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Judgment
The applicant/plaintiff has filed the Applications Nos. 660 to 662 of 1991 under Order XIV, Rule 8 of the Original Side Rules read with Order
39, Rules 1 and 2 of CPC for the relief of an interim injunction restraining the Garnishee-Bank viz., the second respondent from allowing the first
respondent to withdraw the amounts or deposit the amounts in S.B. Account No. 19466 at the second respondent hank in the name of the first
respondent, pending disposal of the suit; for attaching the property of the first respondent, before judgment, more fully described in the Judge''s
summons in O.A. Nos. 661 of 1991 and restraining the first respondent from withdrawing any amounts now in the S.B. Account of the first
respondent, bearing No. 19447 (HUF) in the hands of the Garni-shee, the second respondent herein by means of temporary injunction, pending
disposal of the suit.
The short facts which are necessary for the appreciation of the case in hand as culled out from the identical affidavit filed in support of all the
affidavits are extracted as follows:--
The applicant is the plaintiff and he has filed the suit for the recovery of a sum of Rs. 1,77,033.35 with interest at 24% per annum on Rs, 80,000/-
from the date of plaint till the date of realization.
The defendants 2 and 3 in the suit being the partners of M/s. Sai Prabha Productions obtained a loan of Rs. 80,000/- from the plaintiff/applicant on
the guarantee given by the 4th defendant who is the first respondent in the above applications and the said amount has been handed over through
the first respondent who also stood as the guarantor for the above payment. As the said amounts were paid through cheques to the first respondent
herein who in turn obtained promissory notes from the defendants 1 to 3 undertaking to pay the amounts to the applicant/ plaintiff as and when
demanded by him, followed by the defendants failure to pay the principal or interest except a sum of Rs. 4,800/- and that in spite of the repeated
demands and final notice dated 5-6-1991 sent to the 4th defendant, viz., the first respondent, he has come forward with an undertaking that he
would make the entire payment of principal and interest on or before 30-7-1989 and that as the said amount was not paid by the defendants, after
issuing notice on 16th January, 1991 the present suit has been filed for the recovery of the amount, reflected in the suit. Thus basing on the
guarantee given by the first respondent, the suit amount was advanced to the defedants, but all the defendants failed to discharge the same.
It was contended by the appli-cant/plaintiff that all the defendants including the first respondent were trying to move out of the jurisdiction of this
Court with a view to evade the suit liability and since they are involved in the film production line and once the production is over, it will be highly
impossible to secure any amount from them and that as such, the first respondent who utilised the entire funds, undertook to pay the suit claim on
or before 30-7-1989 and that since no payment was made by the first respondent who is doing business in finance, may move out of the the
jurisdiction of this Court, in order to evade the liability of the suit, the above applications were initiated by the applicants for the reliefs asked for in
the same. In formulating the said averments, the applicant had admitted that he has received a sum of Rs. 4,800/- from the defendants and that
except the said payment, no other amount was paid by any of the respondents or the defendants in this case. Therefore, the reliefs made in all the
three applications were being asked for by the applicants.
On moving the above applications urgently before this Court and on finding a prima facie case in favour of the applicants, this Court has granted
the interim prohibitory order against the Garnishee/Second respondent on 23-8-1991 and ordered the notice to the respondents, returnable in two
weeks.
The first respondent has filed a common counter-affidavit in all the abovesaid three applications and in which he contends inter alia that there is
no liability to pay the suit claim to any extent by him and that in short, this respondent denies each and everyone of the averments and the claim
made in the suit as well as the affidavit filed in support of the applications and that the defence of the first respondent is one of total denial. He
denies the averment of receiving a sum of Rs.80,000/- by M/s.SaiPrabha Productions and the alleged guarantee given by this respondent and the
alleged payment made by the applicant/plaintiff to either of the defendants. He states that he never stood as a guarantor for the payment of the suit
claim to the plaintiff at any point of time. He denies further the averments that there was a joint meeting held on 5-6-1989 and the alleged
undertaking given on 12-6-1989 by this respondent to pay the suit liability on or before 30-7-1989. According to him, the notice dated 16-1-
1991 was very vague and bereft of any details and particulars. This respondent denies the very liability of himself to the suit claim made by the
applicant/ plaintiff.
He contends further that he is having immovable properties in the city of Madras worth about several lakhs and paying Income Tax for
individuals on behalf of the Hindu Undivided Family. He avers that he is living permanently and that just to tarnish his image and status in the
society, the present suit and the applications were filed against him also for no liability of any kind so far as this respondent is concerned. He denies
that he was in the film production line and that he never intended to move outside the jurisdiction of this Court with a view to evade the suit liability.
