THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
C.R.P.No.1424 of 2021
ORDER
This revision petition, under Article 227 of the Constitution of India, is preferred aggrieved by the order, dated 22.11.2021, passed in I.A.No.144 of 2020 in O.S.No.23 of 2020 on the file of the Court of IV Additional District Judge, Anantapuram, which is filed under Order 38, Rule 5 CPC.
2. Heard Ms. K. Krishna Deepthi, learned counsel representing Sri Jada Sravan Kumar, learned counsel for the revision petitioner/ respondent/1st defendant and Sri M. Karibasaiah, learned counsel for the respondent/petitioner/plaintiff. The parties shall hereinafter be referred to as petitioner and respondent, as arrayed in interlocutory application for convenience and clarity.
3. The petitioner is a firm registered under the Partnership Act represented by its Managing Partner, B. Bhujanga Rao, and is having its place of office at Anantapur doing business in construction work. The respondent had purchased the property in an extent of Ac.0.0501 cents in Plot Nos.9 & 10 within Papampeta village of Narayanapuram panchayat limits from original owner, K.Rajendra Prasad, under registered sale deed, dated 06.01.2016. The Managing Partner of the petitioner firm arranged the said sale transaction as he is acquainted with both of them. As per the contents of the consent Khararunama, dated 06.01.2016, out of the sale consideration, the petitioner had paid a sum of Rs.16,50,000/- to the vendor, on 25.02.2016, as the petitioner arranged the sale transaction, under two cheques, one for Rs.13,00,000/-, dated 23.05.2016, and another cheque for 2 BSB, J C.R.P.No.1424 of 2021 Rs.3,50,000/-. On 06.01.2016, the petitioner and the respondent have entered into an agreement for construction for Rs.61,00,000/- with an undertaking to construct ground and first floor as per the specifications mentioned therein. Thereafter, the parties entered into another agreement and thus, the petitioner agreed to construct ground and two floors and the respondent agreed to pay a sum of Rs.82,50,000/- for the construction work done by the petitioner. 3(b) The petitioner proceeded with the work as per the agreement and to the satisfaction of the respondent. In all, the petitioner had received an amount of Rs.61,00,000/- towards construction work. On the request made by the respondent, the petitioner also paid a sum of Rs.16,86,000/- towards purchase of building items. The petitioner completed the building work in February, 2018 and the final vouchers paid to the workers. The Engineer also issued a building completion certificate. The respondent is liable to pay to the petitioner a sum of Rs.54,86,000/- (viz., Rs.16,50,000/- paid at the time of sale transaction + Rs.61,00,000/- paid by the respondent + Rs.16,86,000/- paid on the oral request of the petitioner). Since the date of completion of the building, i.e., since March, 2018, the petitioner has been demanding the respondent for payment of Rs.54,86,000/- and in spite of repeated demands, the respondent is evading to pay the said amount. Thus, the respondent is liable to pay interest at the rate of 18% per annum, as per trade, usage, business and custom. When the petitioner demanded the amount, the respondent filed a false case in Crime No.192 of 2020 on the file of Anantapur P.S., to evade payment. The respondent is the absolute owner of the petition schedule property and except the said property, he does not possess any other 3 BSB, J C.R.P.No.1424 of 2021 properties. Now, with an intention to evade payment, the respondent is making efforts to alienate the petition schedule property and if the property is alienated, the petitioner would lose his right of recovery even if the suit is decreed. Hence, the present petition is filed seeking attachment of the petition schedule property.
