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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 ..... of institution of and during pendency of the suit in terms 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 - The rigours of Order XXXVIII Rule 5 are not applicable in the present case, at least at this stage, simply because the petitioner is not seeking attachment of any of the properties of the respondent. All that the petitioner seeks is protection, until the matter is heard on affidavits, from its monetary claim against the respondent being rendered infructuous. There is no basis therefore to expand the contours of what the petitioner prays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five cheques drawn on Axis Bank. According to the petitioner, the money was given as loan pursuant to requests made for such by the respondent and at an agreed rate of interest of 15% per annum. 2. Mr. Suman Dutt, senior counsel appearing for the petitioner submits that an interim order is called for since the respondent has denied the loan facility in its entirety. Counsel places the bank 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual contentions, the point of maintainability must first be addressed. Section 13 of The Bengal Money-Lenders Act, 1940, prohibits a court from passing a decree or order in favour of a money-lender in a suit filed by a money-lender for the recovery of a loan advanced, unless the court is satisfied that the moneylender held an effective licence at the time of granting the loan or advancing any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the respondent, the documents would establish, at the very least, a jural relationship between the petitioner and the respondent. The documents would also show that the respondent made certain payments to the petitioner in relation to which TDS was deposited by the respondent. The aforesaid facts would therefore beg the question: Why would the respondent make payments to the petitioner and claim deductions against such payments, 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and aims at preserving the state of affairs after the interim stage in the suit is over. The primary intention of the Court at this stage is to secure the petitioner against the respondent from disposing of or removing his property from the local limits of the jurisdiction of the Court. 10. While both sections intend to give a protective cover to the petitioner at the time of institution of and during pendency of the suit in terms 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificantly, there is no mention of the interest payments in the respondent's letter or any explanation thereto. The words 'false narrative', 'false and concocted statements' etc. are tell-tale signs of a serious dispute having arisen between the parties which require intervention of the court. The respondent's total denial supports the second and third tests of balance of convenience and irreparable injury warranting passing of a temporary injunction in favour of the petitioner. The respondent will not suffer any injury since the petitioner does not seek an order of attachment of the assets of the respondent. 14. Withdrawal of a similar application in March of this year cannot be a ground to deny relief to the petitioner, particularly where the protection is of an interim nature and subject to more facts being disclosed by way of affidavits. 15. Having found that the petitioner has made out a satisfactory case under Order XXXIX Rule 1 of The Code of Civil Procedure, there shall be an order restraining the respondent from dealing with or disposing of, alienating or encumbering any of his immovable assets and properties without leave of the Court until th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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