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2017 (11) TMI 1969 - CALCUTTA HIGH COURTDishonor of Cheque - insufficiency of funds - mortgage of property - injunction sought to restrain the defendants from dealing with or disposing of or transferring or creating any encumbrance in respect of the property pertaining to the Avani Grand project - equitable right of redemption - Order XXXIX Rule 1(b) of the Code - HELD THAT:- Since the plaintiff has not been able to show in the remotest form any modicum of a claim against the second defendant, no property of the second defendant can be attached in furtherance of the plaintiff's admitted claim against the first defendant and no order of injunction may be issued against any property of the second defendant under Order XXXIX Rule 1(b) of the Code. An order of attachment, as the interlocutory court has rightly found, is a tall order and requires both an unimpeachable claim and the likelihood of such claim remaining unrealised if no order of attachment is passed. An injunction under Order XXXIX Rule 1(b) of the Code requires the plaintiff to demonstrate that he is a creditor of the person whose property is to be affected by the order of injunction. On the material carried to court, the plaintiff does not appear to be a creditor of the second defendant. It is with considerable regret and diffidence that it needs to be observed that the filter that was traditionally in place before a matter reached the court may have been considerably eroded in value and diluted in its moral content. The judiciary is not a system of a judges alone; the object of the exercise in a court is not to obtain an unworthy order or defeat a worthy cause, the pursuit is of justice - Even though justice cannot be pursued in the adversarial system by ensuring the removal of injustice, the shared responsibility to prevent unjust causes being espoused in court cannot be shrugged off at the Bar. The judiciary cannot stand, far less remain upright, if either pillar of the Bench or the Bar falters. There comes a time when a system must assert itself, if only to survive against the vicious onslaught of such unscrupulous litigants and their advisors as the present plaintiff. If dockets are not to be clogged with unworthy claims and false defences, litigants who carry vexatious causes must be appropriately dealt with in the award of costs. For the plaintiff's colossal attempt to hoodwink the court and try and obtain an undeserving order, the plaintiff-appellant in this case will pay costs assessed at ₹ 15 lakh each to the second defendant and R-Com - The second defendant and R-Com will be entitled to execute this part of the order in accordance with law. In view of the submission on behalf of the appellant that it did not seek any order of attachment in respect of Avani Aspires, the order impugned is set aside in such regard - Application disposed off.
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