Delhi High Court
J.H.Jewelers vs Umed Chindaliya & Ors on 6 March, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 27th February, 2018
Pronounced on: 06th March, 2018
+ CS(COMM) 180/2017
J.H.JEWELERS
..... Plaintiff
Through Mr.Manav Gupta, Ms.Esha Dutta
and Mr.Sahil Garg, Advs.
versus
UMED CHINDALIYA & ORS
..... Defendant
Through Mr.Ateev Mathur, Adv. for D-4
Mr.Dalip Mehra and Mr.Siddharth
Yadav, Advs. for D-1&2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No.24903/2015
1. This application is moved on behalf of the defendant no.2
under Section 94 read with Section 151 of CPC seeking discharge
from the order and/or modification/ clarification of the order dated
07.02.2014 passed by this Court. The said order is as follows:
"I.A. No.2387/2014
The abovementioned application has been
filed by the plaintiff under Order XXXVIII
Rule 5 read with Section 151 CPC for
attachment of the properties of defendants
No.1 and 2. Issue notice to the defendants,
returnable before the Joint Registrar on the
date fixed. The case of the plaintiff is that
defendant No.1 joined the plaintiff in the
year 2011 as an Accountant, in which
capacity he was responsible for depositing
cheques entrusted to him by the plaintiff's
partners and maintenance of accounts.
However, instead of depositing the cheques
of the plaintiff in the plaintiff's account,
defendant No.1 opened a separate account
in his name as that of the plaintiff, i.e.
J.H.Jewellers and deposited all the
plaintiff's cheques in the said account. Later
on, it came to the notice of the plaintiff
about the said account that the money was
further transferred by defendant No.1 to his
personal account and defendant No.2's
account, both with defendant No.4 Bank.
Defendant No.2 is the wife of defendant
No.1. According to the plaintiff, both the
defendants have hatched a conspiracy to
defraud the plaintiff and have cheated the
plaintiff in terms of money to the tune of
Rs.10.18 crores. The criminal proceedings
are also pending against the said
defendants, as the plaintiff has lodged an
FIR. The present suit has been filed by the
plaintiff for the recovery of
Rs.10,17,42,312/-. In view of the statement
made in the plaint as well as the material
placed on the record, the plaintiff has made
a strong prima-facie case for attachment of
the properties before judgment against the
defendants. Thus, all the properties, the
details of which are mentioned in para 7 of
the application, are attached till further
orders."
2. It is submitted by the learned counsel for the plaintiff that
defendant no.2 was living in this residential property and since
house bearing no.16/805, Orange County, Indirapuram, Ghaziabad,
U.P. belong to her, she having registered documents in her name,
she may be allowed along with his family to reside in the said
house till further orders for reasons mentioned in this application.
It is alleged though the house is attached by the order of this Court
but the real purpose of attachment is only to secure the property till
decree is passed and to satisfy the decree. It is argued the
defendant no.2 shall not dispose of the said property or create any
third party right in the same till the disposal of this suit if allowed
to stay in the same.
3. The learned counsel for defendant no.2 had relied upon
Sardar Govindrao Mahadik and another vs. Devi Sahai and others
AIR 1982 Supreme Court 989 wherein it was held:
"What is the effect of attachment before
judgment ? Attachment before judgment is
levied where the court on an application of
the plaintiff is satisfied that the defendant,
with intent to obstruct or delay the execution
of any decree that may be passed against
him (a) is about to dispose of the whole or
any part of his property. Or (b) is about to
remove the whole or any part of his property
from the local limits of the jurisdiction of the
Court. The sole object behind the order
levying attachment before judgment is to
give an assurance to the plaintiff that his
decree if made would be satisfied. It is a sort
of a guarantee against decree becoming
infructuous for want of property available
from which the plaintiff can satisfy the
decree. The provision in section 64 of the
Code of Civil Procedure provides that where
an attachment has been made, any private
transfer or delivery of the property attached
or of any interest therein and any payment
to the judgment debtor of any debt, dividend
or other monies contrary to. such
attachment, shall be void as against all
claims enforceable under the attachment.
What is claimed enforceable is the claim for
which the decree is made. Motilal's suit was
for a money claim. It finally ended in a
decree for Rs. 500 by High Court and in
between the 1st appellate court had
dismissed Motilal's suit in entirety. There is
nothing to show that the attachment which
would come to an end on the suit being
dismissed would get revived if a second
appeal is filed which ultimately succeeds. In
fact, a dismissal of the suit may terminate
the attachment and the same would not be
revived even if the suit is restored and this
becomes manifestly clear from the newly
added provision in sub rule (2) of rule 11 A
of order XXXIII, C.P.C. which provides that
attachment before judgment in a suit which
is dismissed for default shall not be revived
merely because by reason of the fact that the
order for the dismissal of the suit for default
has been set aside and the suit has been
restored. As a corollary it would appear that
if attachment before judgment is obtained in
a suit which ends in a decree but if in appeal
the decree is set aside the attachment of
necessity must fail. There should be no
difficulty in reaching this conclusion."
