Sri Bandu Rambabu B.V.S.R. Murthy vs Sri Palwancha Rama Rao
2022 Latest Caselaw 3762 Tel

          THE HON'BLE SMT. JUSTICE P. SREE SUDHA

          CIVIL REVISION PETITION No.2338 of 2019

ORDER :

This Civil Revision Petition is filed aggrieved by the

order dated 30.08.2019 passed in I.A.No.510 of 2019 in

O.S.No.92 of 2019 by the Special Sessions Judge for Trial of

Cases under SCs. and STs. (POA) Act-cum-VII Additional

District and Sessions Judge at Khammam, whereunder the

said application filed by the respondent herein was allowed

and ad-interim attachment order passed by this Court on

10.07.2019 in respect of the petition schedule property,

which was effected on 19.07.2019, is made absolute.

The respondent/plaintiff herein filed a suit O.S.No.92 of

2019 on the file of the Principal District Judge, Khamman for

cancellation of the Agreement of Sale and for return of the

amount paid by him to the petitioner/defendant under the

Agreement of Sale dated 24.05.2017, which became

unenforceable and inexecutable.

The plaintiff in the suit stated that the defendant

offered to sell the vacant land admeasuring Ac.0-20 guntas

in Sy.No.239/1/1 of Burhmanpuram, situated at By-pass

road, Khammam and he has agreed to purchase the said

land for a total sale consideration of Rs.3,06,00,000/- and

accordingly, both the plaintiff and the defendant have

entered into an agreement of sale on 24.05.2017 and on

the same day, he had paid an amount of Rs.25,00,000/-

and he also paid certain amounts on different dates and

thus, paid total amount of Rs.1,06,00,000/- to the defendant

and he has to pay balance of Rs.2,00,00,000/- and the

payments were acknowledged by the defendant on the

reverse of the said agreement of sale. Under the

agreement of sale, it is also stipulated that within ten days of

agreement, the defendant shall clear the litigation in

O.S.No.66 of 2008 and on obtaining 'No Objection

Certificate' convert the agricultural land into non-

agricultural land from the concerned authorities.

The plaintiff further stated that in the last week of

October, 2018, on enquiry, he came to know that out of the

land Ac.1-23 gts., in Sy.No.239 purchased by the defendant

through registered Sale Deed, an extent of 2334 sq. yards

was sold through three registered sale deeds and an extent

of Ac.0-32½ gts. was acquired by the Government under

the Land Acquisition Act and the defendant had received

compensation for the land so acquired. As per the record,

he is having only the land admeasuring Ac.0-10 gts. in his

possession, as such, there is no possibility of conveying title

and possession of Ac.0-20 gts., by defendant in his favour

and thus, in the last week of October, 2018, he requested

the defendant to refund an amount Rs.1,06,00,000/-.

Instead of returning the said amount, the defendant got

issued a legal notice on 01.10.2018 admitting the payment

of Rs.1,06,00,000/- and demanding him to pay the balance

sale consideration. For which, he got issued reply notice on

05.11.2018 and filed the suit for recovery of amount.

In the written statement filed by the defendant, he

admitted regarding execution of the agreement of sale

with the plaintiff and payment of Rs.1,06,00,000/- and stated

that he is having the land admeasuring Ac.1-29 gts., in

Sy.No.239, out of which, the land admeasuring Ac.0-13½

gts., was acquired by the Government through Award No.5

of 1988, dated 20.10.1988 and the land admeasuring Ac.0-

19 ¼ gts., was acquired by the Government though Award

No.19 of 2002 dated 30.05.2002 and an extent of 2334 sq.

