K S BAKSHI Vs. JAGJIT SINGH SABHARWAL

JUDGEMENT

(1.) THIS revision arises out of the order dated 11.5.1999 passed by the Civil Judge (Senior Division) Talcher on an application filed by the plaintiff-opposite party under Order 38, Rule 5 of the Civil Procedure Code.

(2.) OPPOSITE party is the plaintiff in Money Suit No. 18 of 1998 and the present petitioner is the defendant. Suit has been filed claiming damages to the tune of Rs. 13,00,000/- on account of breach of agreement entered into between the parties. The allegations in the plaint are that the opposite party is the exclusive owner of two Tippers engaged under the disposal of the petitioner for the purpose of transporting coal within the Mahanadi Coal Fields Limited at Talcher. The agreement was entered into by the petitioner as Director of M/s. Pawan Putra Hanuman Transport Ltd., as the first party and wife of the opposite party as the second party. Said agreement was executed on 4.9.1997 as per the terms of which the tippers owned by the plaintiff- opposite party were stipulated to be engaged by the defendant-petitioner until clearance of all the dues of the plaintiff-opposite party towards their finance by the Telco. It is further alleged by the plaintiff-opposite party that the defendant-petitioner violated the terms of the agreement by allowing removal of both the tippers from its premises unlawfully. Plaintiff-opposite party filed an application under Order 38, Rule 5 of the C.P.C. on the allegations that after coming to know about the filing of the suit for realisation of Rs. 13,00,000/- the defendant-petitioner is trying to dispose of all the properties and close the bank accounts and to shift the company to a place beyond the jurisdiction of the court with a view to defraud the plaintiff-opposite party and frustrate the execution of the decree which may be passed in favour of the plaintiff-opposite party.

(3.) SHRI S.P. Mishra, learned counsel appearing for the petitioner submits that the suit is not maintainable against the petitioner as the petitioner has not entered into an agreement with the plaintiff-opposite party and the petitioner being only a director of the company which has entered into an agreement, the company has to be made a party to the suit and the petitioner as Director of the Company has no liability. He further submitted that on the basis of an affidavit of one Manoranjan Jena no such order could have been passed as source of information of Manoranjan Jena has not been disclosed in the affidavit. He further submitted that the impugned order is not a notice but an actual order of attachment. Learned counsel for the opposite party has submitted that as against the affidavit of Manoranjan Jena there was no material available before the trial court or from the side of the present petitioner controverting the said allegations and therefore no illegality can be found in the order passed by the learned trial court.