Alwar Prakashan and anr. Vs. K.K. Shrimal and anr.

Decided On : Oct-18-2005

Court : Rajasthan

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
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			'appealno' => 'Civil Misc. Appeal Nos. 2477 to 2479 of 2004',
			'appellant' => 'Alwar Prakashan and anr.',
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			'casename' => 'Alwar Prakashan and anr. Vs. K.K. Shrimal and anr.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Sections 163-A & 166; [R.M. Lodha, Shiv Kumar Sharma & Ashok Parihar, JJ] Award passed by Tribunal under Section 163-A  Nature of  Held, The award passed by Tribunal under Section 163-A of Act under structured formula is a final award and once that award has been passed, no further award under Chapter XII of M.V. Act could be passed by the Tribunal. The provisions contained in Sections 163-A and 166 of Act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. The claimant must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the M.V. Act but not under both. The award under Section 163-A is final and cannot be described as interim and no proceeding for compensation under Section 166 can be undertaken once the award is declared under Section 163-A.  -  10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. 13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs.',
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			'counselplain' => ' Prakash Chandra Jain, Adv.',
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			'judgement' => '<p style="text-align: justify;">Khem Chand Sharma, J.</p><p style="text-align: justify;">1. Since common question of law and facts are involved in all these appeals filed by the defendant-appellants arising out of the orders allowing the applications filed by the plaintiffs under Order 39, Rules 1 and 2, CPC as also the applications filed under Order 38, Rule 5, CPC, therefore, they are being decided by this common judgment.</p><p style="text-align: justify;">2. Briefly stated the facts of the case are that plaintiffs filed civil suits for recovery of loan amount against the defendants. Along with the suits, the plaintiffs filed applications under Order 39 Rules 1 and 2, C.P.C. alleging therein that the defendants with a view to defrauding the creditors intend or threaten to dispose of the property and prayed to restrain the defendants from selling, mortgaging or alienating the property. The plaintiffs also filed applications under Order 38 Rule 5, CPC alleging therein that the defendants with intent to obstruct and delay the execution of decree that may be passed against them are about to dispose of the property mentioned in the applications. The learned Trial Court, having found prima facie case, balance of convenience and irreparable loss in favour of the plaintiffs allowed the applications filed under Order 39 Rules 1 and 2, CPC vide different orders and granted temporary injunctions thereby restraining the defendants from selling, mortgaging, creating any charge and/or transferring in any manner any part of the property shown in the applications for temporary injunction. The Trial Court also allowed the applications filed under Order 38 Rule 5, CPC and directed the defendant appellants to furnish an undertaking and surety bond within a period of one month to produce and place at the disposal of the Court the property mentioned in para 4 of the application in case the plaintiffs' suits are decreed, failing which orders shall be issued to attach the property before judgment.</p><p style="text-align: justify;">3. Before proceeding further, it is pertinent to mention here that in all 37 creditors from whom the defendants took loan filed separate suits for recovery of their loan amount totaling to Rs. 1,10,10000 along with applications under Order 39 Rules 1 and 2, CPC praying same relief and the learned Trial Court vide different orders granted same relief in favour of the plaintiffs, against which the defendants preferred 33 separate appeals before this Court, out of which 30 appeals have been decided today by common judgment. Four Appeals bearing Nos. 1115/2005, 1116/ 2005, 1117/2005 and 1127/2005 have been filed challenging the orders passed on the applications filed under Order 38 Rule 5, CPC in Civil Suit Nos. 144, 130, 127 and 129 of 2003, respectively. It may be stated that in the above four civil suits the defendants did not challenge the orders passed on the applications filed under Order 39 Rules 1 and 2, CPC and thus the orders passed by the Court below on the applications under Order 39 Rules 1 and 2, CPC have attained finality. In this view of the matter, 30 appeals have become virtually infructuous as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC shall remain intact in the above mentioned four suits. It also need be stated that relief of interlocutory injunction against the defendants in all the suits was prayed for against one and the same property,</p><p style="text-align: justify;">4. So far as present 3 appeals are concerned, it may be mentioned that the plaintiffs along with their suits filed applications under Order 38, Rule 5, CPC as also under Order 39, Rule 1 and 2, CPC and, therefore, the defendants have challenged both the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC and that being the reason the present three appeals are decided by separate judgments.</p><p style="text-align: justify;">5. While deciding four appeals by a separate judgment this Court observed that since the relief of attachment in all the suits was prayed for against one and the same property, therefore, the analogous conclusion would be that these four appeals have become virtually infructuous, inasmuch as even if they are allowed, the order to place and produce the property at the disposal of the Court shall remain intact in 30 suits.