TMI Blog2000 (2) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the respondent/first defendant filed a counter through the affidavit dated 30-8-1999, sworn to by its Managing Director. The applicant/plaintiff filed a reply affidavit dated 12-1-2000. 4. Mr. R. Thiagarajan, learned counsel appearing for the applicant/plaintiff would submit that the respondent received a loan of Rs. 10 lakhs on 5-10-1993 from the plaintiff company and a sum of Rs. 4 lakhs on the same date from Excel Fincon Private Limited, a sister concern of the plaintiff company which had subsequently merged with the plaintiff Company, that thereafter on 22-5-1995, the plaintiff company advanced a further sum of Rs. 15 lakhs to the first defendant and that when the plaintiff had been demanding the principal as well as interest amounts, the first defendant was avoiding payment and therefore, the plaintiff sent a legal notice dated 15-4-1997 to the first defendant and received a reply from the first defendant acknowledging the liability, but pleading some adjustment with regard to certain other accounts and that even though the first defendant had admitted and acknowledged the debt and liability, it had not chosen to pay the plaintiff, despite repeated demands and reminders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be executed on 2-11-1993. 10. Pursuant to the contract, Kalpana Industries Limited made purchase orders for plant and machineries to be supplied by the respondent company. Towards the advances, payments were diverted from the plaintiff and other group companies under the control and management of Mr. A.K. Baid and Mr. D.C. Surana, in order to ensure subscription of shares in Kalpana Industries Limited. 11. The letter dated 16-11-1993 and the affidavit of Mr. A.K. Baid, Managing Director of Kalpana Industries Limited dated 11-10-1993 would clearly show that the said amount was diverted from the plaintiff company and other sister concerns. The entire payments that were received from the applicant Company as well as its group companies were immediately invested in Kalpana Industries Limited as agreed by the terms of the contract. The respondent did not retain any money for his personal benefit. 12. After the expiry of lock-in period, the understanding between the parties was that the shares have to be retransferred to applicant's nominees. All these things were put in writing through reply dated 10-5-1997. After lapse of several years, the applicant/plaintiff has file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application is as to whether the prayer sought for by the applicant/plaintiff, against the respondent, is to be granted or not. 17. According to the affidavit, in paragraph 8, the applicant/plaintiff would state as follows : 8. I reliably learn and understand that the first defendant is contemplating to alienate the tangible assets of the Company including the goodwill and plant and machinery. Unless some safeguard is made to protect the interest of the plaintiff in respect of the suit claim, the decree that may be passed in favour of the plaintiff in the above suit would become infructuous and the plaintiff will not be in a position to execute the same. 18. In order to make the said prayer formidable and valid, the applicant/plaintiff would specifically state in earlier paragraph that for the legal demand notice dated 15-4-1997, the respondent sent a reply dated 10-5-97 acknowledging the said liability and that even though the respondent/first defendant had admitted and acknowledged the debt and liability, he has not chosen to pay the plaintiff despite repeated demands and reminders. 19. As correctly pointed out by the learned counsel for the respondent, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) If an order of attachment is made without complying with the provisions of Sub-rule (1) of this rule, such attachment shall be void. 24. The reading of the above provision would make it clear that there are essential requirements which must be proved to the satisfaction of the Court. They are as follows :-- (i) The defendant is about to dispose of the whole or any part of his property; or (ii) The defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court; (iii) That the defendant is intending to do so to cause obstruction or delay in the execution of any decree that may be passed against him. Vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the rule. (iv) 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 through an affidavit. 25. Therefore, the jurisdiction of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout any basic strata of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the property or to remove it beyond the jurisdiction of the Court, totally unsupported by particulars, would not be sufficient compliance with Order 38. Rule 5 of CPC. (7) 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. At the nebulous juncture, the relief which is extraordinary 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. 27. In the light of the above principles, if we look at the facts of the case, in my view, the requirements contemplated under Order 38, Rule 5 of CPC, have not at all been satisfied by the applicant/plaintiff herein. 28. As quoted in the various decisions, the mere bald averment as contained in paragraph 8 of the affidavit that the first defendant is contemplating to alienate the tangib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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