4. The 1st respondent/defendant filed counter. It is stated in the counter that the petition schedule property was mortgaged to the bank for the loan amount of Rs.74,45,000/-. In view of the encumbrance to the tune of Rs.74,45,000/-, it is not possible to sell the property. The respondent is not at all due any amount to the petitioner. The petitioner has failed to show prima facie evidence for the suit claim of Rs.54,86,000/- alleged to be due from the defendant. The failure on the part of the petitioner firm to comply with the directions of the Court clearly establishes that the claim of the petitioner for the alleged amount of Rs.54,86,000/- is totally false, as the petitioner failed to furnish complete bank statements for the entire period from 06.01.2018 to 31.05.2017 in spite of directions of the Court. Section 64 CPC envisages that any private transfer of the property attached shall be void as against all the claims enforceable under the attachment. The respondent undertakes not to sell the petition schedule property to anyone during the pendency of the suit. The petitioner failed to make out a case for ordering attachment. Hence, it is prayed to raise the interim attachment and dismiss the petition by recalling the attachment communicated to the Sub Registrar, Anantapur.
5. During enquiry, no oral evidence was adduced by either of the parties. However, exhibits A1 to A5 were marked on behalf of 4 BSB, J C.R.P.No.1424 of 2021 petitioner/plaintiff, whereas exhibits B1 to B4 were marked on the side of the respondent/defendant.
6. The trial Court, by order, dated 22.11.2021, allowed the petition and the interim order of attachment passed on 25.09.2020 was made absolute till disposal of the suit.
7. Hence, this revision by the revision petitioner/1st defendant contending that the impugned order is unsustainable as the trial Court has not properly understood the scope of Order 38 Rule 5 CPC. The trial Court failed to look in to the statutory mandate that under sub- section (1) of Section 60 CPC, a property of the judgment debtor could be attached only if he has a disposing power which he may exercise for his own benefit whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf. The trial Court ignored the fact that the petitioner had never made any attempt to dispose of the whole or any part of the property as the same is mortgaged to the loan availed by the petitioner from a bank. The trial Court failed to consider the settled legal positions laid down by the apex Court.
8. The main grievance of the revision petitioner is that the trial Court has failed to follow the fundamental principles which need to be followed for passing order under Order 38 Rule 5 CPC and also that the revision petitioner cannot further alienate the property in view of the huge encumbrance on the property in view of the mortgage debt with the bank. The trial Court has given reasons, in detail, about the prima facie case in favour of the plaintiff and there is no need to repeat the same in this order.
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9. Learned counsel for the respondent/plaintiff relied on at paragraph No.12 of the decision of the Supreme Court in Rajendran and Ors. Vs. Shankar Sundaram and Ors. 1 in support of his contention that the Court, while exercising its jurisdiction under Order 38 Rule 5 CPC, is required only to form a prima facie opinion at that stage and need not go into the correctness or otherwise of all the contentions raised by the parties. In view of the decision and the observations made by the trial Court, no irregularity or illegality is found in the impugned order insofar as this aspect is concerned.
10. Merely because the revision petitioner has mortgaged the property with the bank by raising loan of whatever amount, it does not prevent him from further alienating the property. If the property is further alienated, priorities of liabilities on the property mortgaged would be considered. As such, the contention of the revision petitioner is not acceptable. Further, it is contended that Section 64 CPC prohibits property transfer declaring it that it shall be void. But it does not prohibit any alienation. As per Section 64 CPC, any alienation of property after the order of attachment would be void as against all the claims enforceable under the attachment. However, any subsequent alienations would lead to multiplicity of proceedings. Moreover, Section 64 CPC comes into force when the order of attachment is in force whereas, the revision petitioner is challenging the order of attachment and thus, no aid can be taken from the Section 64 CPC to oppose the impugned order or the petition as it is filed.
11. Nextly, the petitioner stated in his counter that he would undertake not to alienate the property. The said undertaking or order 1 2008(2) SCC 724 6 BSB, J C.R.P.No.1424 of 2021 of attachment, are to the same effect of restriction on him from alienation. Thereby, no prejudice would be caused by the order of attachment in view of his own undertaking. As such, this Court sees no ground to interfere with the impugned order and the revision petition is devoid of merit.
12. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 29th August, 2022 RAR