Judgment:
M. Chockalingam, J.
1. These two intra-court appeals challenge a common order of the learned Single Judge of this Court made in two applications in Application Nos. 5061 and 5657 of 2008 whereby the appellants herein asked for a direction to the respondents therein to furnish security for the suit claim and in default attachment before judgment under Order 38 Rule 5 of Civil Procedure Code.
2. The Court heard the learned Counsel for the appellants.
3. No case is made out, in the considered opinion of the Court, for granting the relief, and the order by the learned Single Judge does not require disturbance in the hands of this Court. This Court is of the considered view that it is not a fit case where the appeals could be admitted for the following reasons.
4. The case of the appellants is as follows:
The suits were filed seeking recovery of money against the partnership firm and also the partners namely the defendants 2 to 4. Even as per the averments, the transaction commenced in the year 2002 and ended in 2007, and the suits were filed in the year 2008. Further the suit claims were made since defaults were committed in payment of certain amounts towards supply of goods. Thus, the transactions were continuing, and the defendants are liable to pay the suit amounts. The defendants 1, 3 and 4 did not have any properties, and the second defendant had the only property mentioned in the affidavit and also the application, and he was likely to convey the property in order to defeat the suit claim. Under the circumstances, it became necessary to file the applications for attachment before judgment.
5. The opposite party was given an opportunity for filing counter.
6. The learned Single Judge after scrutiny of the materials available and hearing the submissions made, took the view that it is not a fit case where attachment before judgment could be made and accordingly dismissed the applications. Hence these appeals at the instance of the appellant/plaintiff.
7. Advancing arguments on behalf of the appellants, the learned Counsel Mr. Prakash Goklaney would submit that it is true that the transaction of supply of goods commenced in the year 2002 and they were continuing till 2007; that there was a default; that there was a notice issued; that despite the service of notice, the defendants did not give any reply; that there was a specific claim made; that in the entire counter, the contesting respondent did not deny the allegations made; that he has spoken denying the liability; that the specific averment that he is about to sell the property was not denied; that it is not proper to state that it is barred by limitation since it is a continuing transaction; that the learned Single Judge has not adverted his attention to either the factual or the legal position; that under the circumstances, it is a fit case where the relief should have been granted, and it is a fit case for admission.
8. The Court after hearing the learned Counsel and looking into the materials and in particular, the order under challenge, is of the considered opinion that the order of the learned Single Judge does not require any interference.
9. It is not that whenever any claim for recovery of money is made before a Court of civil law, every application filed for attachment before judgment should be ordered. It is well settled proposition of law that in a given case, asking for a direction to the defendants to furnish security and in default an order of attachment is an extraordinary remedy. It is also settled proposition of law that in a given case if the allegations are bald, the Court has no option than to deny the relief. What is all mentioned in paragraph 11 of the affidavits in support of the applications is as follows:
11. I reliably understand that the 2nd respondent herein is making hectic efforts to dispose of the land to keep it out of the reach of the creditors and particularly me. I have come to understand that the real estate agents in the area have been pressed into service for the purpose and this fact is known to the people stationed locally. If the second respondent is allowed to sell the property, I would be left with no remedy to recover my suit claim and any decree that may be passed would only be on paper, incapable of execution. This would lead to great hardship and loss and could well result in serious miscarriage of justice also.
10. The very reading of the above would clearly indicate that the allegations are bald. There is no specific averment or allegation made. In the absence of any specific allegation, it is well settled by the Apex Court and also by this Court that this extraordinary remedy should not be granted. It is true that the Court is vested with powers to exercise under Order 38 Rule 5 of CPC. But, it remains to be stated that if it is a fit case, it should be exercised. The learned Single Judge in order to dismiss the applications fortified the decision of the Apex Court reported in (2008) 2 MLJ 1058 (SC)(Raman Tech & Process Engg. Co. and Anr. v. Solanki Traders) wherein the Apex Court has held as follows:
5. The power under Order 38 Rule 5 C.P.C. is a drastic and extraordinary power. Such power should be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of Court settlements, under threat of attachment.
6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 C.P.C. Courts should also keep in view the principles relating to grant of attachment before judgment (See Prem Raj Mundra v. Md. Maneck Gazi : AIR 1951 Cal. 156, for a clear summary of the principles).
11. It would be quite clear that either filing of a suit for recovery of money or the averment in the affidavit cannot by itself suffice for granting the relief of attachment before judgment. In order to get the relief of direction for furnishing security or in default, attachment before judgment, the plaintiff who seeks the remedy must make a specific averment which would warrant for getting such a relief. In the case on hand, it is quite absent in the considered opinion of the Court. It is a drastic and extraordinary power vested in the hands of the Court under Order 38 Rule 5 of CPC. The Court need not go into at this stage whether the claim is barred by limitation or not. So long as ground is not made out for exercising the powers of the Court under Order 38 Rule 5, the learned Single Judge was perfctly correct in dismissing the applications. Both the appeals do not require admission. Accordingly, they are dismissed. No costs. Consequently, connected MP is also dismissed.