RAMAN TECH. & PROCESS ENGG. CO. & ANR. v. SOLANKI TRADERS

c The following Order of the Court was delivered by ORDER

1. The appellants are the defendants in O.S. No. 143/2000 on the file of the Civil Judge Junior Division, Medchal, filed by the respondent for recovery ofRs.99200/- towards supply of material. . .,. "'

2. The plaintiff moved an application under Order 38 Rule 5 CPC praying for a direction to defendants to furnish security for the suit claim and if they failed to do so, for attachment before judgment. The Trial Court by its order dated 4.8.2000 dismissed the said application. It noted that though the plaintiff alleged that two post dated cheques given by the defendants towards payment of the bill amounts were dishonoured, it had neither disclosed the particulars of the said cheques, nor the dates of dishonour. It was of the view that merely making a bald statement that Rs. 99 ,200/- was due from the defendants was not sufficient to make out ' F primafacie case, when defendants had denied the suit claim. i..

3. The said order was challenged in revision by the plaintiff. Before the High Court, the plaintiff pointed out that the trial court had ignored its averment that defendants had removed their name board and were G removing their machinery from the jurisdiction of the court. The plaintiff also produced a copy of the writ petition (WP No. 11855/2000) filed \.. by the defendants to restrain the police from interfering with the shifting of their assets from their business premises to another premises. The High Court allowed the revision petition by order dated 13 .10.2000, being of H

RAMAN TECH. & PROCESS ENGG. CO. v. SOLANKI 411 ~- TRADERS the view that the trial court ought to have taken note of the fact that defendants were trying to remove the machinery. It directed defendants to furnish security for the suit amount to the satisfaction of the court within four weeks. The said order is challenged in this appeal by special leave.

4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and ·-__. -

5. The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically G -,___/ or merely fpr the asking. It Should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to conve11 an unsecure:g:debt into a secured debt. Any attempt by a plaintiff to utilize the prova·~ions of Order 38 Rule 5 as a leverage for coercing the H

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A defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.

6. A defendant is not debarred from dealing with his property merely B because a suit is filed or about to be filed against him. Shifting of business ~ from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bonafide and valid c 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 passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before D judgment (See - Prem Raj Mundra v. Md. Maneck Gazi, AIR (1951) .. Cal 156, for a clear summary of the principles.) )..

7. In this case, the suit claim was Rs. 99200/- The notice issued before filing the suit related to dishonour of two cheques for Rs. 22487/-. The particulars of the claim in the plaint were not specific. The E trial court had rejected the application on the ground that plaintiff had failed to make out a prima facie case. It did not, therefore, examine the question whether defendant was attempting to defeat any decree that many be passed by shifting his machinery. On the other hand, the High Court ignored the absence of prima facie case. It granted relief under Order F 38 rule 5, in exercise of revisional jurisdiction, swayed by the fact that • the defendants had shifted their assets to another premises.

8. On the facts and circumstances, the High Court ought not to have interfered with the order rejecting the application. We, therefore, allow this appeal and set aside the order of the High Court and restore the order G of the trial court. \-c RP. Appeal allowed.