9911796707
TMI Blog2007 (11) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.8.2000 dismissed the said application. It noted that though the plaintiff alleged that two post dated cheques given by the defendants towards payment of the bill amounts were dishonoured, it had neither disclosed the particulars of the said cheques, nor the dates of dishonour. It was of the view that merely making a bald statement that Rs. 99,200/- was due from the defendants was not sufficient to make out prima facie case, when defendants had denied the suit claim. 3. The said order was challenged in revision by the plaintiff. Before the High Court, the plaintiff pointed out that the trial court had ignored its averment that defendants had removed their name board and were removing their machinery from the jurisdiction of the court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5CPC. It is well-settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating 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.) 7. In this case, the suit claim was Rs. 99200/- The notice issued before filing the suit related to dishonour of two cheques for Rs. 22487/-. The particulars of the claim in the plaint were not specific. The trial court had rejected the application on the ground that plaintiff had failed to make out a prima facie case. It did not, therefore, examine the question whether defendant was attempting to defeat any decree that many be passed by shifting his machinery. On the other hand, the High Court ignored the absence of prima facie case. It granted relief under Order 38 rule 5, in exercise of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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