High Court of KeralaSingle Judge2022-01-18Original Petition dismissed.

K. Sadasivan v. Surendradas S/o Bhanu Panicker

Case / Petition Number:OP(C) NO. 1696 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2022-01-18
Court Decision / Holding: Original Petition is dismissed. The trial court shall decide the suit based on the evidence tendered by the parties, uninfluenced by the observations in the impugned order.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

K.SADASIVAN

Respondents

SURENDRADAS S/O. BHANU PANICKER, SREE VISAKH, NEAR MILMA THIRUVALLAM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM 695 027

Legal Representation & Advocates

Counsels for Petitioners

• V.G. Arun
• Smt. V. Jaya Ragi
• Sri R. Harikrishnan (Kambisseril)
• Sri Neeraj Narayan

Counsels for Respondents

• M.R. Rajesh

Case Synopsis & Summary

This Original Petition (OP(C) 1696/2020) challenges an order of attachment before judgment in a money suit pending in the Sub Court, Neyyattinkara. The plaintiff, K. Sadasivan, claims Rs 69,87,500 with interest from the defendant, alleging that the respondent borrowed Rs 65 lakh and issued two cheques towards discharge. The cheques bounced for insufficient funds, and despite repeated notices, the borrower failed to repay, prompting the suit. The respondent denies borrowing and contends the claim is false, supported by two cheques allegedly removed by a third party, engaged by the respondent to assist in his business. An interlocutory application for attachment of the respondent’s immovable property was moved; the trial court dismissed the application, and an appeal challenged that order, which a Full Bench held not maintainable under Order 43 Rule 1(q) CPC. The High Court examines the scope of Order 38 Rule 5 CPC, noting attachment before judgment is an extraordinary remedy to secure a possible decree and must be exercised sparingly on two concrete grounds: (i) the defendant is about to dispose of the whole or part of his property, and (ii) such disposal is with the intention to obstruct or delay execution of a decree. The court cautions against deciding merits in such interlocutory proceedings and directs the trial court to decide the suit on evidence, uninfluenced by observations in the impugned order. Since the respondent deposited Rs 70 lakhs and demonstrated capacity to satisfy any decree, the petition is dismissed.

Provisions of Law Cited

Order 38 Rule 5 CPCOrder 43 Rule 1(q) CPC

Legal Doctrines & Maxims

Ends of justice being defeated (object of supplemental proceedings) – Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302
The object of Order 38 Rule 5 CPC is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables (doctrine from Raman Tech)
Attachment before judgment is an extraordinary power to be exercised sparingly and strictly in accordance with the Code
There must be definite evidence on the points to justify attachment, not mere allegations (Raman Tech doctrine)
Position as reiterated by Skoda Auto India Pvt. Ltd. v. St. Antony’s Trading Company and others (2018(1) KLT 558)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's counsel argued that Order 38 Rule 5 CPC provides the court with power to attach before judgment solely to prevent obstruction to enforcement of a potential decree and should not be used to comment on prima facie merits. They urged that the trial court’s remarks touching the merits were illegitimate. The petitioners submitted that attachment can be ordered only if there is definite evidence of disposal or attempted disposal to defeat execution, and highlighted respondent’s deposition of Rs.70 lakhs as proof of solvency, undermining the urgency of attachment. They contended the remedy is extraordinary and must be exercised sparingly, with the trial court deciding the suit on evidence without being influenced by the impugned order.

