EMERALD INDUSTRIES Vs. NEERAJ PRATIBHA JV

JUDGEMENT

(1.) Heard. Being aggrieved by the order dated 5-8-2010 passed by XII Additional District Judge, Indore, in Civil Suit No. 3/2010, whereby application filed by the petitioner under Order 38 Rule 5, CPC for attachment before judgment was dismissed, the present petition has been filed. Short facts of the case are that petitioner filed a suit for recovery of Rs. 4,54,16,980/- against the respondents. In the said suit an application was filed by the petitioner under Order 38 Rule 5, CPC, wherein it was prayed that property of respondent No. 1 be attached before judgment. The application was contested by the respondent No. 1 on various grounds. Counter claim was also filed by the respondent No. 1 for recovery of Rs. 36.26 crores. After hearing the parties, learned Court below dismissed the application filed by the petitioner, against which present petition has been filed.

(2.) Learned Counsel for the petitioner submits that petitioner is having every apprehension that it is not possible to get the decree executed which will ultimately be passed in favour of the petitioner. It is submitted that respondent No. 1 is based at Mumbai having no immovable property in Indore. It is submitted that in the facts and circumstances of the case learned Court below committed error in dismissing the application filed by the petitioner. Learned Counsel placed reliance on the decision in the matter of Rajendran Vs. Shankar Sundaram, 2008 2 MPLJ 495, wherein Hon'ble Apex Court has observed that while exercising its jurisdiction under Rule 5 of Order 38 the Court is required to form a prima facie opinion at the stage and need not go into the correctness or otherwise of all the contentions made by the parties. It is submitted that petition filed by the petitioner be allowed and impugned order passed by learned Court below be set aside.

(3.) Shri Vishal Phal, learned Counsel for the respondent No. 1 submits that respondent No. 1 is a listed company. Respondent No. 1 is doing job work at Indore. The total work of respondent with the Indore Development Authorities is of Rs. 1,75,00,000/- which will take another six months for completion of work. It is submitted that respondent No. 1 is having maintenance contract for the period of three years, therefore, there cannot any apprehension that if any decree is passed against respondent No. 1, then the same shall not be satisfied. Learned Counsel further submits that respondent No. 1 has filed counter claim for recovery of Rs. 36 crores against the petitioner which has already been replied by the petitioner in the month of January, 2011, but in spite of lapse of more than one year no step have been taken by the petitioner for early disposal of the suit. Learned Counsel further placed reliance on a decision in the matter of Gagrat and Co. (M/s) Vs. Ismail,1964 MPLJ 34, wherein it was held that "an order of attachment before judgment cannot be made on the mere asking of the plaintiff. Before making the order the Court must be satisfied not only that the defendant is really about to dispose of his property or about to remove it from its jurisdiction but also that the disposal or removal is with intent to obstruct or delay the execution of any decree that may be passed. There must be some material on record to indicate that the satisfaction was not illusory". Learned Counsel submits that since there is nothing on record on the basis of which it can be said that decree if any is passed in favour of petitioner shall not be executed, therefore, learned Court below committed no error in dismissing the application. Learned Counsel further placed reliance in a decision in the matter of Raman Vs. Solanki Traders, 2008 1 MPHT 426, wherein Hon'ble Apex Court has held that power of attachment before judgment should be used sparingly and strictly. Merely, because the defendant is attempting to remove or dispose of his assets is not a ground to order attachment before judgment, unless the plaintiff also satisfies that he has a prima facie case. It is submitted that petition filed by the petitioner has no merits and same be dismissed. After hearing the parties at length and keeping in view, the respondent No. 1 is having huge contract of Indore Development Authority an the fact that counter claim is filed by the respondent No. 1, this Court is of the view that learned Court below has committed no error in dismissing the application filed by the petitioner. In view of this, petition has no merits and same stands dismissed. However, it is made clear that since respondent No. 1 is based at Mumbai, therefore, respondent No. 1 is directed to file an affidavit to the effect that if any decree is passed in favour of petitioner then the same shall be satisfied. It is also directed that learned Court below shall issue Humdust notice for the service of respondent No. 2 which shall be given to the petitioner and shall proceed with the suit so that the suit be decided within a period of six months.