2019 (8) TMI 1650 - HC - Indian Laws

Suit for recovery of money and cancellation of a deed of gift - attachment of certain immovable properties of the respondent - Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 - HELD THAT - In the present case, neither in the plaint nor in the petition the petitioner has disclosed the particulars of the loan transactions to substantiate that the said confirmation of the accounts issued by the respondent No. 1 constitute an acknowledgement under Section 19 of the Limitation Act. The respondent No. 1 executed deed of gift dated August 6, 2018 in favour of the respondent No. 3 for transfer of the said Flat Nos. 8A and 9A of Premises No. 6, Queens Park, Kolkata - 700 019 long before the filing of the suit and the present application in August, 2019. Further, when the petitioner has affirmed the averments made in paragraphs 9 to 17 of the petition as her respectful submissions before this Court, I find some substance in the contention of the respondents that the petitioner has not fulfilled the conditions with regard to her knowledge or source of information that after filing of the present suit, the respondent No. 1, is intending to transfer any of their immovable properties or the ornaments of the respondent. It is not convincing to hold that the petitioner has made out any prima facie case for obtaining any ad interim order in this application - petition dismissed.

Summary

Issues:
- Application under Order XXXVIII Rule 5 for attachment of immovable properties.
- Claim for recovery of money and cancellation of a deed of gift.
- Allegations of loans and advances not repaid.
- Transfer of shares and subsequent refusal by the company.
- Alleged transfer of flats through a deed of gift.
- Prayer for attachment of specific properties.
- Arguments regarding unsecured creditor status and lack of disclosure.
- Legal provisions under Order XXXVIII Rule 5 and conditions for attachment.
- Requirement for a prima facie case for obtaining an ad interim order.

Analysis:

The petitioner filed an application under Order XXXVIII Rule 5 seeking attachment of immovable properties in a suit for money recovery and cancellation of a deed of gift. The petitioner alleged that loans and advances were not repaid by the respondents, leading to legal action. The respondents transferred shares and flats, with subsequent complications in recording the transfers. The petitioner claimed that the transfer of flats through a deed of gift was an attempt to evade payment. Concerns were raised about further disposal of properties, prompting a request for attachment. The petitioner also sought injunctions to prevent any transfer or disposal of the mentioned properties.

The respondents argued that the petitioner failed to establish a valid claim and did not fulfill necessary conditions for attachment before judgment. They contended that the transfer of properties had occurred before the suit was filed, questioning the basis for attachment. Legal principles were cited to emphasize that attachment should not be granted mechanically to convert unsecured debts into secured ones. The respondents stressed the need for the petitioner to demonstrate a bona fide claim and an imminent risk of property disposal to warrant attachment.

Upon review, the court found that the petitioner did not sufficiently substantiate the loan transactions or demonstrate a prima facie case for an ad interim order. The court noted the lack of specific loan details and the timing of property transfers, indicating a failure to meet the required conditions for attachment. The court directed the respondents to file an affidavit in opposition, signaling a need for further examination before any decision on attachment. The court clarified that its current views were preliminary and subject to further scrutiny.

In conclusion, the judgment highlighted the importance of meeting legal criteria and establishing a valid case for attachment before judgment. The court emphasized the need for clear evidence and compliance with procedural requirements to warrant such a drastic legal remedy. The case was adjourned for additional submissions and a more comprehensive assessment of the parties' positions.