yards, which is equivalent to Ac.0-19 gts., was sold by him to

one Mekala Bikshamaiah and the remaining available land

i.e., Ac.0-17 ¼ gts., as per the pattedar pass book issued by

the competent revenue authorities in his favour in the year

1995 itself and that apart, he is also having the land Ac.0-03

gts., and thus, he is in possession of the land admeasuring

Ac.0-20 gts. As per the agreement of sale, he had fulfilled

two conditions i.e., resolving the dispute in O.S.No.66 of 2008

and getting the land conversion order from the RDO,

Khammam and got issued a legal notice dated 01.10.2018

to the plaintiff to pay balance sale consideration of

Rs.2,00,00,000/-, otherwise he has to forgo the amounts paid

by him, as he got every right to forfeit all the amounts paid

by the plaintiff under the Agreement of Sale dated

24.05.2017, The time is the essence of the contract and the

plaintiff hatched a plan to postpone the payment of

balance amount and levelled false allegations in the legal

notice dated 01.10.2018. He further stated that by the date

of agreement of sale, the land of Mekala Bixmaiah to an

extent of 419 sq. yards was purchased by him as

subsequently, the plaintiff purchased the said plot. As per

the clause under the sale agreement, even after settlement

of two issues, as mentioned in the Sale Agreement, if the

plaintiff does not fulfill his part of obligation, he has to forgo

the amount paid by him and the sale agreement

automatically gets cancelled. As such, the plaintiff cannot

claim any refund of amount from the defendant.

During pendency of the suit, the plaintiff filed

I.A.No.510 of 2019 in O.S.No.92 of 2019 seeking attachment

of suit schedule property before judgment i.e., Ac.0-20 gts.

in Sy.No.239/1/1 of Burhranpuram, Khammam pertaining to

the defendant. The trial Court allowed the said application.

Aggrieved by the said order, the petitioner/defendant

preferred this Revision.

Learned counsel for the petitioner stated that the

petitioner is always ready and willing to execute the

registered Sale Deed in favour of the respondent, but the

respondent failed to perform his part of contract and the

condition stipulated under Order 38 Rule 5 of CPC was not

satisfied and it is for the respondent to show that (1) the

petitioner/defendant is about to dispose of the whole or

any part of his property; or (2) the petitioner/defendant is

about to remove the whole or any part of his property from

the local limits of the jurisdiction of the court and (3) that the

petitioner/defendant is intending to do so to cause

obstruction or delay in the execution of any decree that

may be passed against him. But, he failed to do so and

made vague allegations against him. The respondent has

not given the source of information and belief in the matter

and therefore, requested the Court to set aside the order of

the trial Court.

The facts, before the trial Court, between both the

parties are that they have entered into an agreement of

sale and in pursuance of the same, Rs.1,06,00,000/- was

paid by the plaintiff and the balance of Rs.2,00,00,000/- has

to be paid on compliance of two conditions imposed by

the plaintiff. The defendant stated that he had complied

the said conditions and requested the plaintiff to pay the

balance sale consideration for execution of the registered

Sale Deed, but the plaintiff came up with a vague plea that

the present available extent of land is only Ac.0-10 gts., but

not Ac.0-20 gts., as per the sale agreement and filed the suit

for refund of Rs.1,06,00,000/- with interest.

Learned counsel appearing for the petitioner relied

upon a decision of the Hon'ble Apex Court in RAMAN TECH.

& PROCESS ENGG. CO. AND ANOTHER Vs. SOLANKI

TRADERS1, wherein it was held as follows :-

4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words "to obstruct or delay the execution of any decree that may be passed against him" in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.

He also relied on a decision rendered by the Delhi

High Court in BANK OF INDIA Vs. NATIONAL TILE WORK

1 (2008) 2 Supreme Court Cases 302

INDUSTRIES AND OTHERS2, wherein the Delhi High Court held

as follows :-

(5) The object of entire Order xxxviii of the Code is to safeguard the interest of the plaintiff and thwart any possible attempt by the defendant to obstruct or delay the satisfaction of decree which might be passed against the defendant and to achieve this purpose, Rule 5 thereof enables the Court to issue attachment before judgment of the property of the defendant so that any attempt on the part of the defendant to delay or defeat the satisfaction of the decree is forestalled. In accordance with the provisions of Rule 5 of Order xxxviii of the Code, it is incumbent upon the plaintiff to satisfy the Court that the defendant has intention to obstruct or delay the execution of any decree that may be passed in this suit and for this purpose the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. It is only on the satisfaction of all these conditions that the plaintiff can be said to be entitled to an order of attachment before judgment in terms of Order xxxviii Rule 5 of the Code. Thus, before this Rule 5 can be invoked it must, inter alia, be shown by the plaintiff that defendant has acted or is about to act with intent to obstruct or delay the execution of any decree that may be passed against him. The Court must be satisfied that all the ingredients of the rule exist. Mere. fact that no harm would be caused to defendant or that defendant would not be prejudiced by such an order could be no ground to pass order under Order xxxviii Rule 5 of the Code for attachment before judgment. It is in its very nature an extra-ordinary jurisdiction and has to be exercised sparingly and strictly in accordance with procedure prescribed by the Code. There must be some definite evidence on these points and not mere vague allegations. The plaintiff must also prove a

2 AIR 1989 Delhi 60

prima facie case in his favor. The approach of this Court has essentially to be very cautious and not casual or routine like.

