Sandeep Yelamanchi vs Smt Rajyalakshmi
2022 Latest Caselaw 1850 Kant

                                        W.P.NO.20045 OF 2019
                                 1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                            BEFORE

        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

       WRIT PETITION NO.20045 OF 2019 (GM-CPC)

BETWEEN:

SANDEEP YELAMANCHI
S/O Y.V.R.S. RAO
AGED ABOUT 39 YEARS
R/AT 16720, 5TH PLACE
NORTH PLYMOUTH
MN55446, USA

REP BY GPA HOLDER
SMT. AKKINA VIJAYALAKSHMI
W/O LAKSHMIPATHI RAO REDDI
AGED ABOUT 62 YEARS
R/AT 3656, N PINE VALLEY
LOOP LECANTO, FL 34461
USA

ALSO RESIDING AT
FLAT NO.25 BLOCK
A SEA SHELLS APARTMENT
DASPALLA HILLS
VISAKHAPATNAM-530003 (AP)
                                              ...PETITIONER
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)

AND:

1.    SMT. RAJYALAKSHMI
      D/O LATE S. RAMALINGESHWARA RAO
      AGED ABOUT 63 YEARS

2.    KARTHIK KRISHNA
      AGED ABOUT 39 YEARS
      S/O M. KRSIHNA
                                               W.P.NO.20045 OF 2019
                                     2




     BOTH ARE RESIDING AT NO.170/A
     "TARAKA" 3RD FLOOR, 10TH MAIN
     RMC EXTENSION, SADASHIVANAGAR
     BENGALURU - 560080
                                           ... RESPONDENTS
(BY SRI. K. SUBBARAJU GUPTHA, ADVOCATE FOR R1 & R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN
O.S.NO.3983/2017 ON THE FILE OF THE LXIV ADDITIONAL CITY
CIVIL      JUDGE,       BANGALORE       (CCH-65)       AND
SET ASIDE THE ORDER DATED 16.01.2019 ON I.A.NO.1 IN
O.S.NO.3983/2017 PASSED BY THE LXIV ADDITIONAL CITY CIVIL
JUDGE, BANGALORE (CCH-650) ANNEXURE-L AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

1. The petitioner is before this Court seeking the

following reliefs:

i) Call for the records in O.S.No.3983/2017 on the file of the LXIV Additional City Civil Judge, Bangalore (CCH-65)

ii) Set aside the order dated 16.01.2019 on IA No.1 in O.S.No.3983/2017 passed by the LXIV Additional City Civil Judge, Bangalore (CCH-65) Annexure-L.

iii) Dismiss IA No.1 in O.S.No.3983/2017 on the file of the LXIV Additional City Civil Judge, Bangalore (CCH-65)

iv) Pass such other orders or directions as this Hon'ble Court deems fit in the interest of justice and equity."

W.P.NO.20045 OF 2019

2. The suit in O.S.No.3983/2017 had been filed

seeking for a direction to the defendant to pay a

sum of Rs.1,70,98,000/- to the plaintiffs along with

future interest @ 12% p.a.

3. The premise on which the suit was filed is that the

defendant in the suit is the son-in-law of the 1st

plaintiff and brother-in-law of the 2nd plaintiff, he

having been married to late Kavya Krishna,

daughter and sister of the 1st and 2nd plaintiffs

respectively and had been advanced a sum of

Rs.1,66,00,000/- for the purpose of obtaining a

green card. The said amounts having been

obtained by way of sale of two apartments as

mentioned in Para 8 of the plaint and to establish

that the amount was transferred into the joint

account of the defendant and late Kavya Krishna,

the statement of account in H.S.B.C. Bank Limited

has also been produced.

W.P.NO.20045 OF 2019

4. Unfortunately, the said Kavya Krishna expired due

to cancer. The plaintiffs instituted the suit for

recovery of the said amount since the same had

been lent as a loan and that the plaintiffs contended

that the defendant refused to pay the amounts on

the expiry of Kavya Krishna, leaving the plaintiffs

with no other remedy, an application under Order

38 Rule 5 and 11-A read with Order 21 Rule 52 and

46(1)(c)(iii) of CPC seeking for an attachment of

funds before the judgment lying in the joint account

of the defendant and late Kavya Krishna.

