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Judgment
S.S. Satheesachandran, J.—These two original petitions, both filed under Article 227 of the Constitution are by the rival side in a pending suit on the file of the Sub Court, Ernakulam. O.P.(C) No. 312/11 has been filed by the plaintiffs in the suit, three in number, against Ext. P6 order passed by the learned Sub Judge disallowing the application moved by them for interim attachment of an immovable property belonging to the defendants recording the averment in the affidavit filed by the 5th defendant who represented the 1st defendant company also as its Managing Director that such property will not be alienated. O.P.(C) No. 429/12 has been filed by the defendants against the common order passed by the learned Sub Judge (Ext. P6 in the OP) on two applications moved by the plaintiffs directing for issue of summons to some bank managers to appear and produce the loan documents of the defendants, and from the authority concerned to produce an application purported to have been moved by the 5th defendant to remove his name from the list of wilful defaulters. The learned Sub Judge after hearing the applications of the plaintiffs, negativing the objections of the defendants, allowed them under a common order and directed issue of summons for production of the documents. Challenge in the above original petition is against that order.
Though the orders challenged in the two original petitions arise from separate petitions canvassing different reliefs as they emanate from the suit between the same parties, after hearing the counsel on both sides, they are disposed of under this common judgment. For the sake of convenience, exhibits produced, to the extent possible, are referred to with reference and as marked in O.P.(C) No. 312/11, except where it is so found necessary to refer to the exhibits separately produced in the other original petition.
Suit is one for recovery of money of a sum of Rs. 1,50,00,000/- alleged to have been collected by the defendants from the plaintiffs promising to transfer dealership of Tata Motors'' to them, but, which was not honoured. Ext. P1 in O.P. (C) No. 429/12 is copy of the plaint. Though some other transactions as to handing over of the title deeds of the plaintiffs over an immovable property to secure loans for purchase of a BMW car from the defendants are also imputed of, for the purpose of disposal of these two original petitions, it is unnecessary to dilate on those aspects with reference to the contentions raised thereto by the defendants to resist the suit claim. Suffice to state that the defendants in their joint written statement {Ext. P2 in the above OP} have admitted the receipt of the sum of Rs. 1.5 crores from the plaintiffs, but, with a different version that it was provided on the basis of an offer made by the plaintiffs to have a joint venture with the 1st defendant company promising to arrange a capital of Rs. 7.5 crores. A sum of Rs. 1.5 crores alone was later arranged, that too in instalments, according to the defendants. The defendants also raised a counter claim for a sum of Rs. 5 crores on the allegation that the 5th defendant had been arrested by police at the instance of the plaintiffs on trumped up charges over the transactions imputed in the plaint and thereby he has suffered damage to the extent to the sum claimed.
Plaintiffs filed an application in the suit for interim attachment of an item of immovable property belonging to the defendants to secure the suit claim. Ext. P1 is copy of that application. To that application Ext. P2 counter affidavit was filed by the 5th defendant. An additional affidavit (Ext. P3) was then filed by the plaintiffs, to which the 5th defendant filed Ext. P4 counter affidavit. Plaintiffs thereupon filed Ext. P5 reply affidavit. The learned Sub Judge, after considering the affidavits as above and hearing the counsel on both sides, passed Ext. P6 order disallowing the interim attachment claimed, but, ordering for recording the affidavit filed by the first plaintiff that the property will not be alienated.
The learned counsel for the plaintiffs assailed Ext. P6 order passed by the learned Sub Judge as illegal, irregular and vitiated by serious jurisdictional infirmity. The learned Sub Judge has failed to exercise his judicial discretion properly and correctly with reference to the admitted facts and circumstances presented in the case, and the application for interim attachment was turned down on hyper technical grounds without taking note that the conduct of the 5th defendant who has already entered into an arrangement to put up a commercial venture, to put up construction of a multi-storied building in the scheduled property with a third party, would render whatever undertaking given by him in his affidavit unworthy of any value, is the submission of the counsel. Intention of defendants to alienate at least a major portion of the property, if not the whole, is evidenced from the contract entered with the third party and when that be so, whatever be the undertaking given by the first defendant and recorded by the court, that would not secure the decree granted in favour of the plaintiffs, is the further submission of the counsel. In such a situation, the plaintiffs will be able to get only the share by contribution with other creditors of the defendants, and in the given facts of the case where there is no dispute about the receiving of the sum of Rs. 1.5 crores from the plaintiffs by the defendants, the learned Sub Judge should have passed an order of attachment over the scheduled property to secure the decree canvassed on the claim of the plaintiffs, is the submission of the counsel that Ext. P6 order is liable to be interfered with and an order of attachment over the scheduled property of the defendants has to be passed to advance the ends of justice.