</p><p style="text-align: justify;">6. So far as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC are concerned, the main thrust of the argument of Dr. P.C. Jain, learned Counsel appearing for the defendant-appellants is that the suits of the plaintiffs are not maintainable, inasmuch as there was no privity of Contract between the plaintiffs and the defendants. In support of his argument, Dr. Jain referred to the averments made in the plaint as also the cross-examination of one of the plaintiffs Rajesh Agrawal (in appeal No. 1116/2005) on his affidavit submitted in support of his application filed under Order 38, Rule 5, C.P.C., wherein he has admitted that defendant M/s. Alwar Prakashan is not known to him and he handed over the cheque to one Rakesh, Financial Advisor, who in turn handed over the cheque to defendants.</p><p style="text-align: justify;">7. The learned Trial Court, on the basis of evidence and material available before itprimafacie came to the conclusion that the plaintiffs issued cheques of loan amount in favour of the defendants and those cheques were encashed and the amount of cheque was credited in the bank account of defendant and debited in the account of plaintiffs. At the stage of grant of temporary injunction, in my view, it may not be appropriate for the Court to hold a mini trial. The relief by way of interlocutary injunction is granted to mitigate the risk of injustice during the period before which the uncertainty about the legal rights asserted by the plaintiff and its violation could be resolved on the basis of evidence of the parties that may be adduced during trial of the suit. So far as the legal issue raised by the Counsel for the appellants that since there was no privity of contract between the plaintiff and the defendants, the plaintiffs have no locus standi to bring the suit concerned, the same shall be considered and decided by the Trial Court on the basis of evidence that may be adduced by the parties during trial of the suit,</p><p style="text-align: justify;">8. Another argument of Mr. Jain to assail the impugned order passed on the application under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC is confined to the provisions of Order 39, Rule 1(b) and Order 38, Rule 5, CPC. Referring the provisions of Order 39, Rule 1(b), CPC and Order 38, Rule 5, CPC, learned Counsel strenuously contended that the threat or intent to remove or dispose of property with a view to defraud creditors or whether defendants are about to dispose of their property with dishonest intention of obstructing and delaying the execution of decree that may be passed against them must be proved by definite evidence. Learned Counsel submitted that a vague affidavit deposing that the defendant is about to dispose of his property without disclosing the source of information is not sufficient to warrant an order under Order 39, Rule 1 (b), CPC and Order 38, Rule 5, CPC. In support of this argument, learned Counsel has relied upon Kalulal v. Shri Narain 1951 RLW 168 and Cosmopolitan Trading Corporation v. Engineering Sales Corporation and Ors. 2001(5) WLC Raj. 386.</p><p style="text-align: justify;">9. To appreciate the above contention, I have perused the orders impugned in these appeal and the affidavits annexed with the application filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC. There is specific averment in the applications under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC about the intention of the defendant to sell his property and the source through which the plaintiffs gathered information. The property dealer with whom the defendants contacted for the purpose of sale of his property has specifically deposed in his affidavit that the defendants contacted him on 15.9.2003 for the purpose of sale of property owned by them. In view of the deposition of property broker, the contention of the learned Counsel for the appellants has no legs to stand.</p><p style="text-align: justify;">10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.</p><p style="text-align: justify;">11. Apart from that has been stated above, it appears to me that the Trial Court while exercising discretion in granting interlocutary injunction in favour of the plaintiffs has taken into consideration all the three ingredients, viz., (i) whether the plaintiffs have got a prima facie case (ii) whether balance of convenience is in favour of the plaintiffs, and (iii) whether disallowing the prayer to grant temporary injunction would put the defendants to suffer irreparable loss. Having found all the three ingredients in favour of the plaintiffs, the Trial Court has passed the orders impugned in these appeal. In this view of the matter, the impugned orders passed on the applications filed under Order 39, Rules 1 and 2, CPC calls for no interference.</p><p style="text-align: justify;">12. The sine qua none for an order of attachment before judgment or an order demanding security before judgment is that the defendant is disposing of or is about to dispose of his property with the dishonest intention of defeating or delaying the possible decree in the suit. The Trial Court on the basis of material available before it came to the conclusion that the ingredients required to attract the provisions of Order 38, Rule 5, CPC are fulfilled. In this view of the matter, the impugned orders passed under Order 38, Rule 5, CPC call for no interference.</p><p style="text-align: justify;">13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs. The learned Trial Court is expected to dispose of the civil suits as expeditiously as possible.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Civil Misc. Appeal Nos. 2477 to 2479 of 2004',
		'appellant' => 'Alwar Prakashan and anr.',