4. The defendant no.2 submits in July, 2013 the police had
sealed this property and had taken over its keys and in September,
2013 the learned Metropolitan Magistrate had passed an order of
attachment but now since the matter has been referred to the
discretion of this Court by another bench vide an order dated
09.02.2016 in Cr.M.C.1061/2014 and whereas the attachment of
the learned Metropolitan Magistrate is released in
Crl.M.C.No.1061/2014, the defendant no.2 may be allowed to
move in the premises.
5. Heard.
6. I may refer to documents filed by the plaintiff at page 17
annexed to reply to IA No.24903/2015 more specifically the order
on charge dated 02.12.2015 in FIR No.206/13 against the
defendants and it notes as under:
"Coming to offence punishable under
section 411 IPC. Section 410 explains what
comes under the words 'stolen property'.
Things which have been stolen, extorted, or
robbed, or which have been obtained by
criminal misappropriation or criminal
breach of trust come under the extended
significance given to these words.
In case in hand, accused Umed Chandeliya
had allegedly purchased four immovable
properties in the name of his wife/accused
Babita. Babita, being the wife of accused
Umed Chandeliya, must have knowledge
that her husband Umed Chandeliya was an
accountant immovable properties are in the
in a firm. Admittedly, four name of accused
Babita. She had reason to beheve that the
amount given by her husband for purchase
of property was got through one of the mode
stipulated in Section 410 IPC. Accordingly,
this Court is of the opinion that prima facie
offence under section 411 IPC is made out
against accused Babita."
7. The defendant no.1, as alleged, was working as an
accountant with the plaintiff on a meagre salary of `20,000/- per
month, had opened a separate account in the name of the plaintiff
and had started depositing the cheques of the plaintiff in the said
pseudo account of the plaintiff and from such account of the
plaintiff he used to transfer the money in his and his wife's
personal accounts to enable defendant no.2 to purchase properties
in her name, including the one in question.
8. In para 16 of the plaint the details of the amount paid by the
defendant no.2 to the seller of the aforesaid property is given as
under:
16. That on Police investigation it has come to
light that the Defendants 1 & 2 have bought
various properties from the money
misappropriated from the Plaintiff. Details of
these properties and how they have been paid for
are enunciated hereinbelow:
Properties bought by Defendant No.2 from the
funds of the Plaintiff:
(i) 16/805 Orange County, Indrapuram,
Ghaziabad, U.P. - Registry dated
12.09.2012
Date Mode of Name Amount
Payment of
Bank
6.08.2012 Cash Cash 51,000
9.08.2012 Cheque Axis Rs. 10,00,000/-
No.35162 Bank
31.08.2012 Cheque No. Axis Rs. 18,00,000/-
035165 Bank
31.08.2012 Cheque No. Axis Rs.15,00,000/-
035166 Bank
5.09.2012 Cheque Axis Rs.10,87,570/-
No.035169 Bank
Sale price total Rs.54,38,570/-
xxx xxx xxx
All the properties mentioned above have been
purchased by the Defendant No.1 and 2 after the
fraud was committed by the Defendant No.1 on
the Plaintiff. As a matter of fact, a careful
examination of the purchase of these properties
shows that the dates and amounts of withdrawal
of money from the accounts of Defendant No.1
and 2 mentioned in Paragraph No.12, are
commensurate with the dates on which payment
for these properties was made and in the same
amounts.
9. That the plaintiff has filed statement of its bank accounts
which show the money has been transferred to the account of the
pseudo name of the plaintiff and then from there the defendant
no.1 had transferred the money in his account and that of defendant
no.2. The accounts allegedly show the payments were made to the
seller of the flat from such misappropriated money.
10. Thus a serious question qua ownership/ title of the subject
property is raised by the plaintiff and hence at this stage where the
evidence is being led, it would not be appropriate to allow this
application. The stands taken by either parties shall be clear only
after the evidence is complete and hence this application is
dismissed at this stage. The defendant no.2 may apply once the
evidence comes on record. Ordered accordingly.
CS(COMM) 180/2017
11. List for direction on 24.05.2018.
YOGESH KHANNA, J
MARCH 06, 2018
DU
