Palakkuzhiyaan Moitheen @ Moitheenkutty v. James Pullanthanikkal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944** **FAO NO. 89 OF 2022** **AGAINST THE ORDER IN I.A.NO.2 OF 2022 IN OS 22/2022 DATED 7/6/2022** **OF SUB COURT, MANJERI** ## **APPELLANT/PETITIONER/PLAINTIFF:** PALAKKUZHIYAN MOITHEEN @ MOITHEENKUTTY AGED 55 YEARS S/O HYDRU HAJI, RESIDING IN THE ADDRESS MULAKALTHODI HOUSE, MUTHUPARAMBA P O, MUTHUVALLOOR AMSOM DESOM, KONDOTTI TALUK, MALAPURAM DISTRICT-673 638. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENT/RESPONDENT/DEFENDANT:** JAMES PULLANTHANIKKAL AGED 64, S/O PAPPACHAN, RESIDING IN THE ADDRESS PULLANTHANIKKAL HOUSE, VETTILAPPARA AMSOM, AREACODE, DESOM, ERANAD TALUK, THOTTUMUKU P.O., MALAPPURAM DISTRICT-678574. BY ADV.K.M.ANEESH ADV.SANTHOSH KUMAR K. ADV.SHASHANK DEVAN ADV.ADARSH KUMAR ADV.BIJU VARGHESE ABRAHAM ADV.DILEEP CHANDRAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10/08/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO 89 of 2022 2 ## **CR** ## **JUDGMENT** The plaintiff/petitioner came up in appeal against the lifting of an order of attachment on the ground of non-discloure of source of information regarding the intention of the defendant to alienate the property. 2. The subject matter of the suit comes to Rs.1,25,01,103/-. It is submitted that the dismissal of the application virtually left out the plaintiff without any other alternative to execute the decree that may be passed. In fact, what is incorporated under Order XXXVIII C.P.C. is a precautionary measure and shall not be used to defeat or pressurise the defendant or their rights over any movable or immovable property. But, at the same time, the court has to protect the interests of plaintiff and shall not permit the defendant either to dispose of his property or to remove from the jurisdiction of that court so as FAO 89 of 2022 3 to defeat or delay the decree that may be passed. In the instant case, the order of attachment before judgment was lifted on the sole ground that the source of information regarding the attempt of the defendant to dispose of his property was not disclosed in the affidavit attached to the application. Hence, the question came up for consideration is whether the trial court is justified in lifting the attachment before judgment on that sole ground. 3. Initially, guidelines were issued under Order XXXVIII Rule 5 C.P.C. by the High Court of Calcutta in **Premraj Mundra v. Md.Maneck Gazi &** **Ors. (AIR 1951 Cal.** 156). The Apex Court had given acceptance to the said guidelines in **Raman** **Tech & Process Engg. Co. and Another v. Solanki** **Traders [(2008) 2 SCC 302].** The guidelines issued by the High Court of Calcutta in **Premraj Mundra** 's case (supra) are extracted below for reference: “1)That an order under O. 38, Rr. 5 & 6, can only be issued, if circumstances exist as are stated therein. FAO 89 of 2022 4 2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of the Court. 3) That the Court would not be justified in issuing an order for attachment before judgment, or for security, merely because it thinks that no harm would be done thereby or that the defts. would not be prejudiced. 4) That the affidavits in support of the contentions of the applicant, must not be vague, & must be properly verified. Where it is affirmed true to knowledge or information or belief, it must be stated as to which portion is true to knowledge, the source of information should be disclosed, & the grounds for belief should be stated. 5) That a mere allegation that the deft, was selling off & his properties is not sufficient. Particulars must be stated. (6) There is no rule that transactions before suit cannot be taken into consideration, but the object of attachment before judgment must be to prevent future transfer or alienation. (7) Where only a small portion of the property belonging to the deft, is being disposed of, no inference can be drawn in the absence of other circumstances that the alienation is necessarily to defraud or delay the pltf's. claim. (8) That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his properties simply of cause a suit has been filed: There must be additional circumstances to show that the transfer is with an intention to delay or defeat the pltf.'s claim. It is open to the Court to look to the conduct of the parties immediately before suit, & to examine the surrounding circumstances, to draw an inference as to whether the deft. is about to dispose of the property, & if so, with what intention. The Court is entitled to consider the nature of the claim & the defence put forward. (9) The fact that the deft, is in FAO 89 of 2022 5 insolvent circumstances or in acute financial embarrassment, is a relevant circumstance, but not by itself Sufficient. (10) That in the case of running businesses, the strictest caution is necessary & the mere fact that a business has been closed, or that its turnover has diminished, is not enough. (11) Where however the deft, starts disposing of his properties one by one, immediately upon getting a notice of the pltf.'s claim, &/or where he had transferred the major portion of his properties shortly prior to the institution of the suit & was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft. was to delay and defeat the pltfs'. claim. (12) Mere removal of properties outside jurisdiction, is not enough, but where the deft, with notice of the pltfs'. claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, & without any other satisfactory reason, an adverse inference may be drawn against the deft. Where the removal is to a foreign country, the inference is greatly strengthened. (13) The deft, in a suit is under no liability to take any special care in administering his affairs, simply because, there is a claim pending against him. Mere negect, or suffering execution by other creditors, is not a sufficient reason for an order under O. 38 of the Code. (14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the pltfs. claim. The Court must however be very cautious about the evidence on these points & not rely on vague allegations. 