SUNIL GUPTA Vs. RALLIES INDIA LTD & ORS

JUDGEMENT

(1.) M/s. Rallies India Ltd. filed a suit against M/s. Munnalal Ballabadas and its partners, namely Vallabh Das, Sudhir Gupta and Sunil Gupta. The amount sought to be recovered is around Rs. 9,00,000/-. In this an application was filed under Order 38, Rule 5, Civil Procedure Code. Attachment before judgment was sought. The Court below has come to the conclusion that the property described as Ganesh Dal Mill and a residential house are liable to attachment in terms of Order 38, Rule 5, C.P.C.

(2.) The learned Counsel for the petitioner submits that the Court below has not recorded any finding in terms of Order 38, Rule 5. According to him, the Court below should have recorded a positive finding that attachment before judgment is necessary because the defendants are likely to dispose of the whole or any part of their property or that they are going to remove the whole or any part of the property from the local jurisdiction of the Court. It is further argued that no further finding has been recorded that Ganesh Dal Mill is owned by Sunil Gupta, Vallabh Das and Sudhir Gupta. It is argued that the findings recorded in paras 7 and 8 are not conclusive findings. It is also argued that these findings are not based on any material on record. The further argument raised is that if some property has already been disposed of before the filing of the suit then the question of passing an order of attachment in terms of Order 38, Rule 5 would not arise.

(3.) The learned Counsel for the petitioner has placed reliance on a decision of the Karnataka High Court Palghar Rolling Mills Pvt. Ltd. v. Visvesvaraya I and S. Ltd., 1985 AIR(Kar) 282. In para 9, it was observed as under: