TMI Blog2014 (6) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that the aim of Order 38 Rule 5 C.P.C. is not to convert an 'Unsecured Debt' is a Secured Debt. Furthermore, when the Respondent/Defendant is said to have created 'Equitable Mortgage' in favour of the Appellant/ Plaintiff, then, this Court is of the considered view that the Appellant/Plaintiff is not entitled to claim reliefs under Order 38 Rule 5 C.P.C. and Order 39 Rule 1 and 2 C.P.C. Appeal dismissed. - O.S.A. Nos. 291 and 337 of 2013 and M.P. No. 1 of 2013 - - - Dated:- 16-6-2014 - M. JAICHANDREN AND M. VENUGOPAL, JJ. For the Appellant : Mr. P.R. Raman For the Respondent : Mr. D. Prabhu Mukunth for N. Rangasamy JUDGMENT M. Venugopal, J. 1. The Appellant/Applicant/Plaintiff has filed O.S.A. No. 337 of 2013, as against the order, dated 02.01.2013, in A. No. 3488 of 2012 in C.S. No. 507 of 2012, passed by the Learned Single Judge, in dismissing the Application seeking an order of Attachment Before Judgment of immovable properties of the Respondent/Defendant. The Appellant/Applicant/Plaintiff has preferred O.S.A. No. 291 of 2013, as against the order, dated 02.01.2013, in O.A. No. 677 of 2012 in C.S. No. 507 of 2012, passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Appellant/Applicant/Plaintiff in O.S.A. No. 337 of 2013: 4. The Learned Counsel for the Appellant contends that the Learned Single Judge had committed an error in arriving at a conclusion that in support of A. No. 3488 of 2012 in C.S. No. 507 of 2012 would clearly show that it was a case of Plaintiff (Appellant) that no steps were taken by the Respondent/Defendant to dispose of the property. 5. According to the Learned Counsel for the Appellant, it is the specific case of the Appellant/Plaintiff that the Respondent/Defendant could not have purchased the properties without embezzling the Appellant's funds and if the Respondent/Defendant is not directed to furnish security and attachment of the properties are not ordered, he would certainly sell them, leaving the Appellant with nothing to execute the Decree that may be passed in the suit. 6. The Learned Counsel for the Appellant submits that the Learned Judge had failed to appreciate the pleadings, contentions, documents and totality of the facts and circumstances of the case. 7. Expatiating his contention, the Learned Counsel for the Appellant/Plaintiff takes a plea that the Learned Single Judge erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim injunction) was filed in order to ensure that the subject properties were preserved and no third parties interest were granted. Moreover, the Learned Counsel for the Appellant takes a stand that unless the existing order of injunction which was not passed ex parte but was ordered after the Respondent/Defendant entered appearance in the matter was made absolute, the Appellant would not be in a position to recover huge suit amounts from the Respondent/ Defendant. 14. Finally, the Learned Counsel for the Appellant contends that the Learned Single Judge erred in linking the fact of the Respondent/ Defendant depositing his title deeds with the Appellant/Plaintiff to that of disposing of his properties and despite deposit of title deeds, the Respondent/Defendant can dispose of the properties, thereby defeating any Decree that may be passed in favour of the Appellant in the main suit. Respondent's Contention (in both the Appeals): 15. Conversely, it is the submission of the Learned Counsel for the Respondent/Defendant that the Respondent/Defendant filed a suit for declaration in O.S. No. 2967 of 2012 before the Vacation Court of the City Civil Court, Chennai seeking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased manner. 19. The Learned Counsel for the Respondent/Defendant submits that the power under Order XXXVIII Rule 5 of the Civil Procedure Code is an external one and indeed, the Appellant/Plaintiff should make a specific averment to obtain an order for furnishing security or Attachment Before Judgment and in this regard, to lend support to his contention, he relies on the Division Bench Judgment of this Court in M. K. Hariprasad, Sole Proprietor, Yehem Agency, Chennai ' 600 084 and another V. Uma Keshav, 2010 (1) MWN (Civil) 432 at pages 434 435, wherein, in paragraph No. 11, it is observed and held as follows: 11.It would be quite clear that either filing of a Suit for recovery of money or the averment in the affidavit cannot by itself suffice for granting the relief of attachment before judgment. In order to get the relief of direction for furnishing security or in default, attachment before judgment, the plaintiff who seeks the remedy must make a specific averment which would warrant for getting such a relief. In the case on hand, it is quite absent in the considered opinion of this Court. It is a drastic and extraordinary power vested in the hands of the Court unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set, it is to be pointed out that the Appellant/ Plaintiff has filed a suit in C.S. No. 507 of 2012 against the Respondent/ Defendant claiming a sum of Rs. 2,01,62,274/- together with interest at 18% p.a. from the date of filing of the Plaint till the date of realisation. 