Telangana High Court
Chunchu Lachanna vs Bogi Rajitha on 2 July, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 3787 of 2023
ORDER:
This Civil Revision Petition is filed aggrieved by the order, dated 28.11.2023, passed in I.A.No.193 of 2021 in O.S.No.69 of 2021 by the learned Principal Junior Civil Judge, Mancherial.
2. O.S.No.69 of 2021 is filed by petitioner/plaintiff for recovery of amount of Rs.20,00,000/-. During the pendency of the Suit, I.A.No.193 of 2021 is filed by petitioner/plaintiff under Order 38 Rule 5 of C.P.C r/w. Section 151 of C.P.C to direct the respondent/defendant to furnish security for the suit amount of Rs.20 lakhs. The trial Court after considering the arguments of both sides dismissed the application on 28.11.2023. Aggrieved by the order of the trial Court, the petitioner herein preferred the present Civil Revision Petition.
3. Heard both sides. Perused the record.
4. Learned counsel for petitioner contended that the trial Court erroneously dismissed the petition filed by the petitioner herein under Order 38 Rule 5 r/w Section 151 of C.P.C to direct the respondent/defendant to furnish security for the suit amount of Rs.20 lakhs and if she fails, to direct the garnishee of her i.e., 2 Mandal Educational Officer, Nennel to withhold the salary benefits of respondent/defendant. It is open to the Court to look to the conduct of the parties immediately before suit and to examine the surrounding circumstances and to draw an inference as to whether the defendant is about to dispose of the property and if so, with what intention. The Court is entitled to consider the nature of the claim and the defense put forward. Therefore, requested this Court to set aside the order of the trial Court.
5. Petitioner/Plaintiff filed the suit for recovery of amount of Rs.20 lakhs with interest @ 1% per month. Petitioner/Plaintiff and respondent/defendant are acquaintance with each other from 20 years, as such defendant borrowed Rs.16 lakhs with interest from the petitioner for her personal and family necessities. Respondent/defendant issued the banker cheque bearing No.077699, dated 11.01.2021 drawn on IDBI Bank, Mancherial Branch in favour of petitioner/plaintiff. Petitioner/plaintiff presented the said cheque in State Bank of India, Main Branch, Mancherial on 11.01.2021. The bank authorities returned the dishonored cheque with return memo dated 13.01.2021 with an endorsement "FUNDS INSUFFICIENT" to the petitioner/plaintiff. Petitioner came to know that respondent is going to take voluntary retirement from her services. Petitioner got issued legal notice 3 dated 16.01.2021 through his counsel and the notice was served upon the respondent/defendant but she did not pay the amount, as such the petitioner filed the suit.
6. In the counter filed by respondent/defendant, she stated that she is Singareni employee and she is having 15 years of service and reputed person in the society. She did not borrow any amount from the petitioner/plaintiff or any person. Petitioner created the alleged promissory note and filed false suit. Therefore, requested to dismiss the application.
7. The main contention of the petitioner is respondent borrowed an amount of Rs.16 lakhs and as such she filed suit for suit recovery of an amount of Rs.20 lakhs with interest and petitioner came to know that respondent/defendant is going to take voluntary retirement as such, petitioner filed I.A.No.193 of 2021 to direct the respondent/defendant to furnish security for the suit amount of Rs.20 lakhs and if she fails, to direct the garnishee of her i.e., Mandal Educational Officer, Nennel to withhold the salary benefits of respondent/defendant. But the respondent stated that still she is having 15 years of service, as such the question of taking voluntary retirement does not arise. 4
8. Learned counsel for petitioner relied upon a decision in Surender Singh Bajaj Vs Kitty Steels Limited and Another 1, in which the relevant provision of Sub-Section(1) of Section 60 reads as follows:
"60. Property liable to attachment and sale in execution of a decree- (1) - The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank- notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment- debtor, or over which, or the profits of which, he has a disposing power 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."
9. If defendant is trying to leave beyond the jurisdiction of the Court and that she is attempting to withdraw the money deposited and if the attachment before judgment is not granted it would be very difficult for the petitioner/plaintiff to recover their dues from respondent/defendant.
1 AIR 2003 AP13 5
10. In a Division Bench of the High Court of Andhra Pradesh in Chairman and Managing Director, R.P.N.Nigam Limited, New Delhi Vs Rambachane Singh, dealing with necessary conditions for ordering an application filed under Order 38, Rule 5 of CPC was pleased to hold:
".....Such an order is not to be passed in a routine manner merely for the asking for it but that the Court has to be satisfied on tangible materials placed before it that there are attempt at alienation and that the steps are taken so as to delay or obstruct the judgment that may be ultimately passed against the defendant. Before passing an order, the judgment is first of all to be called upon to furnish security in the shape of specific sum to produce and place at the disposal of the Court when required, the property specified by the plaintiff in his petition or such portion of it as may be sufficient to satisfy the decree or call upon him to show-cause as to why he shall not furnish security. But such an order can be passed only after the primary satisfaction of the obstructive conduct of the defendant. The ultimate attachment order can be passed only of the defendant either fails to show- cause why the security shall not be furnished or fails to furnish the security as required....."
11. In the present case, the respondent/defendant is still in service. It is apprehension of the petitioner/plaintiff that respondent/defendant is going for voluntary retirement and his 6 apprehension is not substantiated with any document and respondent/defendant also disputed that she is still having 15 years as such, it cannot be presumed that she will go for voluntary retirement for payment of amount. In fact she also stated that she did not borrowed any amount from the petitioner/plaintiff. As such, it is to be decided by the trial Court that petitioner/plaintiff is entitled for recovery of amount or not. As such, the application filed before the Court is premature and it is not in accordance with Order 38 rule 5 of C.P.C and under Section 60 of C.P.C. The trial Court rightly dismissed the application. Therefore, this Court finds that there is no reason to interfere with the order of the trial Court.
12. In the result, this Civil Revision Petition is dismissed confirming the order of the trial Court dated 28.11.2023, passed in I.A.No.193 of 2021 in O.S.No.69 of 2021. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ P. SREE SUDHA, J Date: 02.07.2024 CHS