TMI Blog2019 (8) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, Queens Park, Kolkata - 700 019 long before the filing of the suit and the present application in August, 2019. Further, when the petitioner has affirmed the averments made in paragraphs 9 to 17 of the petition as her respectful submissions before this Court, I find some substance in the contention of the respondents that the petitioner has not fulfilled the conditions with regard to her knowledge or source of information that after filing of the present suit, the respondent No. 1, is intending to transfer any of their immovable properties or the ornaments of the respondent. It is not convincing to hold that the petitioner has made out any prima facie case for obtaining any ad interim order in this application - petition dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 9,27,00,000/- and ₹ 5,14,00,000/- crores remained due and owing by them respectively to the said husband of the petitioner. Despite being called upon to repay the said loans and advances, the respondent Nos. 1 and 2 had failed and neglected to repay the same to the petitioner and her husband and, as such they contemplated institution of a legal proceeding against the respondents for recovery of their respective dues. With the object of dissuading the petitioner and her husband from doing so, towards the end of June, 2018 the respondent Nos. 1 and her husband approached the petitioner and her husband with a promise to make payment of part of their dues within the next six months and offered to secure such amount by depositing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self and her husband the respondent Nos. 1 and her husband by their letter dated January 16, 2019 acknowledged their liability to pay the outstanding dues of the petitioner and her husband, together with interest at the rate of 12% per annum, from April 1, 2018 and in spite thereof, the respondent Nos. 1 and her husband have failed and neglected to repay their respective dues to the petitioner and her husband. The petitioner claims that her claim against the respondent No. 1 for ₹ 16,80,76,050/- is unimpeachable. However, the petitioner has recently come to learn by a deed of gift dated August 6, 2018 that the respondent No. 1 has transferred her two flats bearing Nos. 8A and 9A at 6, Queens Park, Kolkata-700019 in favour of her daugh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the flat Nos. 8A and 9A at 6, Queens Park, Kolkata. The petitioner has also prayed for ad interim order of injunction restraining the respondent Nos. 1 from transferring or alienating or parting with possession of the flat Nos. 8A and 9A at 6, Queens Park, and the flat Nos. 5A and 6A of Metro Plaza Apartment , No. 1 Ho-Chi Minh Sarani. 6. A copy of the application has been served upon the respondent Nos. 1 and 2 and they are represented by their counsel, before this Court. It is contended by the respondents that at the highest the petitioner is a unsecured creditor of the respondent No. 1 and the petitioner is not entitled to obtain any order in this application to have her unsecured claim being secured by any order of inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents that it is settled law that the power under Order XXXVIII Rule 5 of the Code, which is a drastic and extra-ordinary power should not be exercised mechanically or merely for the asking in order to convert a unsecured debt into a secured debt. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. In order to obtain an order for attachment before judgment under Order XXXVIII Rule 5 of the Code, the plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition as his respectful submission before this Hon'ble Court. Thus, according to the respondents, when the petitioner has failed to fulfill the mandatory conditions of affirmation of an application under Order XXXVIII Rule 5 of the Code, the present application is not maintainable. 9. It is stressed by the respondents that in any event, the petitioner has failed to make out a prima facie case for obtaining any ad interim order in this application and they should be given an opportunity to file an affidavit-in-opposition to this application. 10. I have considered the materials on record, as well as the arguments advanced by the petitioner and the respondents, respectively. In the present case, neither in the plaint nor in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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