22. The plea of the Appellant/Plaintiff is that the Respondent had indulged in such fraudulent acts for more than 12 years and it came to Appellant/Plaintiff's knowledge only on 21.10.2011, when, pursuant to the Special Audit Report, the Respondent/Defendant was questioned on his fraudulent acts by the Appellant/Plaintiff's officials and he admitted his guilt and submitted a letter in this regard on 21.10.2011. 23. It comes to be known that the Appellant/Plaintiff held domestic enquiry against the Respondent/Defendant and the punishment of dismissal from service was awarded to the Respondent/ Defendant, through an order dated 21.05.2012. That apart, the stand of the Appellant/Plaintiff is that the losses caused by the Respondent/ Defendant to the Appellant/Plaintiff were clearly established in the domestic enquiry. 24. The stand of the Respondent/Defendant is that he had filed a suit for declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant/Plaintiff refers to the letter of the Respondent/Plaintiff dated 17.11.2011 addressed to V. M. Ravikumar, Senior General Manager ' IR of Appellant/Plaintiff Company wherein the Respondent/Defendant had handed over his property documents as surety towards repayment to the company, which was duly acknowledged and further submits that the Respondent/Defendant had created an 'Equitable Mortgage' in favour of the Appellant/Plaintiff to secure the amount. In this connection, it cannot be forgotten that Order XXXIX Rule 1 enjoins that when the Defendant threatens to dispossess the Plaintiff or otherwise cause injury to the Plaintiff in relation to any property in dispute in the suit, the Court may grant a temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the Plaintiff or for the purpose of preventing the causing of injury to the Plaintiff in relation to any property in dispute. Therefore, the relief of injunction is a preventive relief and ordinarily, the same is granted, by a Court of Law, taking note of 'Equity', as opined by this Court. 28. The main stand of the Appellant/Plaintiff is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainty of the Plaintiff's success and of the existence of a serious danger with the Defendant is performing all acts with dishonest intention of defeating or delaying possible Decree. 30. It is to be remembered that an 'Attachment' itself does not create any charge in property. Also that, by reason of an 'Attachment', no Decree is passed. Moreover, 'Attachment Before Judgment' is a matter of relief and not procedure. Further, an order of 'Attachment Before Judgment', passed by a Competent Court of Law, is certainly a drastic remedy and affects the basic right of a person to deal with his property. 31. It is to be noted that before passing an order of attachment under Order 38 Rule 5(1) of the Civil Procedure Code, a Court of Law is to satisfy itself that the Defendant is about to dispose of his property or is about to remove the property from its jurisdiction. Also, a Court of Law is to see whether the Defendant is intending to do so with a view to cause obstruction or to delay the execution of any Decree that may be passed against him. The Plaintiff must precisely set out the grounds on which the belief or apprehension can be entertained, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an 'Unsecured Debt' is a Secured Debt. Furthermore, when the Respondent/Defendant is said to have created 'Equitable Mortgage' in favour of the Appellant/ Plaintiff, then, this Court is of the considered view that the Appellant/Plaintiff is not entitled to claim reliefs under Order 38 Rule 5 C.P.C. and Order 39 Rule 1 and 2 C.P.C. in Application No. 3488 of 2012 and O.A. No. 677 of 2012, especially when the allegations of siphoning of funds etc. which are yet to be tried or crystallised in the form of a Decree in the main suit C.S. No. 507 of 2012 filed by the Appellant/Plaintiff, in the light of rebuttable stand taken by the Respondent/Defendant and also when he filed O.S. No. 2967 of 2012 relating to his termination order, which is pending for final adjudication and in short, the pleadings and defence set out by the parties, are yet to be tested and established in a complete and comprehensive manner. Looking at from any point of view, the Original Side Appeals fail. 34. In the result, the Original Side Appeals are dismissed, for the reasons assigned by this Court in these Appeals. No costs. Consequently, connected Miscellaneous Petition is closed. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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