MODI ALKALIES AND CHEMICALS Vs. K LINE

JUDGEMENT

(1.) By this composite application under Order 38 Rule 5and Order 39 Rules 1 & 2 C.P.C., the plaintiff seeks attachment before the judgmentof the containers of the defendants or to furnish security and further the defendantsbe restrained from alienating the goods stored in or lying in the containers orremoving the containers from outside the jurisdiction of this Court.

(2.) . This application has been contested by the defendants. Mr.R.K.Saini,appearing for the defendants contended that in order to attract the provisions ofRule 5 of Order 38, the plaintiff was to plead and prima facie establish theingredients of Rule 5 namely that the defendant with intent to obstruct or delay theexecution of any decree that may be passed against him (i) is about to dispose ofthe whole or any part of his property; or (ii) is about to remove the whole or any partof his property from the local limits of the jurisdiction of the Court. In this case,from the perusal of the application it cannot be inferred that the defendants aregoing to dispose of any part of his property or is going to remove the same outsidethe jurisdiction of this Court. The only apprehension expressed,-in this applicationis, that the defendant No. 1 being a Japanese concern has no assets available withinthe jurisdiction of this Court and, therefore, necessary order attaching the containers of defendant No. 1 be passed. The averments are vague. This is not what isstipulated under Rule 5 of Order 38. Therefore, relying on the decisions reportedin 1994(4) Apex Decision 332, AIR 1989 Delhi 60, AIR 19870rissa 107,1989 A.P. 914and AIR 1985 Karnataka 282, Mr.Saini contended that no ground is made out forattachment of defendants' goods before judgment.

(3.) . As regards, the question whether ad interim injunction can be granted, Mr.Saini contended that even for an order under Order 39 Rules 1 & 2, the plaintiff wasto show that the property in dispute is in danger of being wasted, damaged oralienated by any party to the suit, or that the defendant threatens, or intends toremove or dispose of his property with a view to defraud his creditors, or threatensto dispossess the plaintiff. The averments of the plaint do not fall under theprovision of Rule I of Order 39, nor Rule 2 can be attracted in the facts of this case.There is in fact no repetition or continuance of breach committed by the defendant.Therefore Rule 2 is also not attracted.