4. The guidelines in fact means a set of statements or rule of appreciation to determine a FAO 89 of 2022 6 course of action in the process of decision making and shall not be substituted in the place of a mandatory requirement as envisaged by any of the provisions of law. A guideline shall not be substituted in the place of a mandatory requirement, but it is only an instrument in the hands of decision making authority to arrive at a conclusion based on the requirements under any provision of law. The guidelines issued must be taken as guiding factors in the appreciation of fact in issue or any disputed question and shall not be read as a mandatory requirement. The guidelines issued should always be an assistance to the decision making authority and hence, would stand governed by rule of probability. The guidelines issued by the High Court of Calcutta in **Premraj Mundra'** s case (supra), which had taken approval in **Raman Tech & Process Engg. Co.** 's case (supra) should not be taken as an authority to substitute the guidelines in the place of a mandatory requirement or as an indivisible part of FAO 89 of 2022 7 the provision. It is not permissible to dismiss the application mechanically without properly assessing the apprehension in the mind of plaintiff/petitioner. There should be a pragmatic approach while exercising the extraordinary power under Order XXXVIII Rule 5 C.P.C.. Necessarily, though the courts are bound to follow the guidelines laid down in **Premraj Mundra** 's case (supra), in view of the legal position settled by the Apex Court in **Raman Tech** 's case (supra), the court cannot insist its compliance as if the same would constitute a mandatory requirement under that provision i.e. Order XXXVIII Rule 5 C.P.C.. There shall not be any misappreciation or misunderstanding of the legal position settled by the Apex Court in **Raman Tech** 's case (supra) followed by the decision of the Calcutta High Court in **Premraj Mundra** 's case (supra). As such, an application for attachment before judgment shall not be dismissed simply on the reason that there is no disclosure of source of information in FAO 89 of 2022 8 the affidavit filed in support of the application. In fact, it is a curable defect and if it is found to be bona fide omission and when there is evidence to show the existence of intention on the part of the defendant to part away with the property in order to delay or defeat the decree that may be passed, the court is not expected to dismiss the application simply on the reason of non-disclosure of source in the affidavit. There should be a pragmatic approach to have a judicial determination as to the intention, if any possessed by the defendant and its credibility in relation to the attending circumstances and the evidence, if any, available on the point. There may be cases in which the plaintiff has direct knowledge or notice regarding the attempt on the part of the defendant to part away with the property and it is otiose that in that situation also, he must take the responsibility of introducing an informer in his affidavit for maintaining an application for attachment before FAO 89 of 2022 9 judgment. Further, it cannot be insisted that the plaintiff invariably in all cases must disclose the name and identity of the informer in his affidavit so as to maintain an application. The requirement is entirely different and is resting on the intention of the defendant to defeat and delay the execution of the decree that may be passed by transfer of his property or its removal. 5. The discussion made by a Division Bench of this Court in paragraph 12 of its judgment in **Skoda Auto India Pvt. Ltd., Maharashtra v. M/s.** **St.Antony's Trading Company and Others (2018 (1)** **KHC 574)** must be viewed conjointly with the requirement of the provision dealing with attachment before judgment and the guidelines issued. A vague and general allegation regarding the attempt or the intention of the defendant is not sufficient and the plaintiff has to state the grounds on which he entertains his belief or the apprehension that the defendant would dispose of or remove his property. The further observation FAO 89 of 2022 10 made by the Division Bench that the plaintiff shall disclose the source of information and state what kind of enquiry he had made and the materials collected in that behalf must be read and appreciated in the light of abovesaid observation and shall not be read in isolation so as to bring the same within the sweep of a mandatory requirement. The dismissal of the application for attachment before judgment on the ground that the source of information was not disclosed in the affidavit, hence cannot be sustained. The order of the court below will stand set aside and the matter is remanded back to the trial court for fresh consideration. The parties shall appear before the trial court on 30/08/2022. Sd/- ## **P.SOMARAJAN JUDGE** sv