and the order impugned that
besides the averments and submission of statistical data below paragraph
11 in the suit, there was no shred of evidence in the form of documents
before the Trial Court which could have convinced it to grant the said
application. There was no material before the Trial Court to prima facie
conclude that the Respondent was liable to pay the amount as claimed by
the Petitioner. It cannot be overlooked that the Respondent is an
agriculturist and the amount at issue is compensation that is to be paid to
him on account of acquisition of his land.
23 The Apex Court, in the matter of Raman Tech and Process
Engineering v/s Solanki Traders (supra), has concluded that the object of
Order 38 Rule 5 is to prevent any Defendant from defeating the
realization of the decree that may ultimately be passed in favour of the
Plaintiff by attempting to dispose of or alienate his property or remove the
movables. Paragraphs 4 and 5 of the said judgment read as under:“
4. The object of supplemental proceedings
(applications for arrest or attachment before
judgment, grant of temporary injunctions and
appointment of receivers) is to prevent the ends of
justice being defeated. The object of order 38 rule 5
CPC in particular, is to prevent any defendant from
defeating the realization of the decree that may
ultimately be passed in favour of the plaintiff, either
by attempting to dispose of, or remove from the
jurisdiction of the court, his movables. The Scheme
of Order 38 and the use of the words `to obstruct or
delay the execution of any decree that may be
passed against him' in Rule 5 make it clear that
before exercising the power under the said Rule, the
court should be satisfied that there is a reasonable
chance of a decree being passed in the suit against
the defendant. This would mean that the court
should be satisfied the plaintiff has a prima facie
case. If the averments in the plaint and the
documents produced in support of it, do not satisfy
the court about the existence of a prima facie case,
the court will not go to the next stage of examining
whether the interest of the plaintiff should be
protected by exercising power under Order 38 Rule
5CPC. It is wellsettled
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 also 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.
5. The power under Order 38 Rule 5 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 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 utilize 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 realised by
unscrupulous plaintiffs by obtaining orders of
attachment before judgment and forcing the
defendants for out of court settlement, under threat
of attachment.”
(emphasis is mine)
24 It, therefore, has to be borne in mind that Order 38 Rule 5 is
not to be exercised mechanically and casually. It is that power which has
to be exercised sparingly and so to say in the rarest of rare case where the
intended object of the Defendant is prima facie visible in frustrating the
claim of the Plaintiff. In the instant case, besides the admission of the Respondent that an amount of Rs.15,000/is to be paid by way of
professional fees, the details put forth by the Petitioner/ Plaintiff below paragraph 11 in the suit, prima facie appear to be a mere statistical data, unsupported and unsubstantiated by any document.
25 In the light of the above, I do not find that the impugned
order could be termed as being perverse or erroneous so as to cause an
interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9591 OF 2015
Annarao s/o Govindrao Patil, V Dnyanobas/o Vithal Bade,
CORAM: RAVINDRA V. GHUGE, J.
DATE :22ndSeptember, 2015
Citation;2016(2) ALLMR110
1 Not on Board. Mentioned. Taken on Board.
2 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
3 The Petitioner is aggrieved by the order dated 14.09.2015
passed by the learned Trial Court below application Exhibit5
which was
filed under Order 38 Rule 5 of the Code of Civil Procedure in RCS
No.442/2015.
4 The Petitioner/ Plaintiff is a legal practitioner. The
Respondent/ Defendant had engaged the services of the Petitioner in LAR
No.1625/2001, in Special Darkhast No.131/2009 as well as in Special
Darkhast No.37/2015.
5 The issue is as regards the unpaid professional fees as well as
expenses incurred by the Petitioner in conducting the above said three
cases on behalf of the Respondent.
6 The Petitioner has preferred Regular Civil Suit No.442/2015
before the Trial Court seeking recovery of the unpaid fees and expenses.
An application Exhibit5
for seeking attachment of the decreetal amount
in LAR proceedings to the extent of unpaid fees and expenses of
Rs.1,42,975/,
was preferred under Order 38 Rule 5 of the Code of Civil
Procedure. By the impugned order dated 14.09.2015, the Trial Court has
rejected the said application Exhibit5.
