JAYTEE EXPORTS Vs. NATVAR PAREKH INDUSTRIES LIMITED

JUDGEMENT

(1.) An Interim order was granted on 18-4-2001. Under the said interim order the bank account of the defendant/respondent No.1 was attached to the extent of a sum of Rs. 37,89,000/-. On behalf of the respondent No.1 this interim order is sought to be vacated. The learned counsel wanted to make his submissions on the question of law. He did not want to use any affidavit. He sought to proceed on the basis of the materials on record. He submitted that on the face of the pleadings the Interim order could not be maintained as against respondent No.1. According to him, respondent No.1 isonly an agent of a known principal, being the Respondent No.4. The real claim of the plaintiff is as against the principal. From the materials produced he had pointed out that the name of the principal, respondent No.4 herein, is apparent and is known. As such no claim could be maintained as against the agent, in view of Section 230 of the Contract Act. He further contended that a bill of Lading is governed by a limitation of one year. The alleged transaction took place in January, 1998. Therefore, the suit presented sometimes in April, 2001, on the face of it. is barred by limitation. He then contends that Order 38 Rule 5 of the Code of Civil Procedure does not speak of any debt or a determined amount. In the present case, the amount is quantified and there is nothing to be determined. As such there cannot be any question of attachment before judgment. He further contends that no part of the cause of action arose within the jurisdiction of this Court. The goods were shipped at Cochin and delivered at Dubal. Leave granted under Clause 12 should, therefore, be revoked.

(2.) On the other hand the learned Counsel for the petitioner pointed out that by reason of Section 230 of the Contract Act the agent is equally liable. He then contended that Order 38 Rule 5 CPC does not make any distinction with regard to debt or ascertained sum. It is only when the conditions laid down under the Order 38 Rule 5 are satisfied an order of attachment can be issued. He also relied on Sections 23 and 28 of the Contract Act and contended that by reason thereof the suit is very much maintainable before this Court.

(3.) I have heard both the learned counsel at length.