dishounoured and plaintiff
filed complaint in the Court of Metropolitan Magistrate 72nd Court at
Vikhroli and the same is pending. The defendants are not interested in
paying the aforesaid amount to the plaintiff. Defendants owe
Rs.40,93,973.25ps. to the plaintiff. According to plaintiff, defendant
Nos. 2 and 3 owns and possesses one flat at Thane and it is necessary to
attach the property. Hence, plaintiff prayed that the property of
defendants be attached.
3. The defendant No. 2 submitted reply to the Notice of
Motion and resisted the Notice of Motion. The plaintiff has no cause of
action to file the plaint. The defendants used to make payment on
adhoc basis from time to the plaintiff. The defendant No. 1 was not
aware about the entries made by the plaintiff in the ledger account.
There is nothing due and payable by the defendants to the plaintiff
under any of the purchase order. Lastly, the defendant No. 2 prayed for
dismissal of Notice of motion.
4. As per the order dated 11.02.2021, the suit was proceeded
exparte against defendant nos. 1 and 3.
5. Heard learned advocate Snehal Modi for plaintiff at length.
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6. Inspite of giving sufficient opportunity, the defendants
failed to argue the Notice of Motion. Hence, the order of no argument
was passed against defendant No. 2.
7. Learned Senior Counsel Snehal Modi for plaintiff submitted
that there is no correspondence made by the defendant Nos. 2 and 3 to
plaintiff. For the first time, the defendant No. 2 has raised the defence
in written statement. The ledger account of the plaintiff shows the due
amount from the defendants. He also argued that defendants have
acknowledged the liability. The defendants made part payment. All the
invoices shows about the description of the goods and payment and rate
of interest. The defendants issued some cheques in favour of plaintiff. In
written statement, defendant No. 2 has admitted about the part
payment. He argued that the defendants had given excuses every time.
Lastly, he submitted that Notice of motion be allowed and property of
the defendants be attached.
8. Perused the Notice of Motion and reply filed by the
defendant no. 2. The plaintiff prayed that during the pendancy of the
suit, the order of attachment before Judgment be passed and the
property bearing flat no. 201 belonging to defendant no. 3 be attached.
The plaintiff has filed the present suit for the recovery of the
outstanding amount from the defendants. According to the plaintiff,
there is apprehension that the defendants will alienate the property in
order to defraud their creditors. Hence, the plaintiff prayed that the
order of attachment before Judgment of the property belonging to the
defendant no. 3 be passed. At the outset, it is to be noted that the
plaintiff has not specifically mentioned in the Notice of Motion that the
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defendant no. 3 made efforts to dispose off the property. The plaintiff
has not adduced any evidence on record in order to prove that the
defendants attempted to alienate their property. The plaintiff has not
specifically mentioned by which mode of transfer the defendants
attempted to alienate the property belonging to the defendant no. 3.
According to the plaintiff, an amount of Rs.40,93,973/ is outstanding
from the defendants. The plaintiff has an opportunity to prove the
averments by leading evidence. At this stage, it is not proper to express
any opinion in respect of genuineness of the documents. In my view, the
transaction between the plaintiff and the defendants is yet to be
established by the plaintiff. The claim of the plaintiff is not yet
established. Therefore, at this stage, it is not proper to pass any order of
attachment before Judgment.
9. The plaintiff has prayed that the property belonging to the
defendant no. 3 bearing flat no. 201 at Thane (W) be attached. In order
to obtain any relief under Order 38 Rule 5 of the Code of Civil
Procedure, the plaintiff must satisfy that the defendants are about to
dispose off whole or any part of the property or about to remove the
whole or any part of their property from the local limits of the
jurisdiction of the Court with intent to obstruct or delay the execution
of the decree that may be passed against them. In that respect, there is
no pleading on behalf of the plaintiff that the defendants are about to
dispose off the whole or any part of the property or about to remove
whole or any part of the property from the local limits or jurisdiction of
the Court. Not a single instance has been mentioned by the plaintiff in
order to show that the defendant no. 3 attempted to transfer any of his
property or attempted to make any such transfer of the property.
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10. The plaintiff prayed that the property belonging to the
defendant no. 3 be attached. An order under Order 38 Rule 5 & 6, can
only be issued, if circumstances exist. The Court would not be justified
in issuing an order for attachment before Judgment, or for security,
merely because it thinks that no harm would be done thereby or that
the defendant would not be prejudiced. A mere allegation that the
defendant, was selling off and his properties is not sufficient. Particulars
must be stated by the plaintiff. The mere fact of transfer is not enough,
since nobody can be prevented from dealing with the properties simply
of cause a suit has been filed. There must be additional circumstance to
show that the transfer is with an intention to delay or defeat the
plaintiff's claim. The plaintiff to avail the benefit need to show, prima
facie, that his claim is bona fide and valid and also satisfy the Court that
the defendant is about to remove or dispose of the whole or part of his
property, with the intention of obstructing or delaying the execution of
any decree that may be passed against him. The power under Order 38
Rule 5 CPC is a 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 the Rule. The purpose of
Order 38 Rule 5 is not to convert an unsecured debt into a secured debt.
Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as
a leverage for coercing the defendant to settle the suit claim should be
discouraged. Instances are not wanting where bloated and doubtful
claims are realilsed by unscrupulous plaintiffs by obtaining orders of
attachment before judgment and forcing the defendants for outofcourt
settlements under threat of attachment. A defendant is not debarred
from dealing with his property merely because a suit is filed or about to
be filed against him. A plaintiff should show, prima facie, that his claim
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is bona fide and valid and also satisfy the court that the defendant is
about to remove or dispose of the whole or part of his property, with
the intention of obstructing or delaying the execution of any decree that
may be passed against him. Before power is exercised under Order 38
Rule 5 CPC, Court should also keep in view the principles relating to
grant of attachment before judgment. The Hon'ble Supreme Court in
the case of Raman Tech. & Process Engg. Co. & Anr. Vs. Solanki Traders
: [(2008) 2 SCC 302] wherein it is observed by the Hon'ble Supreme
Court that the plaintiff to avail the benefit, need to show prima facie
that his claim is bonafide and to satisfy the Court that the defendant is
about to remove or dispose of the whole or part of the property with
intention of obstructing or delaying execution of any decree that may be
passed.
11. The ratio laid down in the aforesaid ruling is applicable to
the present case. 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 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. In the present case,
the plaintiff has failed to make out the prima facie case.
12. To conclude the foregoing discussion, I am of the view that
at this stage, it is not necessary to go into the correctness or otherwise
contentions raised by the parties in the Notice of Motion. The plaintiff
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could not satisfy the Court that the defendants tried to dispose off the
property with intent to defeat the decree that may be passed against
them. The plaintiff has not made out primafacie case for passing the
order of attachment of property before Judgment under Order 38 Rule
5 of the Code of Civil Procedure. In these circumstances, the order of
attachment of the property cannot be passed. Therefore, the plaintiff is
not entitled to the prayers sought in the Notice of Motion. Hence, the
Notice of Motion is liable to be dismissed. Hence, I pass the following
order :
ORDER
1. The Notice of Motion No. 4432 of 2019 in Commercial
Suit. No. 191 of 2019 stands dismissed.
2. Parties to bear their respective costs.
3. The proceeding of Notice of Motion No. 4432 of 2019 is
closed.
Dated : 28.03.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 28.03.2023
Transcribed on : 31.03.2023
Checked & signed by HHJ on : 24.04.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24.04.2023 1.50 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
28.03.2023
Judgment/order signed by P.O on 24.04.2023
Judgment/order uploaded on 24.04.2023
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