Honourable Laxmi Petroleum ... vs Aryan Sugars Ltd. Khamgaon, ...
2021 Latest Caselaw 173 Bom

Smita        Digitally signed by Smita
             Gonsalves

Gonsalves    Date: 2021.01.06 13:13:22
             +0530



        sg                                                                             6. wpst98606-20.doc

                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                                  CIVIL APPELLATE JURISDICTION

                                              WRIT PETITION (STAMP) NO.98606 OF 2020

               Laxmi Petroleum, Shelgaon, Solapur                             ...Petitioner
                     vs.
               Aryan Sugars Ltd.                                              ...Respondent
                                                     ....
               Mr. Prasad P. Kulkarni, for the Petitioner.
                                                     ....
                                                  CORAM : S.C. GUPTE, J.

                                                              DATE     : 5 JANUARY 2021

               P.C. :


               .                         Heard learned Counsel for the Petitioner.

2. This writ petition challenges an order passed by the Court of Civil Judge, Senior Division at Barshi on 2 December 2020. The impugned order was passed on an application made by the Petitioner herein (original plaintiff) for attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure. The Petitioner is seeking recovery of an amount of over Rs.27.24 lakhs in the present suit. The trial court has refused to accede to the Petitioner's demand for attachment before judgment on two grounds. The very first ground is that the Petitioner had not made any case that the Respondent (original defendant) was either trying to dispose of any property or remove the same from the jurisdiction of the Court with a view to defeat or delay execution of any decree that may be passed in the present suit. The second ground is that DCC Bank Solapur, against whom this relief had inter alia been sought, was not a party to the suit; on the other hand, the bank had started proceedings under the SARFAESI Act,

sg 6. wpst98606-20.doc

2002, seeking to attach the property under the provisions of that Act, after following due process; and that Section 34 of the Act barred the civil court from entertaining any proceeding in respect of any such matter. The reasons discussed by the trial court are perfectly legitimate and are capable of sustaining the impugned order. The court has correctly applied the law to the facts of the case. It has not relied on any irrelevant or non-germane material or circumstances and has not disregarded any germane material or circumstances. The view expressed by the court is a possible view. There is, accordingly, no infirmity in the impugned order. The writ petition is dismissed.

(S.C. GUPTE, J.)