V.G. Quenim and anr. Vs. Bandekar Brothers Pvt. Ltd. - Court Judgment

Excerpt:
civil -property -  suit for recovery - trial court passed two sets of order for the same relief, one restraining the defendant-applicants from alienating the property and second, attaching the property before delivery of the judgment - order passed by the trial court directing the defendant-appellants to furnish security, failing which the property shall come under attachment, is liable to be set aside - however the order of the trial court granting injunction in favour of the plaintiff-respondent is upheld - defendant directed to give an undertaking not to part with the assets. civil procedure code, 1908 - order 38--attachment before judgment--suit for recovery of money--application by plaintiff to restrain defendant-appellant by temporary injunction from alienating property mentioned in application--relief granted by trial court--another application for attachment of property before judgment--trial court directed defendant to furnish security failing which suit property shall come under attachment--appeal against order dismissed by high court--appeal--held, trial court was not correct in passing two sets of order for same relief--impugned order to extent of attachment of property was liable to be set-aside--directions issued in view of the fact that defendant-appellant despite injunction had transferred some property for not parting with the share of sister concern of the appellant.;appeals disposed of - indian penal code, 1890.sections 304, part ii r/w section 34: [dr. arijit pasayat, harjit singh bedi & asok kumar ganguly, jj] culpable homicide - common intention - three accused persons alleged to have caught hold of deceased on being told by main accused and main accused suddenly took out knife from his pocket and stabbed deceased - evidence against three accused persons was not specific held, their conviction liable to be set aside. whereas conviction of main accused is proper. order1. leave granted.2. the plaintiff-respondent herein filed four separate suits for recovery of money against the defendant-appellants herein. it is alleged that, simultaneously, the plaintiff-respondent moved two sets of applications, i.e. one for grant of temporary injunction, restraining the defendant-appellants from alienating the property mentioned in the schedule to the application, the second for attachment of property before the judgment. the trial court granted injunction (i.a. no. 50), as prayed for and the defendant-appellants were restrained from alienating or parting with the property mentioned in the schedule to the application. the trial court also passed an order directing the defendant-appellants to furnish security, failing which the suit property mentioned in the schedule would come under attachment, before the judgment. it is not disputed that the security as directed has not been furnished. however, the defendant-appellants preferred an appeal before the high court. the high court dismissed the said appeal. aggrieved, the defendant-appellants have filed these appeals.3. after we heard the matter, we find that the trial court was not correct in passing two sets of order for the same relief; one restraining the defendant-appellants from alienating the property and second, attaching the property before the delivery of the judgment. we are, therefore, of the view that the order passed by the trial court, directing the defendant-appellants to furnish security, failing which the property shall come under attachment, is liable to be set aside. however, we are in agreement'with the trial court granting injunction in favour of the plaintiff-respondent.during the course of the argument, it has been urged on behalf of the plaintiff-respondent that despite the order of injunction, the defendant-appellants have sold 1500 tones of iron ores worth rs. 55 lacs to their sister concern, which is owned by their close relative and, therefore, to that extent the interest of the plaintiff-respondent be safeguarded. we find merit in the submission. for that purpose, the defendant-appellant shall give an undertaking within four weeks from today before the trial court that they will not part with the shares of m/s. vilman packaging pvt. ltd., house no. 436 at miramar, panaji and the mining machinery. however, it is made clear that any observation made either by the trial court or the appellate court shall not come in the way of the trial court in deciding the matter on merits.4. in the aforesaid view of the matter, the order dated 13.12.2001 is set aside and the appeals are, accordingly, disposed of in the aforesaid terms.

Judgment:
ORDER

1. Leave granted.

2. The plaintiff-respondent herein filed four separate suits for recovery of money against the defendant-appellants herein. It is alleged that, simultaneously, the plaintiff-respondent moved two sets of applications, i.e. one for grant of temporary injunction, restraining the defendant-appellants from alienating the property mentioned in the schedule to the application, the second for attachment of property before the judgment. The trial court granted injunction (I.A. No. 50), as prayed for and the defendant-appellants were restrained from alienating or parting with the property mentioned in the schedule to the application. The trial court also passed an order directing the defendant-appellants to furnish security, failing which the suit property mentioned in the schedule would come under attachment, before the judgment. It is not disputed that the security as directed has not been furnished. However, the defendant-appellants preferred an appeal before the High Court. The High Court dismissed the said appeal. Aggrieved, the defendant-appellants have filed these appeals.

3. After we heard the matter, we find that the trial court was not correct in passing two sets of order for the same relief; one restraining the defendant-appellants from alienating the property and second, attaching the property before the delivery of the judgment. We are, therefore, of the view that the order passed by the trial court, directing the defendant-appellants to furnish security, failing which the property shall come under attachment, is liable to be set aside. However, we are in agreement'with the trial court granting injunction in favour of the plaintiff-respondent.During the course of the argument, it has been urged on behalf of the plaintiff-respondent that despite the order of injunction, the defendant-appellants have sold 1500 tones of iron ores worth Rs. 55 lacs to their sister concern, which is owned by their close relative and, therefore, to that extent the interest of the plaintiff-respondent be safeguarded. We find merit in the submission. For that purpose, the defendant-appellant shall give an undertaking within four weeks from today before the trial court that they will not part with the shares of M/s. Vilman Packaging Pvt. Ltd., house No. 436 at Miramar, Panaji and the mining machinery. However, it is made clear that any observation made either by the trial court or the appellate court shall not come in the way of the trial court in deciding the matter on merits.

4. In the aforesaid view of the matter, the order dated 13.12.2001 is set aside and the appeals are, accordingly, disposed of in the aforesaid terms.