5. The defendant filed the written statement and

requested the Court to treat the written statement

as objections to the application filed under Order 38

Rule 5 of CPC. In the said written statement, it is

contended that the funds in the joint account were

that of Kavya Krishna and were not part of the loan

as alleged by the plaintiffs and that the said Kavya

Krishna has left behind a Will bequeathing the W.P.NO.20045 OF 2019

entire amounts to the defendant, as such, the

plaintiffs cannot claim the said amount and

therefore, the question of attachment of funds

before the judgment does not arise. It is further

contended that there is no such requirement of

holding any funds in the account for an applicant to

obtain a green card and as such, the claim of the

plaintiffs in this regard is also false. The suit itself

being false and baseless, the question of

attachment of funds before judgment would not

arise.

6. The arguments were heard by the trial Court and by

way of the impugned order, an attachment order

was passed. It is aggrieved by the same, the

petitioner-defendant before this Court.

7. Sri.K.Chandranath Ariga, learned counsel for the

petitioner would submit that the trial Court has not

properly appreciated the averments made in the

written statement and the order passed by the trial W.P.NO.20045 OF 2019

Court is not a reasoned one. The trial Court not

having adverted to the averments made in the

written statement, the said order of attachment is

liable to be quashed d by this Court by dismissing

the application filed under Order 38 Rule 5 of CPC.

8. Per contra, the learned counsel for the respondent

would submit that the trial Court has taken into

consideration that the amounts have been lent by

the plaintiffs as a loan to the defendant and the

order passed by the trial Court is proper and

correct.

9. Heard the learned counsel for the petitioner and

learned counsel for the respondent and perused the

records.

10. Though it is contended by the petitioner that the

amounts were not lent by the plaintiffs and that the

said amounts were not required for the purpose of

applying for a green card, despite repeated W.P.NO.20045 OF 2019

enquiries, the learned counsel for the petitioner is

unable to point out the source of funds lying in the

said account to be attached except to point out to

the various averments made in the written

statement wherein the claim of the plaintiffs having

being denied.

11. The order of the trial court could have been better

worded with better reasons. However, taking into

consideration the facts of the matter that the

plaintiffs had produced necessary documents to

establish the transfer of funds from their account to

the joint account maintained by the defendant and

late Kavya Krishna who is none other than the

daughter and sister of the 1st and 2nd plaintiffs

respectively, the defendant has not been able to

prove that the amount belongs to him and/or not

transferred by the plaintiffs from their HSBC bank

account. The trial Court has held that the

defendant has neither furnished any security nor W.P.NO.20045 OF 2019

shown cause why the order of attachment should

not be passed. While doing so, the trial Court has

taken into account that an amount of

Rs.1,66,00,000/- is lying in the joint account in the

names of the defendant and late Kavya Krishna and

that the said amounts had been transferred by the

plaintiffs to the said account.

12. In my considered opinion, the said aspect of

transfer of the funds by the plaintiffs to the

defendant to the said joint account in the absence

of defendant pointing out or establishing that the

said amounts were not that of the plaintiffs and that

the amount lying in the account belongs to the

defendant, would be sufficient for the trial Court to

pass an order of attachment before judgment.

13. The averments made in the written statement are

not at this stage established by producing any

document by the defendant. However, if at all

during the course of evidence led by the defendant, W.P.NO.20045 OF 2019

any documents are produced, the trial Court would

have to consider the same while passing the final

judgment.

14. In view of the above, I am of the considered

opinion that there are no grounds that have been

made out by the defendant to lift the order of

attachment and/or to set aside the order dated

16.01.2019 passed by the trial court on I.A.No.I in

O.S.No.3983/2017. Hence, the Writ Petition stands

dismissed.

15. It is made clear that the observations made in the

present order are restricted to the consideration of

the order passed by the trial Court and the trial

Court shall pass final judgment without being

influenced by the observations made herein.

Sd/-

JUDGE

Prs*