GALGOTIAS UNIVERSITY Vs. MALAYALA MANORAMA COMPANY LTD.

JUDGEMENT

(1.) This appeal has been filed, challenging the order passed by the court below in I.A No.1933/2018 in I.A No.1631/2018 in O.S.No.84/2018 on the file of the Sub Court, Ernakulam. O.S No.84/2018 is a suit, filed by the respondent herein seeking a decree for recovery of an amount of Rs.79,86,000.00 with interest from the appellants herein and defendants Nos.2 and 3. I.A No.1631/2018 was filed under Order 38 Rule 5 r/w Order 21 Rule 46 and Sec. 151 of the Code of Civil Procedure, to attach the bank account of the appellant herein. According to the averments in the petition, the respondent herein is the owner, printer, publisher of daily news paper and several magazines, which has got large circulation in the country. The respondent/ plaintiff has published advertisements in the inside front cover page of 'The Week' and the monthly 'Smart Life' magazine at the special rates agreed by the appellant/1st defendant herein and the advertisement was published in between the period from 13/4/2014 to 1/10/2014. After publishing the advertisements, the respondent sent invoices to the appellant requesting them to pay the amounts. Initially, the appellant had issued cheques for making part payments against the total outstanding amounts, but the same was dishonoured on presentation and at last, in furtherance of partial discharge of the said liability, the appellant had issued cheque for an amount of Rs.13,23,000.00, which was encashed on presentation and thereafter the balance amounts due to the respondent is Rs.79,86,000.00. But the appellant is deliberately evading the payments and they have not made any payments, despite repeated demands. Now it is revealed that the appellants are trying to remove the amounts collected from the account, which is being maintained with Oriental Bank of Commerce, Newazpur Branch, Uttar Pradesh. The appellants are removing the amounts, with a view to defeat the execution of the decree that may be passed against him. According to the respondent the appellant has no other source except the amount in the said account. Hence the respondent prayed for issuing an order directing the appellant to furnish security for the amount claimed in the suit and in the meanwhile for issuing an interim attachment order attaching the amount laying in the account maintained by the appellant in the Oriental Bank of Commerce, Newazpur Branch, Uttar Pradesh in the name of the appellant.

(2.) The appellant herein has filed a counter affidavit denying the respondent's claim for Rs.79,86,000.00 against the appellant. According to them, no amount was due to the respondent in the account for publishing advertisement of the appellant university and they have already paid the amounts due to the respondent for the advertisements published by them. It is also contended that the claim for money is barred by limitation. They denied the allegation that with an intention to obstruct or delay the decree that may be passed against the appellants, they are trying to withdraw the amounts from the bank account. According to the appellants, the respondent has failed to establish a prima facie case and the averments in the affidavit filed along with the petition plaintiff was no prima facie case and even if, the allegations are accepted at its entirety, claim is barred by limitation. However, it is contended that the averments in the counter affidavit filed along with the petition are not in conformity with the statutory requirements under Order 38 Rule 5 of CPC. It is also contended that, though the findings are based on documents produced by the respondents, none of the documents are seen referred to in the findings and thereby, the findings have no basis at all. In short, according to the learned counsel for the appellant, the findings are not supported by any documents. are not in conformity with statutory requirements under Order 38 Rule 5 of CPC. Thus, the appellants have strongly denied the claim for recovery of amounts and the prayer for attachment of their bank account, before Judgment.

(3.) On the rival pleadings and based on the documents produced by the plaintiff, the court below rendered the impugned order, whereby, the interim order of attachment was made absolute. The legality and correctness of the findings, whereby the court below has made the interim of attachment absolute, are assailed in this appeal.