He denies particularly that he never utilised the funds of the applicant/plaintiff. nor undertook to pay any amount, on or before 30-7-1989 as
alleged. On the basis of the vexatious claim, basing on the notice dated 5-6-1989, the applicant cannot claim the remedy of interim injunction to
prohibit the Garnishee from allowing the first respondent to operate the accounts, as he has not established the prima facie case. On the other
hand, the said interim prohibitory order passed by this Court is causing every havoc and obstacle in his routine course of business. He states that
he has advanced a sum of Rs. 97,000/- to the defendants 1 to 3, that they have not paid anything and that consequently, he filed a civil suit in this
Court against them and the same is pending disposal.
6A. This respondent contends that the affidavits filed in support of the above three applications contains nothing warranting the indulgence of this
Court and that as such, no materials of any kind has been placed to grant the order as prayed for and that upon the abovesaid ground, this
respondent wants that all the above three applications have to be dismissed in limine.
Application No. 4374 of 1991 in the suit has been filed by the plaintiff against the first respondent under Order 14, Rule 8 of Original Side
Rules, read with 0. 38, Rule 5 and Section 151 of Code of Civil Procedure, seeking the attachment of the immovable properties of the first
respondent, more fully described in the Judge''s summons, till the disposal of the suit on the same and identical grounds taken in the affidavits filed
in O.A. Nos. 660 of 1991 to 662 of 1991. In view of the abovesaid facts, it has become unnecessary for me to traverse the averments made in
the affidavits once again in this application.
The first respondent in the above application has filed a common affidavit in which he contends inter alia that he is not at all liable to pay any
amount to the applicant, nor he gave any undertaking or assurance to pay the suit claim as a whole or any part at any time and that in fact, he
denies emphatically each and everyone of the averments made by the applicants in the affidavit filed in support of the application. He admits that
the house property situate at Anna Nagar, Madras worth several lakh of rupees belongs to him absolutely and that he never had transactions of
any kind with the applicant/ plaintiff nor liable to pay any amount to the applicant. In other respects, this respondent reiterated his stand taken in his
counter-affidavit filed in O.A. Nos.660 to 662 of 1991 and on that basis, he wants that the application is to be dismissed.
Applications Nos. 4894 of 1991 and 5903 of 1991 were filed by the first respondent in all the above applications who is the 4th defendant in
the suit against the plaintiff herein under Order 14, Rule 8 and Order 9, Rule 19 of the Original Side Rules read with S. 151 of Civil Procedure
Code, seeking the relief of setting aside the order passed by this ''Court on 30-8-1991 in Application No. 4374 of 1991, directing the
applicant/respondent to furnish security and to direct the office, of this Court to keep the Document No. 4, the alleged letter of guarantee dated
12-6-1991 in safe custody, till the disposal of the suit.
The grounds urged in the affidavit filed in support of the Application No. 4894 of 1991 are identical and similar to those of the contentions
raised in the counter-affidavits of the first respondent filed in O.A. Nos.660 to 662 of 1991 and Application No. 4374 of 1991 and that upon the
same grounds, the applicant/first respondent wants the order passed by this Court on 30-8-1991 is to be set aside and further since the applicants
dispute the signature in the alleged letter of guarantee dated 12-6-1989 filed along with the plaint as Document No. 4 and that the said letter of
guarantee is a very material piece of evidence inherent with the forged signature of the applicant and with a view to take necessary steps to
examine the genuineness of the signature found in Document No. 4, he prays that the said document is to be kept in safe custody of this Court for
the proper appreciation and adjudication of the entire matter his hand among the parties herein.
The plaintiff figuring as the respondent in these applications filed the counter-affidavit and in which, he denies each and everyone of the
averments made in the affidavit filed in support of the applications by the first respondent/4th defendant; but, on the other hand, he reiterates his
stand taken in, the affidavit filed in support of the applications 0. A. Nos.660 to 662 of 1991 and Application No. 4374 of 1991.
Upon the above rival pleadings, the questions that arise for consideration are the following:
(1) Whether the applicant/plaintiff has made out a prima facie case warranting the indulgence of this Court to grant interim injunction against the first
respondent as prayed for in Original Applications Nos. 660 to 662 of 1991 and to grant the order of ad interim attachment of immovable property
as prayed for in Application No. 4374 of 1991 ?
(2) Whether the 4th defendant/first respondent as applicant has made a case to set aside the order passed by this Court on 30-8-1991 in
Application No. 4374 of 1991 ?