Contentions of Respondents

The respondents contended that the claim is founded on two cheques and denied borrowing; they asserted these cheques were obtained by a third party and that the property disposal was part of a mediation settlement in another suit. They argued the attachment application was properly handled and should not be entertained given the respondent’s ability to satisfy any decree and the lack of evidence showing mala fides or an attempt to defeat decree execution.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Raman Tech. & Process Engg. Co. v. Solanki Traders	(2008) 2 SCC 302	Positive	Cited for the principle that supplemental proceedings, including attachment before judgment, must prevent ends of justice from being defeated and require concrete evidence of probable decree. It supports limiting judicial remarks and ensuring the suit is decided on evidence.
Skoda Auto India Pvt. Ltd v. St. Antony’s Trading Company and others	2018(1) KLT 558	Positive	Reiterates the cautious approach to attachment before judgment, aligning with Raman Tech’s doctrine and supporting sparing use of such power.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** ## **OP(C) NO. 1696 OF 2020** **OS 58/2018 OF SUB COURT, NEYYATTINKARA** ## **PETITIONER/S:** K.SADASIVAN AGED 66 YEARS S/O. KUMARA PILLAI, K.S. BHAVAN, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 121. BY ADVS. V.G.ARUN (K/795/2004) SMT.V.JAYA RAGI SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN ## **RESPONDENT/S:** SURENDRADAS S/O. BHANU PANICKER, SREE VISAKH, NEAR MILMA THIRUVALLAM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM 695 027. BY ADV M.R.RAJESH (B/O) **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON 18.01.2022, DELIVERED THE FOLLOWING:** O.P.(C) No. 1696 of 2020 -2- ## **JUDGMENT** Dated this the 18[th] day of January, 2022 The petitioner is the plaintiff in O.S No.58 of 2018 on the files of the Sub Court, Neyyatinkara. The suit is filed for recovery of Rs.69,87,500/- with interest from the defendant and his assets. The petitioner alleges that the respondent, with whom he had long time acquaintance, borrowed an amount of Rs.65,00,000/- and issued two cheques towards discharge of the liability. On presentation, the cheques were dishonoured for want of sufficient funds. In spite of repeated requests and issuance of notice, respondent failed to repay the amount. Hence the suit. 2. The respondent denied the allegation of having borrowed money from the petitioner and contended that a false claim was raised based on O.P.(C) No. 1696 of 2020 -3- two signed cheques, removed from his possession clandestinely by a person called Nazeel.K.Habeeb engaged by the respondent to help him in his business. 3. In the suit, an interlocutory application seeking attachment of the respondent's immovable property was moved, alleging that the petitioner had received reliable information from one Sudarshanan that the hasty steps are being taken to dispose of the respondent's immovable property. The respondent filed objection contending that the property in question had already been sold in terms of the settlement arrived in the mediation with respect to O.S No 179 of 2009, filed by a person with whom the respondent had entered into an agreement for sale of the property. 4. The petitioner approached this Court in OP(C)No.3421/2018 seeking expeditious disposal of his attachment application. The original O.P.(C) No. 1696 of 2020 -4- petition was disposed of by Ext.P9 judgment, directing the respondent to make a fixed deposit of Rs.70 lakhs as an interim measure, in view of the impending court holidays. It was made clear that no consideration regarding the merits of the contentions and the arrangement is purely interim in nature, is made by this Court. Thereafter the court below took up the application for attachment and dismissed the same by Exhibit P10 Order. The petitioner initially challenged the order by filing an appeal before this Court, which led to Exhibit P11 judgment by a Full Bench holding that the appeal is not maintainable under Order 43 Rule 1(q) of the Code. Accordingly, this Original petition is filed challenging Exhibit P10 Order. 5. Heard. 6. Learned Counsel on both sides put forth elaborate arguments regarding the scope and ambit of Order 38 Rule 5 of CPC, which empowers the O.P.(C) No. 1696 of 2020 -5- court to order attachment before judgment. Learned Counsel for the petitioner further contended that the trial court committed a gross illegality in making observations with respect to the merits of the suit itself, while deciding the interlocutory application. 6. Having carefully scrutinised the impugned order, I find that some observations have been made regarding the merits of the suit. The consideration of an application seeking attachment before judgment should be confined to the question whether the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of the property. Being so, the expression of doubt regarding the genuineness of the plaint claim, the finding that the plaintiff has not made out a prima facie case and the case set up by the defendant appears to be more probable, ought to have been avoided. It O.P.