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		'casename' => 'Alwar Prakashan and anr. Vs. K.K. Shrimal and anr.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Sections 163-A & 166; [R.M. Lodha, Shiv Kumar Sharma & Ashok Parihar, JJ] Award passed by Tribunal under Section 163-A  Nature of  Held, The award passed by Tribunal under Section 163-A of Act under structured formula is a final award and once that award has been passed, no further award under Chapter XII of M.V. Act could be passed by the Tribunal. The provisions contained in Sections 163-A and 166 of Act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. The claimant must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the M.V. Act but not under both. The award under Section 163-A is final and cannot be described as interim and no proceeding for compensation under Section 166 can be undertaken once the award is declared under Section 163-A.  -  10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. 13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs.',
		'caseanalysis' => null,
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		'counselplain' => ' Prakash Chandra Jain, Adv.',
		'counseldef' => ' G.P. Sharma, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2005-10-18',
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		'judge' => ' Khem Chand Sharma, J.',
		'judgement' => '<p style="text-align: justify;">Khem Chand Sharma, J.</p><p style="text-align: justify;">1. Since common question of law and facts are involved in all these appeals filed by the defendant-appellants arising out of the orders allowing the applications filed by the plaintiffs under Order 39, Rules 1 and 2, CPC as also the applications filed under Order 38, Rule 5, CPC, therefore, they are being decided by this common judgment.</p><p style="text-align: justify;">2. Briefly stated the facts of the case are that plaintiffs filed civil suits for recovery of loan amount against the defendants. Along with the suits, the plaintiffs filed applications under Order 39 Rules 1 and 2, C.P.C. alleging therein that the defendants with a view to defrauding the creditors intend or threaten to dispose of the property and prayed to restrain the defendants from selling, mortgaging or alienating the property. The plaintiffs also filed applications under Order 38 Rule 5, CPC alleging therein that the defendants with intent to obstruct and delay the execution of decree that may be passed against them are about to dispose of the property mentioned in the applications. The learned Trial Court, having found prima facie case, balance of convenience and irreparable loss in favour of the plaintiffs allowed the applications filed under Order 39 Rules 1 and 2, CPC vide different orders and granted temporary injunctions thereby restraining the defendants from selling, mortgaging, creating any charge and/or transferring in any manner any part of the property shown in the applications for temporary injunction. The Trial Court also allowed the applications filed under Order 38 Rule 5, CPC and directed the defendant appellants to furnish an undertaking and surety bond within a period of one month to produce and place at the disposal of the Court the property mentioned in para 4 of the application in case the plaintiffs' suits are decreed, failing which orders shall be issued to attach the property before judgment.</p><p style="text-align: justify;">3. Before proceeding further, it is pertinent to mention here that in all 37 creditors from whom the defendants took loan filed separate suits for recovery of their loan amount totaling to Rs. 1,10,10000 along with applications under Order 39 Rules 1 and 2, CPC praying same relief and the learned Trial Court vide different orders granted same relief in favour of the plaintiffs, against which the defendants preferred 33 separate appeals before this Court, out of which 30 appeals have been decided today by common judgment. Four Appeals bearing Nos. 1115/2005, 1116/ 2005, 1117/2005 and 1127/2005 have been filed challenging the orders passed on the applications filed under Order 38 Rule 5, CPC in Civil Suit Nos. 144, 130, 127 and 129 of 2003, respectively. It may be stated that in the above four civil suits the defendants did not challenge the orders passed on the applications filed under Order 39 Rules 1 and 2, CPC and thus the orders passed by the Court below on the applications under Order 39 Rules 1 and 2, CPC have attained finality. In this view of the matter, 30 appeals have become virtually infructuous as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC shall remain intact in the above mentioned four suits. It also need be stated that relief of interlocutory injunction against the defendants in all the suits was prayed for against one and the same property,</p><p style="text-align: justify;">4. So far as present 3 appeals are concerned, it may be mentioned that the plaintiffs along with their suits filed applications under Order 38, Rule 5, CPC as also under Order 39, Rule 1 and 2, CPC and, therefore, the defendants have challenged both the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC and that being the reason the present three appeals are decided by separate judgments.</p><p style="text-align: justify;">5. While deciding four appeals by a separate judgment this Court observed that since the relief of attachment in all the suits was prayed for against one and the same property, therefore, the analogous conclusion would be that these four appeals have become virtually infructuous, inasmuch as even if they are allowed, the order to place and produce the property at the disposal of the Court shall remain intact in 30 suits.