Talla Krishna Harsha, vs M/S. Laxmi Constructions,
2022 Latest Caselaw 5661 AP

             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

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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

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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

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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

2008(2) SCC 724

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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