7 The grievance of the Petitioner is that the only property
available with the Respondent has been acquired in the acquisition
proceedings. There is no other property held by the Respondent. The
decreetal amount which is being sought to be recovered by the
Respondent in Special Darkhast No.37/2015 is the only amount available
with him.
8 The Petitioner contends that he had exerted in prosecuting
three cases on behalf of the Respondent. The professional fees were
agreed for an amount of Rs.15,000/.
The expenditure incurred by the
Petitioner in conducting all these cases on behalf of the Respondent were
set out in a tabular form below paragraph 11 in the suit.
9 The Petitioner further contends that the Trial Court has
rejected the application Exhibit5
without even framing proper issues as to
whether, the Petitioner has made out a prima facie and whether, balance
of convenience lies in his favour. The Trial Court has lost sight of the fact
that if the decreetal amount is withdrawn by the Respondent, the
Petitioner would not be able to recover the said amount despite
succeeding in the suit.
10 Reliance is placed upon the judgments of this Court in the
matter of Iridium India Telecom Limited v/s Motorola INC, 2004 (supp.2)
B.C.R. 808 and in Bandekar Brothers Pvt. Ltd. v/s V.G.Quenim, 2001(4)
B.C.R. 390.
11 The Petitioner, therefore, prays that an amount of
Rs.1,42,975/be
preserved/ attached so as to enable the Petitioner to
prosecute the suit.
12 Shri N.P.Patil Jamalpurkar, learned Advocate has appeared on
behalf of the sole Respondent. He submits that an amount of Rs.15,000/was
agreed by way of professional fees to be paid by the Respondent to
the Petitioner/ Plaintiff. No other fees were agreed upon. The expenditure
purportedly incurred by the Petitioner is merely stated by way of an
averment in the tabular form below paragraph 11 in the suit. Not a shred
of evidence in the form of documents have been placed on record to
suggest that an amount of Rs.1,42,975/was
owed by the Respondent to
the Petitioner.
13 He further submits that the Trial Court has considered the
contentions of the litigating sides and has arrived at a conclusion that
besides the admission of the Respondent that an amount of Rs.15,000/is
to be paid, there is no prima facie justification in claiming an amount of
Rs.1,42,975/.
14 He relies upon the judgment of the Apex Court in the matter
of Raman Tech and Process Engineering Company v/s Solanki Traders,
2008(3) Mh.L.J. 6, to support his contention that the power under Order
38 Rule 5 of the Code of Civil Procedure has drastic and extraordinary
ramifications. The said power has to be exercised with due care, caution
and circumspection. Such orders are not to be passed mechanically or at
the mere askance. He, therefore, prays that this petition be dismissed.
15 I have considered the submissions of the learned Advocates as
have been recorded herein above.
16 It cannot be ignored that the Petitioner has moved an
application Exhibit21
in Special Darkhast No.37/2015 seeking orders
from the Executing Court in the nature of preventing the Respondent from
receiving the entire decreetal amount in the light of the pending RCS
No.442/2015. That application was already disposed of by the order dated
07.09.2015, which reads thus:“
1) The thirdparty
Adv.A.G.Patil is hereby directed to file
pursis in this matter mentioning the amount claimed
in civil suit against the claimant.
2) After deducting that amount, remaining amount of
enhanced compensation shall be paid to the claimant.
3) 15 days time is granted to the thirdparty
Adv.A.G.Patil for bringing the stay order from higher
court. If he failed to bring the stay the deducted
amount shall be paid thereafter to the claimant.
4) The application is disposed of accordingly.”
17 The Petitioner, therefore, was permitted to file a purshis
before the Executing Court to indicate the amount which is recoverable
from the Respondent. The Petitioner has not challenged the said order.
