Indian Bank Vs. Ashoka Builders and Promoters and ors. - Court Judgment

Excerpt:
civil procedure code 1908 - section 151--injunction when can be granted--injunction against whom can be granted.; that order of ad intering injunction can be passed under section 151 cpc against a party who is neither imp leaded in he suit nor any relief is claimed against it. - - the plaintiff has also prayed for attachment before judgment of the aforesaid properties- for the suit amounts as well as the cost of the suit and interest to safeguard the interests of the plaintiff bank and the defendants 1 to 10 be directed to furnish security for the amounts in the suit, interest as well as the costs of the suit by way of bank guarantee.s.c. jain, j.(1) the facts giving rise to this application are that the defendants were sanctioned a secured overdraft loan of rs 1.5crores on the basis of a request made by m/s ashoka builders and promoters, hereinafter called defendant no. 1, as contained in their letter written to the indian bank, chandni chowk branch delhi, for depositing the same as security with dalmia developers & promoters ltd for development of 1/4th share of edward keventers' land in chanakaya puri and for construction of multi storeyed building thereon. admittedly rs 2 crores are lying with dalmia developers & promoters ltd and edward keventers (successors) pvt. ltd. as security on behalf of the defendants in pursuance to the memorandum of understanding duly executed between the defendants and dalmia developers & promoters ltd. (2) some disputes arose between the defendants and dalmia developers & promoters ltd regarding the agreement duly arrived at between them as a result of which the plaintiff bank filed this suit for recovery of rs2,79,84,444.00 under order 34 civil procedure code against ashoka builders and promoters and its partners and others. in the suit the plaintiff bank filed this application under order 39 rules 1-2 and order 41 rule i and section 151 civil procedure code seeking interim relief that the defendants be restrained from alienating, disposing of or transferring or parting with possession of the property or portions of property no. 11-k/60b, lajpat nagar, new delhi, owned by defendants 7 to 10, property no. b23, greater kailash part i new delhi, flat no.4 on the ground floor and hall no. 12, basement floor, ashoka palace 877, east park road, karol bagh, new delhi owned by defendant no.1, and agricultural land bearing khasra no. 146, 149, 150, 154, 155, 156, 157 village chandpur, kashipure, nanital, u.p. measuring about 13.07 'nacres, and flat no.202 ashoka palace, 877 east park road, karol bagh owned by defendant no.2, flat no.204 ashoka palace owned by defendant no.5 and properties bearing no.926, 927, 933 gali tota maida. nahar sahadat khan, behind novelty cinema, delhi now owned by defendant no. 3 and land of property no. 877 east park road, karol bagh new delhi till the disposal of the suit. the plaintiff has also prayed for attachment before judgment of the aforesaid properties- for the suit amounts as well as the cost of the suit and interest to safeguard the interests of the plaintiff bank and the defendants 1 to 10 be directed to furnish security for the amounts in the suit, interest as well as the costs of the suit by way of bank guarantee. (3) the plaintiff/applicant has also sought orders for attachment before judgment of the amount lying in vyasa bank, connaught circus, new delhi in the name of dalmia developers & promoters ltd and edward keventers (successors) pvt ltd in the form of fixed deposit or in any manner. request has also been made that dalmia developers & promoters ltd and edward keventers (successors) pvt ltd. be also directed to furnish security for the suit amount by way of bank guarantee. (4) an ad interim injunction order was passed on 19.10.1992, restraining the defendants i to 10 from alienating, disposing of or parting with possession of the mortgaged properties as alleged in the plaint. on the basis of the undertaking given by the counsel for dalmia developers & promoters ltd and edward keventers (successors) pvt ltd, status quo with respect to amount lying in vyasa bank connaught place new delhi in their account was ordered to be maintained. (5) dalmia developers & promoters ltd and edward keventers (successors) pvt. ltd. have contested this application and argued that they are not parties in the main suit and no relief has been claimed against them by the plaintiff bank. there is no privity of contract between the bank and dalmia developers & promoters ltd. and edward keventers (successors) pvt. ltd. and in such circumstances, no interim order can be passed against them restraining them from operating their bank account in vyasa bank, connaught place new delhi. according to the learned counsel for dalmia developers & promoters ltd. and edward keventers (successors) pvt. ltd. this is a mortgage suit and securities of the immoveable properties already submitted by the defendants are more than sufficient to meet the decretal amount in case decree is passed. according to him, at the most an injunction order can be passed against them for not making payment of rs. 2 crores in their hands to the defendants but it cannot be attached on the request of the plaintiff bank. (6) counsel further pointed out that litigation between the defendant and dalmia developers & promoters ltd and edward keventers (successors) pvt ltd regarding specific performance of the-alleged agreement and injunction are also pending and till the outcome of those litigations, this amount of rs 2 crores has not become payable and it cannot be attached. (7) i have gone through various documents, pleadings and the law on