</p><p style="text-align: justify;">6. So far as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC are concerned, the main thrust of the argument of Dr. P.C. Jain, learned Counsel appearing for the defendant-appellants is that the suits of the plaintiffs are not maintainable, inasmuch as there was no privity of Contract between the plaintiffs and the defendants. In support of his argument, Dr. Jain referred to the averments made in the plaint as also the cross-examination of one of the plaintiffs Rajesh Agrawal (in appeal No. 1116/2005) on his affidavit submitted in support of his application filed under Order 38, Rule 5, C.P.C., wherein he has admitted that defendant M/s. Alwar Prakashan is not known to him and he handed over the cheque to one Rakesh, Financial Advisor, who in turn handed over the cheque to defendants.</p><p style="text-align: justify;">7. The learned Trial Court, on the basis of evidence and material available before itprimafacie came to the conclusion that the plaintiffs issued cheques of loan amount in favour of the defendants and those cheques were encashed and the amount of cheque was credited in the bank account of defendant and debited in the account of plaintiffs. At the stage of grant of temporary injunction, in my view, it may not be appropriate for the Court to hold a mini trial. The relief by way of interlocutary injunction is granted to mitigate the risk of injustice during the period before which the uncertainty about the legal rights asserted by the plaintiff and its violation could be resolved on the basis of evidence of the parties that may be adduced during trial of the suit. So far as the legal issue raised by the Counsel for the appellants that since there was no privity of contract between the plaintiff and the defendants, the plaintiffs have no locus standi to bring the suit concerned, the same shall be considered and decided by the Trial Court on the basis of evidence that may be adduced by the parties during trial of the suit,</p><p style="text-align: justify;">8. Another argument of Mr. Jain to assail the impugned order passed on the application under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC is confined to the provisions of Order 39, Rule 1(b) and Order 38, Rule 5, CPC. Referring the provisions of Order 39, Rule 1(b), CPC and Order 38, Rule 5, CPC, learned Counsel strenuously contended that the threat or intent to remove or dispose of property with a view to defraud creditors or whether defendants are about to dispose of their property with dishonest intention of obstructing and delaying the execution of decree that may be passed against them must be proved by definite evidence. Learned Counsel submitted that a vague affidavit deposing that the defendant is about to dispose of his property without disclosing the source of information is not sufficient to warrant an order under Order 39, Rule 1 (b), CPC and Order 38, Rule 5, CPC. In support of this argument, learned Counsel has relied upon Kalulal v. Shri Narain 1951 RLW 168 and Cosmopolitan Trading Corporation v. Engineering Sales Corporation and Ors. 2001(5) WLC Raj. 386.</p><p style="text-align: justify;">9. To appreciate the above contention, I have perused the orders impugned in these appeal and the affidavits annexed with the application filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC. There is specific averment in the applications under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC about the intention of the defendant to sell his property and the source through which the plaintiffs gathered information. The property dealer with whom the defendants contacted for the purpose of sale of his property has specifically deposed in his affidavit that the defendants contacted him on 15.9.2003 for the purpose of sale of property owned by them. In view of the deposition of property broker, the contention of the learned Counsel for the appellants has no legs to stand.</p><p style="text-align: justify;">10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.</p><p style="text-align: justify;">11. Apart from that has been stated above, it appears to me that the Trial Court while exercising discretion in granting interlocutary injunction in favour of the plaintiffs has taken into consideration all the three ingredients, viz., (i) whether the plaintiffs have got a prima facie case (ii) whether balance of convenience is in favour of the plaintiffs, and (iii) whether disallowing the prayer to grant temporary injunction would put the defendants to suffer irreparable loss. Having found all the three ingredients in favour of the plaintiffs, the Trial Court has passed the orders impugned in these appeal. In this view of the matter, the impugned orders passed on the applications filed under Order 39, Rules 1 and 2, CPC calls for no interference.</p><p style="text-align: justify;">12. The sine qua none for an order of attachment before judgment or an order demanding security before judgment is that the defendant is disposing of or is about to dispose of his property with the dishonest intention of defeating or delaying the possible decree in the suit. The Trial Court on the basis of material available before it came to the conclusion that the ingredients required to attract the provisions of Order 38, Rule 5, CPC are fulfilled. In this view of the matter, the impugned orders passed under Order 38, Rule 5, CPC call for no interference.</p><p style="text-align: justify;">13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs. The learned Trial Court is expected to dispose of the civil suits as expeditiously as possible.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'appealno' => 'Civil Misc. Appeal Nos. 2477 to 2479 of 2004',
			'appellant' => 'Alwar Prakashan and anr.',