18 Paragraphs 61 and 68 from the judgment of this Court in the
matter of Iridium India Telecom Ltd. v/s Motorola INC (supra) read as
under:“
61. When we are examining the case of the appellant for
interlocutory order, we are not required to give a
finding that they have foolproof
case of fraud or
misrepresentation. We have to see whether, the
appellant has made out a case of existence of legal
rights and their violation due to fraud or
misrepresentation as claimed and the resultant
prejudice if protection is not granted. We have to see if
the appellant has made out a case for protection until
the matter goes for trial. In (Martin Burns Ltd. v.
R.N.Bannerjee), A.I.R. 1968 S.C. 79 the question
before the Apex Court was with respect to the order of
the Labour Appellate Tribunal (LAT). The LAT had to
determine the material before it as to whether the
employer had made out a prima facie case for the
termination of the employees service. In that context,
the Apex Court in para 27 stated about the prima
facie case in the following words:“
27. A prima facie case not mean a case proved to
the hilt out a case which can be said to be established
if the evidence which is led in support of the same
were believed. While determining whether a prima
facie case had been made out the relevant
consideration is whether on the evidence led it was
possible to arrive at the conclusion in question and
not whether that was the only conclusion which could
be arrived at on that evidence.”
If the appellant has no such case, it will certainly not
get the interim order, but if it has made out any such
case, it cannot be denied it either.
68. The second point for our determination is with respect
to the powers of the Court to grant the kind of
prayers that are sought through the two motions. The
motions seek a direction to furnish security and/or a
warrant of attachment under Order XXXVIII Rule 5 of
C.P.C.. Those are prayers (a) and (b) of the two
motions. Prayers (c) and (d) of the first motion and
prayers (d) and (e) of the second motion are in the
nature of a garnishee order for attaching the money
receivable by the respondents. Order XXXVIII, Rule 5
requires a plaintiff to prima facie show that the
respondent (a) is about to dispose of whole or any
part of his property, or (b) is about to remove whole
or part of his property from the local limits of
jurisdiction of the Court with an intent to obstruct or
delay the execution of a decree that may be passed
against him. In the present case, respondent No.1Motorola
does not have any fixed assets in India. The
learned counsel appearing for the appellant made a
statement before the learned Single Judge that the
appellant was not in a position to show that the
respondent was about to dispose of the property with
an intent to obstruct or delay the execution of the
decree, yet in the peculiar facts and circumstances of
the case, the garnishe order was passed with respect
to the receivables of the respondents in India and for
that purpose reliance was placed on Section 151 of
C.P.C..”
19 This Court has, therefore, concluded that the prayers under
Order 38 Rule 5 of the Code of Civil Procedure are to be considered in the
backdrop of prima facie evidence that whole property or part of the
property deserves to be attached. This Court has held that there ought to
be material available before the Trial Court to pass an order under Order
38 Rule 5.
20 In the matter of Bandekar Brothers (supra), this Court has
drawn it's conclusions in paragraphs 16 and 17 which read thus:“
16. After perusing the documents/pleadings relied by the
respective parties, I am of the opinion that, the trial
Court in
the first place, ought to have thoroughly
examined the rival claims and found out whether the
respondents were liable to pay to the appellants as
claimed by the appellants or whether the appellants
were liable to pay to the respondents as claimed by
the respondents. Unless this opinion was reached,
neither the application for attachment before
judgment nor the relief of injunction as prayed for
could have been considered. Since there is basic error
in the approach of the trial Court, it is not possible to
sustain the order which is under challenge in the
present appeals. The appropriate course in such a
situation, as submitted by both the Advocates, would
be to set aside this order and remand the matter to
the trial Court to adjudicate all the pending
applications together in the other three suits referred
to above and the applications in the present suit, so
that a complete picture emerges before the Court to
record on the issue of liability of the parties. The
Court may thereafter examine the merits of the
contentions. It is made clear that I am not expressing
any opinion on the merits of the rival contentions.
17. By now, it is well settled that even for granting
injunction the Court has to record clear finding with
regard to three cardinal principles, namely, prima
facie case, balance of convenience and irreparable
loss. The trial Court has not recorded any finding on
these three aspects separately, though it proceeded to
grant injunction partly in favour of the appellants.
