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TMI Blog2009 (7) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff by restraining the defendant from transferring or alienating the suit property described in Schedule A to the plaint and from creating any third party's interest in respect of the said property till the disposal of the suit. 2. The other appeal being F.M.A.T. No. 692 of 2009 is, on the other hand, at the instance of the plaintiff of the said suit and is directed against the later part of the selfsame order dated 26th February, 2009 by which the learned Trial Judge dismissed an application under Order 38 Rule 5 of the Code of Civil Procedure filed by the plaintiff by which the plaintiff prayed for direction upon the defendant to furnish security for the amount claimed in the suit and in default, for attachment of the property before the judgement. 3. The plaintiff filed a suit being Money Suit No. 122 of 2008 in the Court of Civil Judge, Senior Division, Second Court, Barasat thereby praying for recovery of ₹ 1,02,50,982/- being the cost of construction of a building constructed by the plaintiff on the allegation that the defendant entrusted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f injunction on the application under Order 39 Rules 1 and 2 of the Code filed by the plaintiff and being dissatisfied with such order, the plaintiff preferred an appeal being F.M.A.T.1522 of 2008 and the same came up for hearing before a Division Bench of this Court when the said Division Bench by order dated November 29, 2008 disposed of such appeal and the application by directing the learned Trial Judge to dispose of the application for injunction by March, 2009 with further direction that till the disposal of those applications, the defendant should be restrained from alienating or transferring the property as mentioned in Schedule 'A' of the plaint or creating any third party's interest over of the constructed property mentioned in Schedule 'A' to the plaint. 10. Pursuant to such direction, when the matter went back before the learned Trial Judge, as mentioned earlier, the learned Trial Judge has disposed of the application for injunction by maintaining the order passed by this Court in 11. F.M.A.T. No. 1522 of 2008 till the disposal of the suit and rejected the application for attachment before judgment on the ground that in view of the order of inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclined to maintain the order of injunction which is the subject-matter of the other appeal. 16. Mr. Dasgupta, the learned senior advocate appearing on behalf of the defendant, on the other hand, has opposed the prayer for attachment before judgement by contending that there is no averment in terms of Order 38 Rule 5 of the Code of Civil Procedure in the application for attachment filed by the plaintiff and, therefore, the learned Trial Judge rightly dismissed the application for attachment before judgement. He, therefore, prays for dismissal of the appeal filed by the defendant. 17. Therefore, two questions arise for determination in these two appeals. 18. First, whether in a money suit merely because the plaintiff has a strong case on merit, a Court can restrain the defendant from transferring or alienating his movable or immovable property during the pendency of the suit. 19. Secondly, whether in the absence of averments made in terms of Order 38 Rule 5 of the Code, a Court can in a money suit grant an order of attachment before judgment or direct the defendant to furnish security. 20. In order to appreciate the first question mentioned above, it will be profitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, there is no averment in the plaint or the application for injunction that the defendant intended or threatened to remove or dispose of his property with a view to defrauding his creditors and even no name of any creditor has been given. Therefore, Order 39 Rule 1 has no application to the facts of the present case. 23. Order 39 Rule 2 refers to a suit for restraining the defendant from committing a breach contract or other injury of any kind and thus, a simple suit for recovery of an ascertained amount of money for non-payment of the dues for the construction-work already done, does not come within the purview of such provision. 24. In a suit for recovery of specific amount of money, the plaintiff is not remediless and the legislature has enacted the provisions of Order 38 and Rule 5 thereof prescribes the circumstances when the Court can order attachment before judgement by way of interim measure. Such provision is quoted below: 5. Where defendant may be called upon to furnish security for production of property.-(1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment. (See Premraj Mundra v. Md. Manech Gazi1 for a clear summary of the principles.) 26. In the case of Premraj Mundra v. Md. Manech Gazi reported in AIR1951Cal156 , approved by the Apex Court in the aforesaid decision, Sinha, J. (as His Lordship then was) laid down the following principles required to be followed by a Court before invoking the jurisdiction under Order 38 Rule 5: [10.] From a perusal of all the authorities, I think that the following guiding principles can be deduced: (1) That an order under O. 38, Rr. 5 6, can only be issued, if circumstances exist as are stated therein. (2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of the Court. (3) That the Court would not be justified in issuing an order for attachment before judgment, or for security, merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es outside jurisdiction, is not enough, but where the deft. with notice of the pltfs'. claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, without any other satisfactory reason, an adverse inference may be drawn against the deft. where the removal is to a foreign country, the inference is greatly strengthened. (13) The deft. in a suit is under no liability to take any special care in administering his affairs, simply because there is a claim pending against him. Mere neglect, or suffering execution by other creditors, is not a sufficient reason for an order Under O. 38 of the Code. (14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the pltf's. claim. The Court must however be very cautions about the evidence on these points not rely on vague allegations. 27. Applying the aforesaid principles to the facts of the present case, we find that the statement that has been made in the application for attachment before judgement was that the defendant is in ruinous condition and that if the decree was passed in the suit, the plaintiff would not be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of S. 94 were not there in the Code, the Court' could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power. 30. While making such observations, the Apex Court took note of an earlier decision of that Court in the case of Padam Sen v. State of Uttar Pradesh 1961CriLJ322 where the question was whether a Court in exercise of power under Section 151 of the Code can seize the account book of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order which is not in conflict with sustentative right of a party and that such order is necessary for ends of justice provided further that there is no bar in the Code for passing such order which must be procedural in nature. 33. In the case of Manohar Lal (supra), the Court was considering whether a party should be restrained from proceeding with his suit which was earlier in point of time till the disposal of a later suit filed by the other party in exercise of inherent power when Section 10 of the Code was not attracted. The Court answered the question in negative but made the observations quoted earlier regarding power of the Court to grant injunction under inherent power. 34. In the case before us, the plaintiff wants an injunction restraining the defendant from transferring or alienating his own property over which the plaintiff has no right or for attaching the said property. An owner of a property has unrestricted right of alienation and such power cannot be curtailed unless law provides for putting any such restriction. Section 94 of the Code which is in the substantive part of the Code (as opposed to the procedural part) gives power to the Court to restrict such s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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