this point. there is no dispute about the fact that the plaintiff bank advanced rs 1.5 crores on the request of the defendant as a part of the security to be deposited with dalmia developers & promoters ltd and edward keventers (successors) pvt ltd. rs 50 lakhs was deposited by the defendant thus making a total deposit of rs 2 crores with dalmia developers & promoters ltd and edward keventers (successors) pvt ltd as refundable security. it is also apparent from the record that this amount of security would be paid to the plaintiff bank, when it will become payable and an irrevocable letter of authority was issued in favor of plaintiff bank by the defendants to collect this amount of rs 2 crores as and when the amount becomes payable in view of the memorandum of understanding duly entered into between dalmia developers & promoters ltd and the defendants. it is also on record that manager of the plaintiff bank wrote to dalmia developers and promoters on 1.6.1990 mentioning about the irrevocable letter of authority in their favor to collect rs 2 crores from them as and when it becomes payable in view of the memorandum of understanding. the defendants also wrote to dalmia developers and promoters that irrevocable letter of authority was given in favor of indian bank to collect rs 2 crores when the amount becomes payable to them as per the memorandum of understanding. (8) there is also no dispute that in the suit for injunction against dalmia developers and promoters and edward keventers (successors)pvt ltd before the subordinate court interim injunction was passed restraining them from removing the amount from vyasa bank. (9) the only point which requires consideration in this case is whether this amount of rs 2 crores lying in the hands of dalmia developers and promoters and edward keventers (successors)pvt ltd who are not party to this suit are liable to be attached. in this regard, my attention has been drawn towards a decision of a division bench of this court in tax recovery officer vs punjab & sind bank in fao (os) 213/85 decided on 53.86. relying upon the decision of this court reported as 1976 (104) itr 494 and builders supply corporation vs . union of india : [1965]56itr91(sc) and : [1976]104itr20(delhi) where it was held that law has to be construed in such a manner as to enable the court to safeguard the same, the learned judges held that an injunction order can be issued under section 151 cpg against a person who may not be a party in the main suit. in view of (his judicial pronouncement the plea taken by the counsel for dalmia developers and promoters ltd and others that they being not a party to the main suit, are not subject to any order passed by this court is not tenable. (10) the question whether the security deposit for carrying out contract is a debt and liable to attachment came for consideration before a division bench of lower burma chief court in s.b.dass vs. star mutha chetty 56 indian cases 948. after considering the relevant provisions of the code of civil procedure, it was held that an attaching creditor can attach a debt although the debt is not then payable, but it must be an existing debt. it was observed that the security, if it had been in govt paper and kept separate would have remained the contractor's property until he had forfeited it, and if paid cash and that cash was mixed with other funds, the public witness .d. would hold that amount in trust for the contractor, until it became forfeited.until forfeiture there would be a debt due by the pw.d. to the contractor,although it was hot payable until the completion of the work. it is liable to be attached in an execution of a decree against the contractor under section 151 cpc, though the amount is in the hands of the department (11) in this case a sum of rs 2 crores is admittedly lying with dalmia developers' and promoters and edward keventers (successors) pvt ltd as refundable security. this amount is payable to the plaintiff bank when it becomes payable as per memorandum of understanding between the defendants and dalmia developers and promoters ltd. disputes between the defendants and dalmia developers and promoters with regard to memorandum of understanding is still pending and thereforee this amount has not become payable at the moment but to safeguard the interest of the plaintiff bank, this amount of rs 2 crores which is lying with dalmia developers and promoters and edward keventers (successors) pvt ltd and which is a debt has to be preserved for the benefit of the plaintiff bank. no doubt, other properties of the defendants' are also lying mortgaged with the plaintiff bank but there is no denial of the fact that rs 2 crores is also lying as refundable security and payable to the bank when it becomes due and payable, the security amount is also to be protected and preserved. (12) in view of the circumstances explained above, defendants 1 to 10 are restrained from alienating, disposing of or parting with possession of the mortgaged property as alleged in the plaint till the disposal of the suit. it is further ordered that status quo with respect to the amount to the extent of rs 2 crores lying in vyasa bank d35 connaught place new delhi in the name of dalmia developers and promoters and edward keventers (successors) pvt ltd is hereby ordered to be maintained till the disposal of the suit. this order is passed on prima facie view of the matter without any prejudice to the parties on the merits of the case. (13) la. stands disposed of. the matter be listed before the deputy registrar on 25.2.1993 for completion of pleadings, filing documents and admission/demal and thereafter the matter be listed before court on 30.4.93 for framing of issues.