The parameters that would apply while considering
the relief of attachment before judgment would be far
more severe as the said relief can be granted only in
exceptional situations. It would be, therefore,
imperative for the trial Court to examine all these
aspects afresh on merits and in accordance with law.”
21 This Court has, therefore, held that three cardinal principles
for granting injunction are founded upon making out of a prima facie
case, balance of convenience and irreparable loss. It is held that these
principles would apply even in the case of relief of attachment.
22 I find from application Exhibit5
and the order impugned that
besides the averments and submission of statistical data below paragraph
11 in the suit, there was no shred of evidence in the form of documents
before the Trial Court which could have convinced it to grant the said
application. There was no material before the Trial Court to prima facie
conclude that the Respondent was liable to pay the amount as claimed by
the Petitioner. It cannot be overlooked that the Respondent is an
agriculturist and the amount at issue is compensation that is to be paid to
him on account of acquisition of his land.
23 The Apex Court, in the matter of Raman Tech and Process
Engineering v/s Solanki Traders (supra), has concluded that the object of
Order 38 Rule 5 is to prevent any Defendant from defeating the
realization of the decree that may ultimately be passed in favour of the
Plaintiff by attempting to dispose of or alienate his property or remove the
movables. Paragraphs 4 and 5 of the said judgment read as under:“
4. The object of supplemental proceedings
(applications for arrest or attachment before
judgment, grant of temporary injunctions and
appointment of receivers) is to prevent the ends of
justice being defeated. The object of order 38 rule 5
CPC in particular, is to prevent any defendant from
defeating the realization of the decree that may
ultimately be passed in favour of the plaintiff, either
by attempting to dispose of, or remove from the
jurisdiction of the court, his movables. The Scheme
of Order 38 and the use of the words `to obstruct or
delay the execution of any decree that may be
passed against him' in Rule 5 make it clear that
before exercising the power under the said Rule, the
court should be satisfied that there is a reasonable
chance of a decree being passed in the suit against
the defendant. This would mean that the court
should be satisfied the plaintiff has a prima facie
case. If the averments in the plaint and the
documents produced in support of it, do not satisfy
the court about the existence of a prima facie case,
the court will not go to the next stage of examining
whether the interest of the plaintiff should be
protected by exercising power under Order 38 Rule
5CPC. It is wellsettled
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 also 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.
5. The power under Order 38 Rule 5 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 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 utilize 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 realised by
unscrupulous plaintiffs by obtaining orders of
attachment before judgment and forcing the
defendants for out of court settlement, under threat
of attachment.”
(emphasis is mine)
24 It, therefore, has to be borne in mind that Order 38 Rule 5 is
not to be exercised mechanically and casually. It is that power which has
to be exercised sparingly and so to say in the rarest of rare case where the
intended object of the Defendant is prima facie visible in frustrating the
claim of the Plaintiff. In the instant case, besides the admission of the
Respondent that an amount of Rs.15,000/is
to be paid by way of
professional fees, the details put forth by the Petitioner/ Plaintiff below
paragraph 11 in the suit, prima facie appear to be a mere statistical data,
unsupported and unsubstantiated by any document.
25 In the light of the above, I do not find that the impugned
order could be termed as being perverse or erroneous so as to cause an
interference.
26 This Writ Petition being devoid of merit is, therefore,
dismissed. Rule is discharged.
27 Needless to state, the observations of the Trial Court as well
as this Court are in relation to Exhibit5
and Order 38 Rule 5 of the Code
of Civil Procedure.
28 At this juncture, Shri Gaware on behalf of the Petitioner, prays
that an amount of Rs.1,42,975/,
as is claimed by the Petitioner and as
was kept secured by the Executing Court by it's order dated 07.09.2015
below Exhibit21
in Special Darkhast No.37/2015, be further kept secured
for a period of four weeks.
29 Shri Patil vehemently opposes the said request.
30 The proceedings in Special Darkhast No.37/2015 are not a
subject matter of adjudication before this Court in any form. This Court is,
therefore, unable to accede to the request of the Petitioner. However,
liberty is granted to the Petitioner to make the said request before the
Executing Court, if he so desires.
(RAVINDRA V. GHUGE, J.)
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