(3) Whether a case has been made out to keep the plaint Document No. 4 in the safe custody till the disposal of the suit as prayed for?
Points Nos. I to 3 : The reliefs claimed in the suit is one for the recovery of a sum of Rs. 1,77,033.35 with subsequent interest and costs
against four defendants among whom the 4th defendant is the first respondent in all the above applications. The grounds upon which the order of
ad interim injunction and attachment before judgment of the immovable property of the first respondent sought for under Order 39, Rules 1 and 2
and Order 38, Rule 5 of CPC are that the applicant/plaintiff in advancing the loan of Rs. 20,000/- to the defendants 1 to 3, the first respondent,
viz., the 4th defendant in the suit was instrumental and through whom and upon his undertaking to repay the suit loan as a guarantor, he applicant
advanced the loan to the defendants 1 to 3 and that even on 12-6-1989, a letter of guarantee was allegedly given by the first respondent
undertaking to discharge the suit liability on behalf of the other defendants, the suit as well as the above applications were filed by the plaintiff for
the reliefs asked for therein. Ex. A.I is a copy of the notice dated 5-6-1989 given on behalf of the plaintiff/applicant to the first respondent
alongwith Ex.A.2, a letter written by the first respondent to the applicant herein on 12-6-1989, but it was written on behalf of M/s. Sai Prabha
Productions signed by one Mr. P. J. Prabhakara Reddy admitting the suit claim were relied on by the applicant herein to substantiate his case.
Thus, it is seen that the sheet-anchor for the entire suit claim is the alleged letter of guarantee given by the first respondent in favour of the applicant
on 12-6-1989 which is the Document No. 4 along with the plaint and about which the contention of the first respondent is that the same was a
forged document created with the forged signature of his, with a view to rope him in the suit liability falsely and that, therefore, to take appropriate
steps to examine his signature and to decide its originality or the bogus nature of the same, it was the prayer of the first respondent to keep the said
document under the safe custody of this Court to take appropriate steps at the relevant point of time. It has to be seen that the other defendants in
the suit were conspicuously not being added as the respondents in these applications for the abovious reasons known to the applicant/plaintiff, but
significantly the garnishee with whom the first respondent is having Savings Bank Account in his individual capacity as well as Hindu Undivided
Family has been added as the second respondent and against whom the relief as provided under Order 38, Rule 5 and Order 39, Rules 1 and 2 of
CPC are being asked for. The defence of the first respondent in all the above applications are one of total denial. In other words, the first
respondent is consistently resisting the applications with the specific plea that he never had any transaction with the applicant nor borrowed any
amount either for himself or for the other defendants in the suit nor gave any letter of guarantee either on 12-6-1989 or at any point of time and that
therefore he is not liable to pay any amount to the applicant/plaintiff on any account and that the alleged letter of guarantee dated 12-6-1989 itself
is vitiated with rank forgery and that, therefore, as there were no materials given in the affidavit as contemplated by law, the same are to be
rejected in limine and that the interim prohibitory order and direction given to furnish security are to be cancelled forthwith and his Application No.
5903 of 1991 is to be allowed.
It has to be seen that the second respondent/Garnishee has not come forward with any objections. None of the defendants except the first
respondent were added as parties in these applications to substantiate the liability of the suit transactions had with the applicant/plaintiff at any point
of time. These aspects of the plaintiffs attitude assumes much significance and importance in the context of the specific and consistent plea taken on
behalf of the first respondent denying the very liability and suit transactions with the applicant. In so far as the reliefs claimed in all the above
applications are concerned, I may straightway observe that the prima facie case of the applicant through the averments made in the affidavits filed
in support of all the applications are to be necessarily established before warranting any order to be passed as contemplated by law. A cursory
perusal of all the identical affidavits filed in all the above applications clinches the fact that the relevant averments have been made only in paras 5
and 6 of the same which are extracted as hereunder:
1 submit that the defendants are trying to move out of the jurisdiction of this Hon''ble Court, in order to evade the liability. Apart from that, they
are in film production line. Once the production is over, they may move out of jurisdiction of this Hon''ble Court and it may not be possible to
obtain any amount even after obtaining decree against the defendants.
