HARI SHANKAR Vs. BHOORI DEVI

JUDGEMENT

(1.) This is a petition for revision against the order of the trial court dated 28th July, 1973, holding that the plaintiff has proved the case for attachment before judgment and has allowed an application dated 11th September, 1972, directing the defendant petitioner to furnish security in the sum of Rs 15,000/ by 20th August, 1973, and Failing in it, the petitioner's property mentioned in the application that is jewellery at his shop situated at Bhiwani worth Rs. 15,000.00 was to be attached before judgment. The defendant petitioner being aggrieved has come to this .Court for setting aside the afore- said order. To appreciate the contentions of the parties, it is necessary to state a few facts.

(2.) On 11th September. 1972, the present suit was filed for recovery of Rs. 10,8'00.00 under the sumnury procedure of Order 37 of the Code of Civil Procedure, and along with it the aforesaid application for attachment bifore judgment was also filed under Order 38 Rule 5 of the Code of Civil Procedure. On the defendant-petitioner being served, he filed an application on 21st September for leave to defend the suit and contended that the document on which th3 suit had been filed is not a negotiable instrument and prayed for relief being granted unconditionally to defend the suit. The trial court by order dated 27th September, 1972 granted leave to the petitioner to defend the suit. The leave was, however, granted conditionally on his giving security for the sum of Rs. 11,000.00 and if the security was not furnished the leave was deemed to have been declined. Sin-:e the defendant-petitioner was asked to furnish security on the application to seek leavs to defend the suit. the trial court directed that the plaintiff respondent's application under Order 38 Rule 5 need not be decided at this stage. The defendant- petitioner, however, challenged the aforesaid order dated 27th September, 1973 by way of resivision petition (CR. 453/72) and this Court on 5.1.1973 admitted the revision petition and further ordered that the proceedings for furnishing security are stayed but the proceedings in the application under Order 38 Rule 5 may be continued, whereupon the defendant-petitioner filed his written statement on or about 19th February, 1973. However, soon thereafter in February 1973.the plaintiff-respondent filed an amended plaint basing his suit on the original cause of action rather than on the negotiable instrument. In the amended plaint, the plaintiff resp. pleaded that the resp. on 11.12. 1970 took loan of Rs. 15,000.00 and executed the document dated 11.12.1970 and the loan was to carry interest of 7% per annum and the loan was to be discharged in instalments of Rs. 1000.00 each every month with effect from 11th January, 1971 It was further pleaded that the respondent had so far paid only five instalments of Rs 1000/ fromJanuaryl9/l toMay l971 but has failed to pay any subsequent instalment and therefore the whole of the balance amount has become due in terms of the document dated 11th December, 1970. The balance amount was of Rs 10.000.00 towards principal and Rs. 800.00 as interest. The defendant petitioner filed a written statement pleading that the bond was without consideration. It was further pleaded that sometime earlier upto 31st March, 1970, the petitioner had been carrying on business along with the plaintif's deceased husband, Shri Ghisilal under the firm name M/s Ghisi Lal Jewellers, at Jaipur but the said firm was dissolved on 31st March, 1970 but for commercial expediency the petitioner was shown as sale/commission agent. It was further pleaded that the said Ghisilal unfortunately expired about the time of Diwali in 1970 and after the dissolution of the firm, the petitioner started his own business in the month of April 1970 in partnership with one Rajesh Kumar Goyal in the name of M/s Kamal Jewellers, Shahid Market, at Bhiwani, which firm continued till July 1971 and thereafter the petitioner had been carrying on his business as a sole proprietor of M/s. Kamal Jewellers, Shahid Market, Bhiwani. It was further pleaded that the above said Ghisilal was also having his own. shop named "Ghisilal Jeweller? at Bir Bazar, Triuchirapally and after the petitioner separated from the Jaipur firm and till Shri Ghisilal expired, the petitioner had been purchasing goods that is Synthetic stones etc. on credit from the said Shri Ghisilal. It was further pleaded that in the month of December, 1970, the defendent-petitioner came to Delhi in his business connection and on pursuation of two common friends, Madan Lal and Kimat Rai, agreed that till the accounts of credit purchases made by the defendant-petitioner were finally settled, the petitioner may pay Rs. 1000.00 per month for four or five months and by then the accounts could be finalised and settled and it was towards the balance, if any, to be found due after the settlement of accounts that the instalments of Rs. 1000.00 per month were tentatively fixed to be paid because it was expected that the amount due would be finalised within four or five months and in order to show his bonafides the defendant-petitioner agreed to sign the alleged deed by way of display of his extreme bonafides as well as by way of collateral and contingent security for finally paying of any amount that may be found outstanding to be paid by the defendant to the plaintiff towards the balance of credit purchases made by the defendant from the plaintiff's deceased husband, and therefore, as a matter of fact, no amount of Rs. 15,000.00 in cash was taken as loan or advance from the plaintiff by the defendant~petitioner Accounts were finally settled and nothing now remained due to be paid by the defendant- petitioner and the suit on the basis of the alleged bond was therefore not maintainable and was liable to be dismissed. It was further pleaded that the plaintiff did not return the alleged bond on the pretext of having misplaced some where.

(3.) In the application which was filed under Order 38 Rule 5, it was pleaded by the plaintiff respondent that the defendant was in possession of sufficient assets i e. Jewellery etc. in his shop .situated at Shaheed Bhagat Singh Market, Bhiwani. It was further pleaded that trie defendant petitioner was about to remove or otherwise part with possession Or transfer to someone else his aforesaid assets kept by him in his aforeaaid business premises as also of other costly Jewsllary items and precious/semi precious stones kept by him at his residence at Bhiwani. The said application was also supported by an affidavit of Shri Trilok Chand, son of the plaintiff. The petitioner objected to the attachment before judgment and pleaded that no definite evidence had been cited to satisfy the court that the transfer or disposal of his assets was designed with a view to obstruct or delay the execution of any decree that may be passed against the plaintiff, nor did the application itself disclose any ground of belief or the source of informition. It was again pleaded that originally the application was filed along with the suit which was alleged to be based on negotiable instrument but the plaintiff of his own amended the plaint since" then. On merits the averments made in the application were denied as baseless and unfounded and it was pleaded that the petitioner was in a sufficiently good financial position and was commanding good credit and reputation in the business market and the allegations of the plaintiff were maliciously false and misleading, and the defendant would suffer irreparable loss of property and reputation if the plaintiff respondent's apilicition was granted. A reply was also submitted by affidavit of the defendant The trial court after noticing the contention of the parties and after noticing the essential requisits before an order under Order 38 Rule 5 of the Code of Civil Procedure is passed, proceeded to observe that the plaintiff respondent's application was supported by the affidavit of his son, Trilok Chand. According to him it was stated that he had gone to Bhiwani on 10th September. 1972, with a view to prevail upon the defendant-petitioner to repay the amount due to his mother but he refused. It was also stated in the aforesaid affidavit that the plaintiff would not be able to recover the amount from the defendant as the defendant would soon transfer all his assets in business to someone else. After noticing the said avernment made in the affidavit of Shri Trilok Chand, the trial court assumed that the said allegations had gone unrebutted and therefore a case was made out for issue of appropriate orders under Order 38 Rule 5.