MODISTA RESORTWEAR REP. BY THEIR PARTNER SHRI SHANKAR IYER Vs. LA CALYPSO HOTELS PVT. LTD., THROUGH THEIR MANAGING DIRECTOR MR. KAUSHAL KHANNA

JUDGEMENT

(1.) HEARD Shri A. R. Kantak, learned Counsel appearing for the appellant. The above appeal challenges the order passed by the learned Civil Judge Senior Division, at Mapusa, in Special Civil Suit No. 98/2009/C whereby an application for temporary injunction filed by the appellant restraining the respondent inter -alia from alienating the property belonging to the respondent came to be rejected.

(2.) THE appellant has filed a suit for decree of money on the ground that the appellant had rendered services to the respondent for construction of tourist sheds. It is further their case that in view of the fact that the respondent had not cleared the amount payable to the appellant, the suit came to be filed to claim a specific sum of money of about Rs.28 lakhs from the respondent.

(3.) SHRI A. R. Kantak, learned counsel appearing for the appellant has assailed the impugned order essentially on the ground that as per the statement of accounts filed by the respondent, the appellant is being shown as creditor of the respondent. The learned Counsel has taken me through the statement of accounts for the year 2007 -2008 and pointed out that there are figures mentioned therein to the effect that the appellant was creditor of the respondent. The learned Counsel has taken me through the statement of accounts of the appellant and pointed out the figures mentioned with regard to the debtors of the appellant disclose that the respondent is a debtor of the appellant. The learned counsel as such submitted that the fact that the appellant is a creditor of the respondent has been prima facie established. The learned Counsel further pointed out that though the figures shown in the statement of accounts is a sum of Rs.39 lakhs nevertheless, according to him, subsequently some of the amount has been paid and the amount due from the respondent at the time of the filing of the suit is around Rs.28 lakhs. The learned Counsel has further taken me through the provisions of Order 39 Rules 1 and 2 of Civil Procedure Code and pointed out that the Court has powers to stay alienating of immovable property pending hearing of the suit. The learned Counsel further pointed out that there are ample powers on the Court also to restraint alienating of the property in cases in which the properties are sold to the detriment of the creditors and as such the learned Counsel submits that considering the provisions of Order 39 Rules and of the Civil Procedure Code, the learned Judge was not justified to refuse the application for temporary injunction. In support of his submissions, the learned Counsel has relied upon the judgments of this Court reported in : AIR 1994 Bom 141 in the case of Jagdish Balwantrao Abhyankar and others, V/s State of Maharashtra and other and CDJ 2012 Bombay High Court 099 in the case of Swan Mills Ltd. & Anr. V/s Dhirajlal @ Dhirubhai Babaria & Others. The learned Counsel as such submits that even assuming the Court was not inclined to grant the injunction in terms of the provisions of Order 39 Rules and of Civil Procedure Code nevertheless the Court could have exercised its powers under Order 38 Rule of the Civil Procedure Code to attach the property before judgment.