I beg to sumit that the respondent herein is the person who utilised the entire funds and who has given undertaking that he will make the payment
on or before July, 1989, till date, no payment has been made by the first respondent. The first respondent is also the person who is doing all
business in finance and he may also move out of the jurisdiction of this Hon''ble Court in order to evade the liability of the claim made by the
plaintiff. It is in these circumstances, I am filing the ap plication for attachment of properties of the first respondent. The first respondent is having
account in the garnishee bank and the first respondent may be restrained, in withdrawing any amount from the bank. Further, the first respondent
having movable properties at the properties more fully des cribed in the judges summon and the property also may be attached. Even though the
amounts were advanced in the year 1985, till date, the applicant has not received any amount except a sum of Rs.4,800/-. The respondent utilised
the amount given by the applicant and utilised the same.
Except the above two paragrabhs, in the context of the specific denial of the respondents, no other averments were made available by the
applicant warranting any order to be passed as contemplated, under Order 39, Rules 1 and 2 as well as Order, Rule 5 of Civil Procedure Code.
In the present context, as this Court has repeatedly held that the remedy provided under Order 38, Rule 5 of the CPC is an extraordinary one and
more care should be taken when granting in favour of any person whose right to recover the money will fructify the decree in case the same is
passed on being established and so the Courts should cautiously exercise the above said provision of law. But the facts of the present case more
particularly the averments made in paras 5 and 6 of the affidavit as above referred to, I may straightway reject that the applicant/ plaintiff has not
even neared to the legal norms enunciated in several rulings of this Court as well as the procedural law well laid and formulated in the Code of Civil
Procedure. The applicant has miserably failed to establish even the semblance of the prima facie case as warranted by taw. As such, the affidavit
filed in all the above affidavits are totally bereft of any material particulars or inadequacy of grounds or the circumstances even to warrant this
Court to pass the order of interim injunction or the attachment of immovable properties, pending disposal of the suit. I may even observe that
unless and until the applicant/plaintiff establish the liability of the first respondent, he is not entitled to have any remedy as being asked for at
present. Thus, on a careful consideration of the factual aspects, 1 am so clear in my mind in holding that the applicants in all the above applications
except Applications Nos. 4894 and 5903 of 1991 has virtually and deliberately failed to establish even the semblance of prima facie case inherent
with his averments.
Thiru R. Mohan, the learned counsel appearing for the first respondent drew my attention to the following case laws, in support of the case of
the respondents.
(1) A case law reported in Y. Vijayalak-shmiammav. M/s. Sakinala Lakshmaiah and Sons, AIR 1980 Andh Pra 176 wherein it was held as
follows:--
Under Order 38, Rule 5(4) an order of attachment without compliance with the provisions of sub-rule (1) will be void. So, before an order of
attachment before judgment is made, the Court must satisfy itself that the defendant is about to dispose of or remove the whole or part of his
property. Secondly, this satisfaction must be derived from material on record either by way of affidavit or otherwise; it cannot be whimsical nor
could it be illusory and it should also be based on clear and convincing proof on enquiry that the order is needed for protection of plaintiff. Not
only that, the Court must insist upon strict proof of allegations made in affidavit. It is only on proof positive that the defedant is, with intent to
obstruct or delay the execution of any decree that may be passed, either about to dispose of or remove the whole or any part of his property, the
Court will pass an order directing defendant within certain lime to be fixed, either to furnish security in such sum as may be specified or to appear
and show cause as to why he should not furnish security. Before the Court gives such a mandate, the condition precedent is the satisfaction to be
arrived at as stated above.
(2) T. Srinivasan and Another Vs. V. Srinivasan, wherein it was held as follows (para 4):--
A mechanical adaptation of the language of the relevant provision of the Code of Civil Procedure, hereinafter referred to as the Code, namely,
Order 38, Rule 5 thereof would not suffice the purpose. There must be positive and definite material on the two points set out in Order 38, Rule 5
of the Code, viz.,
(1) that the defendant is about to dispose of the whole or part of his property, and
(2) that the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him. An attachment
before judgment is not a process to be adopted as a matter of course. The suit is yet to be tried and the defence of the defendant is yet to be
tested. The plaintiff only stands a prima facie chance of success in the suit. At this nebulous juncture, an extraordinary relief is being sought for by
the plaintiff. This relief could be granted only if the conditions for its grant, as per the provisions of the Code, stand satisfied. This process is never
meant as a lever for the plaintiff to coerce the defendant to come to terms. Hence utmost caution and circumspection should guide the court. The
court must advert to the provisions of the Code in this regard, advert to and investigate the allegations thrown against the defendant, satisfy itself
that a case for attachment before judgment has been made out and then pass the requisite order. There principles have come to be recognized as
mandated to the Court and if the Court acts in breach thereof, such an order of the Court will have to be ignored as the result of dereliction of
duty.
