GANESH KISHANKUMAR AGARWAL Vs. SIMMI SANJAY BAVEJA

JUDGEMENT

(1.) Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(2.) It is the case of the petitioner that the petitioner is engaged in the business of dyed cloths at Surat, holding GST number and the respondent is carrying on the cloth business with her son Udit Baveja. The petitioner and the respondent are living in the very same apartment and they know each other and the respondent and her son introduced themselves to the petitioner as traders in cloth business. The respondent and her son got in touch with the petitioner to buy cloths from them. In respect of the said transaction, the respondent herein had purchased dyed cloths worth Rs.1,36,74,925/- from the petitioner on different dates against various bills in the year 2017-18. Against the said transaction, the respondent has paid Rs.72,98,599/- and as per the ledger account of the petitioner, still the respondent is bound to pay an amount of Rs.63,76,326/- plus interest of Rs.5,44,039/-. To recover the said amount, cheques have been handed over and assured the petitioner that same will be honored and the petitioner will receive the payment. However, the said cheques for want of sufficient fund returned. As a result of this, notice was issued under the provisions of the Negotiable Instruments Act and then the petitioner was required to file suit, being Special Civil Suit No.45 of 2019 in the Civil Court at Surat. On account of default, deliberately being committed by the respondent and her son, according to the petitioner, he has been placed in a great financial crisis and the respondent somehow is trying to sell away the property, i.e. flat No.F-204, Aagam Residency-F, situated on Final plot No.135, Town Planning Scheme No.1 (Vesu), Revenue Survey Nos.54/1 and 54/2, old Survey Nos.59 and 60, Mouje Vesu, City Surat, District Surat, admeasuring 750 Sq. Ft. Since that was apprehended by the petitioner, the petitioner preferred an application under Order-38 Rule 5 of the Code of Civil Procedure ('the Code' for short) for seeking attachment of the said property. Learned Judge however did not consider the same and by reasoned order, rejected the application by order dated 11.6.2019 and the said judgment is made the subject matter of the present petition.

(3.) Learned advocate Mr. Malkan appearing on behalf of the petitioner has submitted that on account of the transaction, huge amount is remaining outstanding to be paid to the petitioner and the respondent is likely to run away from the property by selling it away which would cause enormous prejudice to the interest of the petitioner. It has been submitted that learned Trial Judge is sufficiently cached with the power under Order 38 Rule 5 of the Code, by virtue of which, either security to be offered by the respondent or for attaching the property. Considering the aforesaid huge liability which has been incurred, at least the Court ought to have considered the request and the property ought to have been attached. That having not been done, serious error is committed by the Court below. Mr. Malkan has vehemently submitted that the entire approach shown by the Court below is also not just and proper in view of the objects provided under the aforesaid provisions. It is in this view of the matter, the very exercise of jurisdiction deserves to be deprecated. Mr. Malkan has submitted that even the reasons which are assigned by the Court below are not sufficient enough to indicate that the conclusion arrived at is just and proper. That be so, the order in question deserves to be quashed and set aside.