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			'casename' => 'Alwar Prakashan and anr. Vs. K.K. Shrimal and anr.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Sections 163-A & 166; [R.M. Lodha, Shiv Kumar Sharma & Ashok Parihar, JJ] Award passed by Tribunal under Section 163-A  Nature of  Held, The award passed by Tribunal under Section 163-A of Act under structured formula is a final award and once that award has been passed, no further award under Chapter XII of M.V. Act could be passed by the Tribunal. The provisions contained in Sections 163-A and 166 of Act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. The claimant must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the M.V. Act but not under both. The award under Section 163-A is final and cannot be described as interim and no proceeding for compensation under Section 166 can be undertaken once the award is declared under Section 163-A.  -  10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. 13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs.',
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			'judgement' => '<p style="text-align: justify;">Khem Chand Sharma, J.</p><p style="text-align: justify;">1. Since common question of law and facts are involved in all these appeals filed by the defendant-appellants arising out of the orders allowing the applications filed by the plaintiffs under Order 39, Rules 1 and 2, CPC as also the applications filed under Order 38, Rule 5, CPC, therefore, they are being decided by this common judgment.</p><p style="text-align: justify;">2. Briefly stated the facts of the case are that plaintiffs filed civil suits for recovery of loan amount against the defendants. Along with the suits, the plaintiffs filed applications under Order 39 Rules 1 and 2, C.P.C. alleging therein that the defendants with a view to defrauding the creditors intend or threaten to dispose of the property and prayed to restrain the defendants from selling, mortgaging or alienating the property. The plaintiffs also filed applications under Order 38 Rule 5, CPC alleging therein that the defendants with intent to obstruct and delay the execution of decree that may be passed against them are about to dispose of the property mentioned in the applications. The learned Trial Court, having found prima facie case, balance of convenience and irreparable loss in favour of the plaintiffs allowed the applications filed under Order 39 Rules 1 and 2, CPC vide different orders and granted temporary injunctions thereby restraining the defendants from selling, mortgaging, creating any charge and/or transferring in any manner any part of the property shown in the applications for temporary injunction. The Trial Court also allowed the applications filed under Order 38 Rule 5, CPC and directed the defendant appellants to furnish an undertaking and surety bond within a period of one month to produce and place at the disposal of the Court the property mentioned in para 4 of the application in case the plaintiffs' suits are decreed, failing which orders shall be issued to attach the property before judgment.</p><p style="text-align: justify;">3. Before proceeding further, it is pertinent to mention here that in all 37 creditors from whom the defendants took loan filed separate suits for recovery of their loan amount totaling to Rs. 1,10,10000 along with applications under Order 39 Rules 1 and 2, CPC praying same relief and the learned Trial Court vide different orders granted same relief in favour of the plaintiffs, against which the defendants preferred 33 separate appeals before this Court, out of which 30 appeals have been decided today by common judgment. Four Appeals bearing Nos. 1115/2005, 1116/ 2005, 1117/2005 and 1127/2005 have been filed challenging the orders passed on the applications filed under Order 38 Rule 5, CPC in Civil Suit Nos. 144, 130, 127 and 129 of 2003, respectively. It may be stated that in the above four civil suits the defendants did not challenge the orders passed on the applications filed under Order 39 Rules 1 and 2, CPC and thus the orders passed by the Court below on the applications under Order 39 Rules 1 and 2, CPC have attained finality. In this view of the matter, 30 appeals have become virtually infructuous as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC shall remain intact in the above mentioned four suits. It also need be stated that relief of interlocutory injunction against the defendants in all the suits was prayed for against one and the same property,</p><p style="text-align: justify;">4. So far as present 3 appeals are concerned, it may be mentioned that the plaintiffs along with their suits filed applications under Order 38, Rule 5, CPC as also under Order 39, Rule 1 and 2, CPC and, therefore, the defendants have challenged both the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC and that being the reason the present three appeals are decided by separate judgments.</p><p style="text-align: justify;">5. While deciding four appeals by a separate judgment this Court observed that since the relief of attachment in all the suits was prayed for against one and the same property, therefore, the analogous conclusion would be that these four appeals have become virtually infructuous, inasmuch as even if they are allowed, the order to place and produce the property at the disposal of the Court shall remain intact in 30 suits.</p><p style="text-align: justify;">6. So far as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC are concerned, the main thrust of the argument of Dr. P.C. Jain, learned Counsel appearing for the defendant-appellants is that the suits of the plaintiffs are not maintainable, inasmuch as there was no privity of Contract between the plaintiffs and the defendants. In support of his argument, Dr. Jain referred to the averments made in the plaint as also the cross-examination of one of the plaintiffs Rajesh Agrawal (in appeal No. 1116/2005) on his affidavit submitted in support of his application filed under Order 38, Rule 5, C.P.C., wherein he has admitted that defendant M/s. Alwar Prakashan is not known to him and he handed over the cheque to one Rakesh, Financial Advisor, who in turn handed over the cheque to defendants.