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TMI Blog2021 (6) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... account statements of the petitioner from 01-05-2017 to 31-05-2017 which reflect that three transfers were made through RTGS by the petitioner to the respondent and a further statement for the period of 25-02-2018 to 28-02-2018 showing two further tranches of payments made by the petitioner to the respondent. Counsel further places the relevant Form 26AS which shows that the respondent has deposited TDS on account of three payments towards interest made by the respondent in favour of the petitioner which would be evident from the respondent filing his returns under "interest other than interest on securities". Counsel further submits that the respondent holds 33.33 per cent shares as a partner in developing properties at various places in and around Kolkata and also immovable assets and properties, including two flats at Alipore Park Place, Kolkata and four bank accounts which are being operated by the respondent. Counsel relies on Harleen Jairath vs. Prabha Surana; 2019 (4) CHN (Cal) 412 for drawing a distinction between Order XXXVIII Rule 5 and Order XXXIX Rule 1(b) of The Code of Civil Procedure, 1908 (CPC) to impress upon the court that an order in the nature of a temporary inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part thereof. The other parts of Section 13 are not relevant for the purposes of this application. Section 2(12) of the said Act defines a "loan" as an advance, whether on any monetary terms or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note as provided under sub-clause (12)(e). Under Section 13 of the Negotiable Instruments Act, a "negotiable instrument" has been defined as a promissory note, bill of exchange or cheque payable either to order or to bearer. A conjoint reading of the provisions under The Bengal Money-Lenders Act and the Negotiable Instruments Act makes it evident that a loan advanced by way of a cheque (within the definition of a negotiable instrument) would fall outside the purview of a "loan" under The Bengal Money-Lenders Act and hence outside Section 13 of the same which bars a court from passing a decree/order in favour of a money-lender in a suit filed for recovery of a loan advanced unless the court is satisfied that the money-lender held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, if there is no transaction at all between the parties? The undeniable conclusion would be that the TDS Certificates amount to an acknowledgement of debt on the part of the respondent in relation to monies advanced by the petitioner. 7. The petitioner does not seek an order for attachment before judgment. The petitioner prays for an order restraining the respondent from dealing with or alienating/disposing of the respondent's shares in the development project or any of the other immovable properties mentioned in the petition, including the bank accounts without leave of court. The order prayed for is hence in the nature of an order under Order XXXIX Rule 1 of The Code of Civil Procedure, 1908, where a temporary injunction may be granted if it is proved by affidavit or otherwise that the respondent threatens to cause injury to the petitioner in relation to any property in dispute in the suit wherein the court may restrain such act for the purpose of preventing the alienation of the property or any injury caused to the petitioner if the court deems it fit to do so until the disposal of the suit or until further orders. Order XXXIX Rule 1, particularly the portion following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of preserving the property which would afford relief to the petitioner in real terms, there is an important distinction in the nature of the property contemplated under the provisions. Under Order XXXIX Rule 1, the property sought to be preserved is 'property in dispute in a suit', whereas, it is the respondent's property under Order XXXVIII Rule 5-the words used are 'his property' following specific reference to ''the respondent, with intent to obstruct or delay''. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter. Although, the terms 'order' and 'decree' can be interchangeably used depending on the nature of the application, the thrust of the two provisions, read together, is saving the suit property till the right of the petitioner is established to proceed with the suit and to save the petitioner from the decree-or the possibility thereof-being frustrated once the suit nears culmination. 11. The rigours of Order XXXVIII Rule 5 are not applicable in the present case, at least at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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