(3) W. Pappammal Vs. I. Chidambaram, wherein Justice Ratnam has held out the essential ingredients that required for invoking the power of
Court to effect an attachment before judgment under Order 38, Rule 5(1) on the same footings as held out by other Courts of law, in a more
elaborate way especially in paras 6 and 8 of the said case law.
(4) G. Kuppathi Mudaliar Vs. V. Murugesan, wherein this Court has held out as follows (paras 2 and 3):-
The jurisdiction of the court to order attachment before judgment arises only when it is satisfied by affidavit or otherwise that the defendant is
about to dispose of the whole, or any part of his property with the intention to obstruct or delay the execution of the decree that may be passed
against him. So the sine qua non for an order of attachment before judgment is the mala fide intention and the conduct of the defendant in disposing
of or about to dispose of his property with the dishonest intention of defeating or delaying the decree that may be passed in the suit.
As the Court must act with the utmost circumspection before issuing an order of attachment, the affidavit filed in support of the application for
attachment before judgment must clearly establish that the defendant, intent to obstruct or delay the execution of the decree that may be passed
against him is about to dispose of the whole or any part of his property. When the order of attachment is made without complying with these
provisions the attachment is void.
V.K. Nataraja Gounder Vs. S.A. Bangaru Reddiar, wherein it was held as hereunder (paras 4 and 5):
The remedy of an attachment before judgment is certainly extraordinary. If granted, it casts an obligation on the party against whom it is made,
even before he is heard in defence of the suit. The Court has therefore to act with the utmost circumpection before issuing such an order to avoid it
becoming a weapon of oppression in the hands of unscrupulous plaintiffs. In such an application, it is incumbent upon the plaintiff to state the
grounds on which he entertains the belief or apprehension that the defendant would dispose of or remove the property, or, to give the source of his
information and belief in the matter. A verbatim copy of the provisions of the Code in the affidavit in support of the application, or a mechanical
repetition of the language of the Code without an iota or substratum of truth underlying the allegation, is merely colourable and constitutes an abuse
of process of court. The court must insist upon strict proof of the said allegations. Any order of the Court without a proper investigation whether
the allegations are well found- ed or not constitutes a gross dereliction of duty.
Following the legal ratios held out in all the above referred case laws and that in the context that this Court has repeatedly held following the
above ratios, I may observe that there is no iota of averments or allegations or facts made in the affidavits filed in all the above applications on
behalf of the plaintiffs and that, therefore, on the basis of the total inadequate materials and absence of valid grounds, the extraordinary relief of
attachment before judgment of the property of the first respondent and the interim injunction cannot be granted in favour of the applicants and that
further the affidavits filed in all the applications are based on mere conjuctures and surmises and that there is no proper ground for warranting the
indulgence of this Court, as contemplated by law. Since it was the case of the 4th defendant in Application No. 5903 of 1991 the the alleged letter
of guarantee dated 12-6-1989 filed along with the plaint, viz., Document No. 4 is inherent with rank forgery of his signature and that there is
inconsistency in mentioning the date of letter of guarantee as pleaded in the affidavit and the one found in the said document, it was the prayer of
the first respondent that with a view to prove its genuineness and probe the truth or otherwise of the signature found in the said document, it is to
be kept in the safe custody. Having considered the said cotnentions, I am satisfied with the availability of material aspects and without expressing
any of my opinion, I may observe that in ordering the said document to be kept in safe custody, it will not cause any prejudice to either of the
parties, but it will be helpful for the proper and total adjudication of the matter in hand and as such. I am satisfied to grant the relief as prayed for in
the said applications.
Thus having considered the factual aspects as pleaded in the affidavits and counter-affidavits and the rival contentions advanced on behalf of
the parties herein, in the context of the well settled legal principles, I am fully sattisfied to hold that the applicant/plaintiff in all the first four
applications failed miserably and has not established even the semblance of the prima facie case and as such I answer the points Nos. 1 and 2
against the applicant/plaintiff and in favour of the first respondent/4th defendant in Application No. 5903 of 1991.
In the result, Original Applications Nos. 660, 661 and 662 of 1991 and Application No. 4374 of 1991 are dismissed with no order as to
costs. Consequent to the order passed in the abovesaid applications, the interim prohibitory order passed already and the notice directed to furnish
security, if any, are set aside and accordingly, Application No. 4894 of 1991 filed by the first respondent is allowed with no costs. Application No.
5903 of 1991 is allowed with no order as to costs and accordingly, it is ordered that the Document No. 4, filed along with the plaint is to be kept
in safe custody in this Court, till the disposal of the suits.
Order accordingly.