</p><p style="text-align: justify;">7. The learned Trial Court, on the basis of evidence and material available before itprimafacie came to the conclusion that the plaintiffs issued cheques of loan amount in favour of the defendants and those cheques were encashed and the amount of cheque was credited in the bank account of defendant and debited in the account of plaintiffs. At the stage of grant of temporary injunction, in my view, it may not be appropriate for the Court to hold a mini trial. The relief by way of interlocutary injunction is granted to mitigate the risk of injustice during the period before which the uncertainty about the legal rights asserted by the plaintiff and its violation could be resolved on the basis of evidence of the parties that may be adduced during trial of the suit. So far as the legal issue raised by the Counsel for the appellants that since there was no privity of contract between the plaintiff and the defendants, the plaintiffs have no locus standi to bring the suit concerned, the same shall be considered and decided by the Trial Court on the basis of evidence that may be adduced by the parties during trial of the suit,</p><p style="text-align: justify;">8. Another argument of Mr. Jain to assail the impugned order passed on the application under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC is confined to the provisions of Order 39, Rule 1(b) and Order 38, Rule 5, CPC. Referring the provisions of Order 39, Rule 1(b), CPC and Order 38, Rule 5, CPC, learned Counsel strenuously contended that the threat or intent to remove or dispose of property with a view to defraud creditors or whether defendants are about to dispose of their property with dishonest intention of obstructing and delaying the execution of decree that may be passed against them must be proved by definite evidence. Learned Counsel submitted that a vague affidavit deposing that the defendant is about to dispose of his property without disclosing the source of information is not sufficient to warrant an order under Order 39, Rule 1 (b), CPC and Order 38, Rule 5, CPC. In support of this argument, learned Counsel has relied upon Kalulal v. Shri Narain 1951 RLW 168 and Cosmopolitan Trading Corporation v. Engineering Sales Corporation and Ors. 2001(5) WLC Raj. 386.</p><p style="text-align: justify;">9. To appreciate the above contention, I have perused the orders impugned in these appeal and the affidavits annexed with the application filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC. There is specific averment in the applications under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC about the intention of the defendant to sell his property and the source through which the plaintiffs gathered information. The property dealer with whom the defendants contacted for the purpose of sale of his property has specifically deposed in his affidavit that the defendants contacted him on 15.9.2003 for the purpose of sale of property owned by them. In view of the deposition of property broker, the contention of the learned Counsel for the appellants has no legs to stand.</p><p style="text-align: justify;">10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.</p><p style="text-align: justify;">11. Apart from that has been stated above, it appears to me that the Trial Court while exercising discretion in granting interlocutary injunction in favour of the plaintiffs has taken into consideration all the three ingredients, viz., (i) whether the plaintiffs have got a prima facie case (ii) whether balance of convenience is in favour of the plaintiffs, and (iii) whether disallowing the prayer to grant temporary injunction would put the defendants to suffer irreparable loss. Having found all the three ingredients in favour of the plaintiffs, the Trial Court has passed the orders impugned in these appeal. In this view of the matter, the impugned orders passed on the applications filed under Order 39, Rules 1 and 2, CPC calls for no interference.</p><p style="text-align: justify;">12. The sine qua none for an order of attachment before judgment or an order demanding security before judgment is that the defendant is disposing of or is about to dispose of his property with the dishonest intention of defeating or delaying the possible decree in the suit. The Trial Court on the basis of material available before it came to the conclusion that the ingredients required to attract the provisions of Order 38, Rule 5, CPC are fulfilled. In this view of the matter, the impugned orders passed under Order 38, Rule 5, CPC call for no interference.</p><p style="text-align: justify;">13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs. The learned Trial Court is expected to dispose of the civil suits as expeditiously as possible.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 38, Rule 5 - Order 39, Rules 1 and 2',
		'appealno' => 'Civil Misc. Appeal Nos. 2477 to 2479 of 2004',
		'appellant' => 'Alwar Prakashan and anr.',
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		'casename' => 'Alwar Prakashan and anr. Vs. K.K. Shrimal and anr.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Sections 163-A & 166; [R.M. Lodha, Shiv Kumar Sharma & Ashok Parihar, JJ] Award passed by Tribunal under Section 163-A  Nature of  Held, The award passed by Tribunal under Section 163-A of Act under structured formula is a final award and once that award has been passed, no further award under Chapter XII of M.V. Act could be passed by the Tribunal. The provisions contained in Sections 163-A and 166 of Act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. The claimant must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the M.V. Act but not under both. The award under Section 163-A is final and cannot be described as interim and no proceeding for compensation under Section 166 can be undertaken once the award is declared under Section 163-A.  -  10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. 13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs.',
