POONAM CHANDA Vs. TAKKAR ELECTRONICS

JUDGEMENT

(1.) By this order I propose to dispose of three revisions being C.R. No. 3480 of 1997, C.R. No. 3479 of 1997 Adarsh Sharma v. Takkar Electronics (Regd.) and Anr.' and C.R. No. 3481 of 1997 'Deepak Sharma v. Takkar Electronics and Anr.', which arise from somewhat similar facts and basis of law. Three suits were filed by three different plaintiffs against M/s Takkar Electronics and another, defendants for recovery of money. The total amount recoverable in all the 3 suits is to the extent of Rs. 2,60,000/- besides interest and costs. The suit was contested by the defendants, the claim of the plaintiffs was denied. During the pendency of the suit an application under Order 38 Rule 4 and 5 and Order 39 Rule 1 and 2 of the CPC was filed by the plaintiffs for attachment before judgment in relation to the properties specified in paragraph 4 of the application. It was stated in the application that the defendants are intending to abscond or leave the limit of jurisdiction of the trial court, they have heavy liabilities and they would be able to frustrate the decree which is likely to be passed by the Court in favour of the plaintiffs. It was further contended that the properties are being negotiated for sale to 3 parties. Reply to this application was filed where these averments were disputed and it was stated that the property at No. 712 to 718 Ward No. 3, Panipat, was joint property of all the three brothers and no partition was taken place, while another property was sated to be mortgaged to the State Bank of India for a sum of Rs. 10 lacs. It was further stated that the suit is likely to be dismissed, defendants had not intention to leave the territorial jurisdiction of the Court and they were not trying to remove any part of their property from the jurisdictional limit of the Court.

(2.) The learned trial court vide its order dated 28.10.1997 dismissed the application of the plaintiffs in ail the three suits being suit Nos. 841/1996, 843/1996 and 844/1996, giving rise to these three revision petitions. The learned counsel while impugning the order in these revisions, placed reliance upon the judgment of this Court in the case of 'Nagpur Sales Limited v. Arjan Dev Verma, (19982)119 P.L.R. 372 to argue that order of attachment before the judgment ought to have been passed. This contention of the learned counsel for the petitioners is certainly misconceived because provisions of Order 38 Rule 4 & 5 can be invoked on very strong facts and there should be some positive averments before the order for attachment before judgment could be passed in favour of the plaintiff. Vague allegations cannot constitute and satisfy the ingredients underlining these provisions. The coercive directions postulated within the scope of Order 38 of the Code cannot be taken recourse to by the applicants in a casual manner. The applicant must have not only a prima facie case but should be able to satisfy the Court that the grounds pleaded satisfy the ingredients under Order 38 Rule 5. Such as that the defendant is bound to leave the jurisdiction of the Court or is attempting to defray the decree which is likely to be passed in favour of the plaintiffs. In this case, it is the case of applicants themselves that the defendants own considerable properties immovable and movable in Panipat within the territorial jurisdiction of the Court. It has further come on record that an immovable property is even mortgaged to the Bank. The other property which is not charged to any person and is free from encumbrances as no proof of any kind has been placed on record that the defendants non applicants are intending to dispose of the property. This averment of trying to sell the property has been specifically disputed. In these circumstances, one cannot" see any error in the judgment of the learned trial Court rejecting the said application. The case of Nagpur Sales (supra) has no application to the facts of the case in hand, though it appears from the reading of the order that the application under Order 38 Rule 4 and 5 has been considered and has been rejected vide the impugned order. The case in regard to injunction has neither been discussed nor it appears that the application for injunction has been disposed of.

(3.) While declining to interfere in the impugned order it would be necessary to observe that if an independent application under Order 39 Rule 1 is filed, the learned trial Court would entertain and dispose of the same in accordance with law. This is necessary for the reason that the learned trial Court has neither specifically dismissed the application nor there is any discussion on the relief of injunction. It needs to be noticed that there is hardly much dispute in regard to the liability thus the applicant should be given liberty to file a fresh application for injunction in relation to the property which is admittedly a joint property and has not been partitioned. The other property is already mortgaged to the bank. The question of invoking any provision against this suit property would not arise in the facts of the case.