Countering the submissions made as above, learned Senior Counsel appearing for the respondents contended that no interference with the order passed by the learned Sub Judge is called for in the case, where no infirmity could be imputed against such order. Adverting to paragraph 11 of affidavit forming part of Ext. P1, the application moved by the plaintiffs for interim attachment before judgment, learned Senior Counsel contended that the essential particulars to be pleaded to seek such discretionary relief are totally absent to invoke the jurisdiction of the court to pass an order of interim attachment before judgment. Mere allegation by the plaintiffs that the defendants are intending to dispose of the property is not sufficient to issue an order of attachment before judgment, and if we go by the averment of the affidavit of the plaintiff in Ext. P1 there is no particulars whatsoever as to steps, if any, taken by the defendants to dispose their property, submits the senior counsel. The defendants have given an undertaking to the effect that they will not alienate the property, which, in the given facts of the case, has been accepted by the learned Sub Judge as sufficient to hold that an interim order of attachment as applied for by the plaintiffs is called for, is also highlighted by the counsel to contend that in exercise of visitorial jurisdiction vested with this court no interference with such order, which has been passed in exercise of the judicial discretion of the learned Sub Judge is possible. An undertaking has been given before this court that the defendants will not alienate the property pending disposal of the original petitions and on its basis an order has been passed with a direction to communicate to the Sub Registry, is also pointed out by the counsel that the challenge against the order of the learned Sub Judge declining interim order of attachment has only to be turned down.
Ext. P6 order passed by the learned Sub Judge would indicate that the learned Sub Judge, after taking note of the judicial precedents laid down in considering of an application for interim attachment before judgment, has concluded that the affidavit filed in support of Ext. P1 application did not satisfy the requirements for passing an interim order of attachment. In fact, there is no discussion with reference to the affidavits later filed by both parties to the proceedings in the enquiry conducted over the relief claimed for interim attachment before judgment. Facts presented in the case would show that before Ext. P1 application was moved, a caveat petition moved by the defendants anticipating adverse interim orders against them in a proceeding by the plaintiffs was in force, and accordingly notice on Ext. P1 application was issued to them. No interim order of attachment was passed on Ext. P1 application probably in view of the aforesaid circumstance. When that be the case and pending enquiry on Ext. P1 application when both sides tendered materials in support of their respective case, absence of specific particulars in the affidavit forming part of Ext. P1 application in seeking the interim order of attachment cannot be given too much significance and the learned Sub Judge has to look into the materials produced in such enquiry to consider whether the plaintiffs are entitled to the discretionary relief of interim attachment. A hyper-technical view that in such a case the application for interim attachment has to be allowed solely on the basis of the averments made in Ext. P1 application, even if the circumstances presented in the case show otherwise, would lead to miscarriage of justice. The defendants have received a sum of Rs. 1.5 crores from the plaintiffs is not a matter in dispute. It has also come out that the defendants have entered into an agreement with a third party to put up some constructions over substantial portions of the property scheduled in the petition. What are the terms of such agreement and how far the property is encumbered under such agreement has not been disclosed to the court. Circumstances presented as above cannot be brushed aside by the court when a suit claim is sought to be secured by an interim order of attachment by the plaintiffs canvassing a case that if an order of interim attachment is not passed pending suit, the decree that may be passed in their favour may turn out to be a paper decree incapable of bearing fruits in execution. Further more, it, is noticed that the learned Sub Judge was heavily impressed by the undertaking given by the defendants that they will not sell the property. Scanning through the affidavits filed by the defendants Exts. P2 and P4, I do not find that any specific undertaking which could be acted upon, in case the need arises, has been given to the court. Ext. P2 counter affidavit is seen filed by the Managing Director of the 1st respondent company on behalf of that respondent in the suit. That Managing Director has been impleaded in the suit in his individual capacity as the 5th defendant. There is no whisper in the counter affidavit that it has been filed on behalf of all the defendants. So far as the undertaking given, it is interesting to note that the only averment made, that too repudiating the apprehension of the plaintiffs as to disposal of the property is thus:
I undertake before this honourable court that no such event will occur before the disposal of the above suit.