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		'counselplain' => ' Prakash Chandra Jain, Adv.',
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		'judgement' => '<p style="text-align: justify;">Khem Chand Sharma, J.</p><p style="text-align: justify;">1. Since common question of law and facts are involved in all these appeals filed by the defendant-appellants arising out of the orders allowing the applications filed by the plaintiffs under Order 39, Rules 1 and 2, CPC as also the applications filed under Order 38, Rule 5, CPC, therefore, they are being decided by this common judgment.</p><p style="text-align: justify;">2. Briefly stated the facts of the case are that plaintiffs filed civil suits for recovery of loan amount against the defendants. Along with the suits, the plaintiffs filed applications under Order 39 Rules 1 and 2, C.P.C. alleging therein that the defendants with a view to defrauding the creditors intend or threaten to dispose of the property and prayed to restrain the defendants from selling, mortgaging or alienating the property. The plaintiffs also filed applications under Order 38 Rule 5, CPC alleging therein that the defendants with intent to obstruct and delay the execution of decree that may be passed against them are about to dispose of the property mentioned in the applications. The learned Trial Court, having found prima facie case, balance of convenience and irreparable loss in favour of the plaintiffs allowed the applications filed under Order 39 Rules 1 and 2, CPC vide different orders and granted temporary injunctions thereby restraining the defendants from selling, mortgaging, creating any charge and/or transferring in any manner any part of the property shown in the applications for temporary injunction. The Trial Court also allowed the applications filed under Order 38 Rule 5, CPC and directed the defendant appellants to furnish an undertaking and surety bond within a period of one month to produce and place at the disposal of the Court the property mentioned in para 4 of the application in case the plaintiffs' suits are decreed, failing which orders shall be issued to attach the property before judgment.</p><p style="text-align: justify;">3. Before proceeding further, it is pertinent to mention here that in all 37 creditors from whom the defendants took loan filed separate suits for recovery of their loan amount totaling to Rs. 1,10,10000 along with applications under Order 39 Rules 1 and 2, CPC praying same relief and the learned Trial Court vide different orders granted same relief in favour of the plaintiffs, against which the defendants preferred 33 separate appeals before this Court, out of which 30 appeals have been decided today by common judgment. Four Appeals bearing Nos. 1115/2005, 1116/ 2005, 1117/2005 and 1127/2005 have been filed challenging the orders passed on the applications filed under Order 38 Rule 5, CPC in Civil Suit Nos. 144, 130, 127 and 129 of 2003, respectively. It may be stated that in the above four civil suits the defendants did not challenge the orders passed on the applications filed under Order 39 Rules 1 and 2, CPC and thus the orders passed by the Court below on the applications under Order 39 Rules 1 and 2, CPC have attained finality. In this view of the matter, 30 appeals have become virtually infructuous as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC shall remain intact in the above mentioned four suits. It also need be stated that relief of interlocutory injunction against the defendants in all the suits was prayed for against one and the same property,</p><p style="text-align: justify;">4. So far as present 3 appeals are concerned, it may be mentioned that the plaintiffs along with their suits filed applications under Order 38, Rule 5, CPC as also under Order 39, Rule 1 and 2, CPC and, therefore, the defendants have challenged both the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC and that being the reason the present three appeals are decided by separate judgments.</p><p style="text-align: justify;">5. While deciding four appeals by a separate judgment this Court observed that since the relief of attachment in all the suits was prayed for against one and the same property, therefore, the analogous conclusion would be that these four appeals have become virtually infructuous, inasmuch as even if they are allowed, the order to place and produce the property at the disposal of the Court shall remain intact in 30 suits.</p><p style="text-align: justify;">6. So far as the orders passed on the applications filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC are concerned, the main thrust of the argument of Dr. P.C. Jain, learned Counsel appearing for the defendant-appellants is that the suits of the plaintiffs are not maintainable, inasmuch as there was no privity of Contract between the plaintiffs and the defendants. In support of his argument, Dr. Jain referred to the averments made in the plaint as also the cross-examination of one of the plaintiffs Rajesh Agrawal (in appeal No. 1116/2005) on his affidavit submitted in support of his application filed under Order 38, Rule 5, C.P.C., wherein he has admitted that defendant M/s. Alwar Prakashan is not known to him and he handed over the cheque to one Rakesh, Financial Advisor, who in turn handed over the cheque to defendants.