(1.) The present challenge is directed against an order, whereby an application filed by the plaintiff/opposite party under Order XXXVIII Rule 5 of the Code of Civil Procedure was adjudicated upon by directing the defendant/petitioner to furnish security of a bank guarantee of Rs.8,50,000/- to be drawn on any nationalised bank by October 05, 2018 and that the said security should be continued till disposal of the suit.
(2.) Learned counsel for the petitioner argues that none of the ingredients of Order XXXVIII Rule 5 of the Code of Civil Procedure were reflected from the impugned order. The trial court only proceeded on the premise that it was satisfied about the transactions held between the parties and their latest position, which was insufficient in law to pass a stringent order under Order XXXVIII Rule 5 of the Code of Civil Procedure.
(3.) Learned counsel for the petitioner places reliance on the contents of certain paragraphs of the application for attachment before judgment, in particular paragraph nos. 22 and 23 thereof, to show the scope of the application-in-question. Learned counsel for the petitioner further places reliance on the contents of the affidavit-in-opposition to the said application to impress upon this Court that the petitioner had a specific counter-case for set off. It is argued that the trial court acted without jurisdiction in passing the order under Order XXXVIII Rule 5 of the Code of Civil Procedure in a cursory manner merely paying lip-service to the provisions of the statute, but not adverting to the facts of the case vis-a-vis such provision.