Can such an averment be acted upon as an undertaking given by the defendants in the suit was not even gone into by the learned Sub Judge in coming to the conclusion that the defendants have given an undertaking and that would suffice the, requirement of securing the scheduled property and rendering it available in the event of passing a decree, in favour of the plaintiffs. In the present petition, an undertaking has been given by the counsel for the respondents that the scheduled property will not be alienated till disposal, and, on the basis of the submissions recorded, a communication was sent to the Sub Registry, that also will not secure the decree in the suit in case it is so passed, after trial, in favour of the plaintiffs. Disposal of interlocutory applications for injunction, attachment etc., on the basis of undertaking given by one or the other party has been deprecated. In the event of any violation of such undertaking or a case is set up demanding an enquiry whether it has been flouted, at a later stage, that would result in undesired and unwarranted enquiry over the scope and interpretation of the undertaking given and also whether it has been flouted. Interlocutory applications for injunction, attachment etc., have to be decided on its merits and not to be disposed of on undertaking given by the opposite party. In the present case, in fact there was no undertaking at all. No undertaking was given by the defendants other than an averment by one of the defendants, the Managing Director of the 1st defendant company, that the event apprehended by the plaintiffs regarding the disposal of the property will not occur during the pendency of the suit. In Ext. P2 affidavit the word ''undertake'' has been used by the deponent to state that the event apprehended by the plaintiffs will not occur during the pendency of the suit is no ''undertaking'' at all. Further more, even if that, averment is to be construed as an undertaking by the 1st defendant company, it does not amount to an undertaking by the other co-defendants. Then also, what is the merit of the averment even if it is construed as an undertaking has also to be taken note of in the backdrop of the proved circumstances that the defendants have entered into some agreement with a third party for putting up constructions in major portion of the scheduled property. The averment which is styled as an ''undertaking'' would only preclude the deponent in the affidavit, and even assuming that it is binding on other defendants as well, then, all the defendants from effecting a voluntary disposition of the property. However, if there is compulsion for involuntary transfer through due process of law at the instance of a third party for enforcement of any agreement of sale or claim, then also what is styled as an ''undertaking'' as per the averment in Ext. P2 affidavit will evaporate and be of no use. Without looking into any of the above aspects, the learned Sub Judge has passed Ext. P6 order as if the defendants have given an undertaking and that would suffice, the ends of justice. When no undertaking has been given by the defendants and the averments in Ext. P2 affidavit referred to above by the 1st respondent through its Managing Director can never be treated as an undertaking, Ext. P6 order passed by the learned Sub Judge as if an undertaking has been given by the defendants that they will not dispose of the property suffers from serious jurisdictional infirmity, and it warrants interference in exercise of the visitorial jurisdiction vested with this court.
The other original petition, O.P.(C) No. 429/12 has been filed by the defendants challenging the order of the learned Sub Judge allowing two-applications moved by the plaintiffs for summoning some bank managers and production of documents through them. At the time of hearing, it is submitted that pursuant to summons issued by the court, most of the documents sought for in the application of the plaintiffs have already reached the court as produced by the bank managers summoned. Further more, from the submissions made by the counsel on both sides, and also looking into the challenges raised against the orders passed by the learned Sub Judge in the original petition, I find that, in the backdrop of the counter claim raised by the defendants in the suit for damages imputing that the acts of the plaintiffs have tarnished the business reputation of the 5th defendant, it cannot be stated, at this stage, that the applications moved by the plaintiffs for summoning the documents to show that the 5th defendant is a ''wilful defaulter'' included in the list of wilful defaulters published by the bank and correspondence thereto, were unworthy of consideration. I do not find any impropriety in the order passed by the learned Sub Judge allowing the applications moved by the plaintiffs for summoning bank manager''s for production of the documents. However, I make it clear that it is open to the defendants to raise whatever objections sustainable under law over the admissibility of the documents summoned in receiving them in evidence. If any objection to the reception of the documents summoned in evidence is raised, no doubt, the learned Sub Judge has to consider admissibility of such documents in accordance with law. Plaintiffs in the given facts of the case are shown to be entitled to an interim order of attachment before judgment over the scheduled property covered by Ext. P1 application, subject to the right of the defendants to furnish security for the plaint claim and get such interim order of attachment vacated. Ext. P1 application for attachment in reversal of Ext. P6 order shall stand allowed, subject to the rights of the defendants to furnish security for the plaint claim within a period of six weeks from the date of this judgment before the court below.
O.P.(C) No. 312/11 is allowed as indicated above, and O.P.(C) No. 429/12 is dismissed.