</p><p style="text-align: justify;">7. The learned Trial Court, on the basis of evidence and material available before itprimafacie came to the conclusion that the plaintiffs issued cheques of loan amount in favour of the defendants and those cheques were encashed and the amount of cheque was credited in the bank account of defendant and debited in the account of plaintiffs. At the stage of grant of temporary injunction, in my view, it may not be appropriate for the Court to hold a mini trial. The relief by way of interlocutary injunction is granted to mitigate the risk of injustice during the period before which the uncertainty about the legal rights asserted by the plaintiff and its violation could be resolved on the basis of evidence of the parties that may be adduced during trial of the suit. So far as the legal issue raised by the Counsel for the appellants that since there was no privity of contract between the plaintiff and the defendants, the plaintiffs have no locus standi to bring the suit concerned, the same shall be considered and decided by the Trial Court on the basis of evidence that may be adduced by the parties during trial of the suit,</p><p style="text-align: justify;">8. Another argument of Mr. Jain to assail the impugned order passed on the application under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC is confined to the provisions of Order 39, Rule 1(b) and Order 38, Rule 5, CPC. Referring the provisions of Order 39, Rule 1(b), CPC and Order 38, Rule 5, CPC, learned Counsel strenuously contended that the threat or intent to remove or dispose of property with a view to defraud creditors or whether defendants are about to dispose of their property with dishonest intention of obstructing and delaying the execution of decree that may be passed against them must be proved by definite evidence. Learned Counsel submitted that a vague affidavit deposing that the defendant is about to dispose of his property without disclosing the source of information is not sufficient to warrant an order under Order 39, Rule 1 (b), CPC and Order 38, Rule 5, CPC. In support of this argument, learned Counsel has relied upon Kalulal v. Shri Narain 1951 RLW 168 and Cosmopolitan Trading Corporation v. Engineering Sales Corporation and Ors. 2001(5) WLC Raj. 386.</p><p style="text-align: justify;">9. To appreciate the above contention, I have perused the orders impugned in these appeal and the affidavits annexed with the application filed under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC. There is specific averment in the applications under Order 39, Rules 1 and 2, CPC and Order 38, Rule 5, CPC about the intention of the defendant to sell his property and the source through which the plaintiffs gathered information. The property dealer with whom the defendants contacted for the purpose of sale of his property has specifically deposed in his affidavit that the defendants contacted him on 15.9.2003 for the purpose of sale of property owned by them. In view of the deposition of property broker, the contention of the learned Counsel for the appellants has no legs to stand.</p><p style="text-align: justify;">10. It is no gainsaying that injunction can be granted in a suit for recovery of money in case if the Court is satisfied that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.</p><p style="text-align: justify;">11. Apart from that has been stated above, it appears to me that the Trial Court while exercising discretion in granting interlocutary injunction in favour of the plaintiffs has taken into consideration all the three ingredients, viz., (i) whether the plaintiffs have got a prima facie case (ii) whether balance of convenience is in favour of the plaintiffs, and (iii) whether disallowing the prayer to grant temporary injunction would put the defendants to suffer irreparable loss. Having found all the three ingredients in favour of the plaintiffs, the Trial Court has passed the orders impugned in these appeal. In this view of the matter, the impugned orders passed on the applications filed under Order 39, Rules 1 and 2, CPC calls for no interference.</p><p style="text-align: justify;">12. The sine qua none for an order of attachment before judgment or an order demanding security before judgment is that the defendant is disposing of or is about to dispose of his property with the dishonest intention of defeating or delaying the possible decree in the suit. The Trial Court on the basis of material available before it came to the conclusion that the ingredients required to attract the provisions of Order 38, Rule 5, CPC are fulfilled. In this view of the matter, the impugned orders passed under Order 38, Rule 5, CPC call for no interference.</p><p style="text-align: justify;">13. Resultantly, these appeals fail and are hereby dismissed with no order as to costs. The learned Trial Court is expected to dispose of the civil suits as expeditiously as possible.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Order 39, Order 38, Rule 5, Order 39 Rules 1, Order 38 Rule 5, Order 39 Rules 1, Order 38 Rule 5, Order 39 Rules 1, Order 38 Rule 5, Order 39 Rules 1, Order 39 Rules 1, Order 39, Order 38, Rule 5, Order 39, Rule 1, Order 39, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 39, Rule 1, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 39, Order 38, Rule 5, Order 38, Rule 5

FAC: Khem Chand Sharma

NORP: J.1

CARDINAL: 1, 2, 2, 2, 4, 37, 1,10,10000, 2, 33, 30, Four, 144, 130, 127, 129, four, 2, 2, 30, 1, 2, four, 3, 2, 1, 2, three, four, four, 30, 1, 2, one, one, 1, 2, 1(b, 1(b, 168, 386.9, 1, 2, 1, 2, three, three, 1, 2

ORG: CPC, CPC, CPC, Trial Court, CPC, The Trial Court, CPC, Court, CPC, Trial Court, Court, CPC, Civil Suit Nos, CPC, Court, CPC, CPC, CPC, CPC, CPC, CPC, Court, Court, CPC, CPC, M/s. Alwar Prakashan, Financial Advisor, Trial Court, Court, the Trial Court, CPC, CPC, CPC, CPC, CPC, Counsel, Learned Counsel, CPC, CPC, Counsel, Cosmopolitan Trading Corporation, CPC, CPC, CPC, CPC, Court, the Trial Court, the Trial Court, CPC, The Trial Court, CPC, CPC, Trial Court

GPE: C.P.C., C.P.C.

DATE: a period of, one month, today, 1115/2005, 1116/ 2005, 1117/2005, 1127/2005, 2003, 1116/2005, 1951, 15.9.2003

PERSON: P.C. Jain, Jain, Rajesh Agrawal, Jain, Kalulal v. Shri Narain, WLC Raj, stand.10

WORK_OF_ART: Rakesh