(C) No. 1696 of 2020 -6- is hence made clear that, the trial court shall decide the suit based on the evidence tendered by the parties, uninfluenced by the observations in the impugned order. 7. Having held so, I find the other reasons stated in Exhibit P10 to be well founded. In the application seeking attachment before judgment, all that is stated is that the petitioner has received reliable information from one Sudarshanan about the respondent's attempt to sell the property and to appropriate the sale proceeds. The trial court, after careful analysis of the precedents, dismissed the application. The fact that the respondent had proved his bona fides by depositing an amount of Rs.70 lakhs in compliance of the direction of the High Court, was also taken note of. 8. The objective behind ordering attachment before judgment is to assure the plaintiff that his decree, if made, would be ## O.P.(C) No. 1696 of 2020 -7- satisfied. The jurisdiction of the court to order attachment before judgment is extraordinary in nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Code. Before passing an order of attachment, the court has to be satisfied on two points; (1) that the defendant is about to dispose of the whole or part of his property and (2) that the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him. There has to be definite evidence on these points and not mere allegations. An order of attachment, without proper investigation of the allegations, constitutes grave dereliction of duty. In _**Raman Tech. & Process Engg. Co.** v._ _**Solanki Traders**_ _**[(2008) 2 SCC 302]**_ , the Apex Court has succinctly laid down the position in the following words. _“The object of supplemental proceedings (applications for arrest or attachment before_ O.P.(C) No. 1696 of 2020 -8- _judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant.”_ The above position has been reiterated by the Division Bench of this Court in _**Skoda Auto India**_ _**Pvt. Ltd v. St. Antony’s Trading Company and**_ ## _**others [2018(1) KLT 558]**_ . The legal position being as above, I am unable to find any flaw in the reasoning adopted by the trial court. An omnibus allegation that the defendant is about to dispose of his property cannot be the basis for ordering attachment. In the instant case, there is no allegation that the proposed sale is with intention to defeat the decree that may be passed against the ## O.P.(C) No. 1696 of 2020 -9- respondents. Further, the respondent has categorically stated that he has the financial capacity to satisfy the decree, that may be passed against him. He has also proved his capacity to satisfy the decree by depositing Rs 70 Lakhs in obedience to the direction of this Court. Being so, I find no reason to interfere with the impugned order. The trial court shall decide the suit, based on the evidence tendered by the parties and untrammeled by the observations in the impugned order. In result, the Original Petition is dismissed. Sd/- ## **V.G.ARUN JUDGE** Scl/ O.P.(C) No. 1696 of 2020 -10- ## **APPENDIX OF OP(C) 1696/2020** ## PETITIONER EXHIBITS |EXHIBIT P1|THE TRUE COPY OF CHEQUE BEARING NO.| |---|---| ||089897 DRAWN ON CANARA BANK, KOVALAM,| ||BRANCH PAYABLE ON 01.12.2018.| |EXHIBIT P2|THE TRUE COPY OF CHEQUE BEARING NO.| ||089898 DRAWN ON CANARA BANK, KOVALAM,| ||BRANCH PAYABLE ON 04.12.2018.| |EXHIBIT P3|THE TRUE COPY OF THE ADVOCATE NOTICE| ||BEARING NUMBER 221/18.| |EXHIBIT P4|THE TRUE COPY OF THE ADVOCATE NOTICE| ||BEARING NUMBER 222/18.| |EXHIBIT P5|THE TRUE COPY OF THE REPLY NOTICE| ||DATED 14.12.2018 IN REPLY TO EXHIBIT| ||P3.| |EXHIBIT P6|THE TRUE COPY OF THE REPLY NOTICE| ||DATED 14.12.2018 IN REPLY TO EXHIBIT| ||P4 NOTICE.| |EXHIBIT P7|THE TRUE COPY OF THE I.A. NO. 1017 OF| ||2018 ALONG WITH ATTACHMENT SCHEDULED| ||IN O.S NO. 1017 OF 2018 ON THE FILES| ||OF THE COURT OF SUB JUDGE,| ||NEYYATTINKARA.| |EXHIBIT P8|THE TRUE COPY OF THE OBJECTION FILED| ||BY THE RESPONDENT AGAINST I.A. NO.| ||1017 OF 2018 IN O.S NO. 58 OF 2018 ON| ||THE FILES OF THE COURT OF SUB JUDGE,| ||NEYYATTINKARA.| |EXHIBIT P9|THE TRUE COPY OF THE ORDER DATED| ||21.12.2018 OP (CIVIL) NO. 3421 OF| ||2020.| |EXHIBIT P10|THE TRUE COPY OF THE ORDER DATED| ||18.02.2019 IN I.A. NO. 1017 OF 2018 IN| ||O.S. NO. 58 OF 2018 ON THE FILES OF| ||THE COURT OF THE SUB JUDGE,| ||NEYYATTINKARA.| |EXHIBIT P11|THE TRUE COPY OF THE ORDER DATED| ||12.10.2020 IN FAO NO. 47 OF 2019.| |EXHIBIT P12|THE TRUE COPY OF THE PLAINT IN| ||O.S.NO.58 OF 2018, ON THE FILES OF SUB| ||COURT NEYEATTINKARA.| O.P.(C) No. 1696 of 2020 -11- EXHIBIT P13 TRUE COPY OF THE CAREAT PETITION NO.78 OF 2018 ON THE FILES OF MUNSIFF COURT NEYYATTINKARA. EXHIBIT P14 TRUE COPY OF THE CAVEAT PETITION NO.78 OF 2018 ON THE FILES OF SUB COURT NEYYATINKARA.