Now, it is for this Court to examine whether the order

passed by the trial Court is on proper appreciation of facts

or not ?

Though the petitioner stated that the respondent is

intending to sell away the land admeasuring Ac.0-20 gts.,

he has not stated from which source he got that information

and he has not filed any affidavit of the person through

whom he got such information. He simply made an

application that the plaintiff is trying to sell away the

property and if at all he succeeds in his efforts, the

defendant cannot recover the amount and thus sought for

attachment before judgment. The power granted under

Order 38 Rule 5 of CPC is drastic and extraordinary power

and it should not be exercised mechanically or for merely

asking it should be used separately and strictly in

accordance with Rules.

This Court should also satisfy that there is a reasonable

chance of decree being passed in favour of the plaintiff

and against the defendant and thus the Court should be

satisfied that the plaintiff has a prima facie case before

exercising the power under Order 38 Rule 5 CPC.

A perusal of the agreement of sale shows that as on

the date of agreement, Rs.25,00,000/- was paid and within

ten days intended to pay another Rs.25,00,000/- with a

condition that O.S.No.66 of 2008 has to be cleared and

agriculture land is to be converted into non-agriculture and

the balance is to be paid within 90 days and then sale

deed is to be executed. If the amount is not paid within 90

days, after clearance of the two problems, Rs.50,00,000/- is

not refundable and the agreement of sale stands

cancelled.

Admittedly, the plaintiff filed the suit for recovery of

the part of sale consideration on the ground that the

defendant is having only an extent of Ac.0-10 gts., instead

of Ac.0-20 gts., whereas the defendant stated that the land

admeasuring Ac.0-20 gts., is available with him and he is

ready to execute register Sale Deed in favour of the plaintiff

on payment of balance sale consideration of

Rs.2,00,00,000/-. He also stated that though he has already

complied the conditions imposed by the plaintiff, the

plaintiff filed the suit without any basis. Moreover, the

defendant clearly stated that even after compliance of the

conditions imposed by the plaintiff, if the plaintiff failed to

pay the balance amount within the time stipulated in the

agreement, the defendant is having every right to forfeit

the entire amount already paid by the plaintiff, as such, the

plaintiff is not entitled for refund of the amount.

In the suit, the plaintiff sought for refund of the amount

and it is for the trial Court to decide whether he is entitled

for the same or not, basing on the terms and conditions

incorporated in the Agreement of Sale. Therefore, it cannot

be said that the plaintiff has prima facie case and thus,

there is a reasonable chance of getting a decree in his

favour. Moreover, the plaintiff mainly contended that the

defendant is having only an extent of Ac.0-10 gts. in his

favour and as such, it is impossible for him to convey

registered Sale Deed to an extent of Ac.0-20 gts. But, he

claimed attachment before judgment regarding extent of

land admeasuring Ac.0-20 gts., of the defendant on the

ground that he is trying to alienate the same, whereas the

defendant in the suit as well as in legal notice clearly stated

that even as on today, he is prepared to execute the

registered Sale Deed in favour of the plaintiff and he is not

entitled for refund of the amount. Therefore, the order of

trial Court granting attachment of suit schedule property

before judgment is devoid of merits and the same is liable

to be dismissed.

In the result, the Civil Revision Petition is allowed by

setting aside the order dated 30.08.2019 passed in

I.A.No.510 of 2019 in O.S.No.92 of 2019 by the Special

Sessions Judge for Trial of Cases under SCs. and STs. (POA)

Act-cum-VII Additional District and Sessions Judge at

Khammam. No costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________ P. SREE SUDHA, J Date: 18.07.2022 Prv

THE HON'BLE SMT. JUSTICE P. SREE SUDHA

C.R.P.No.2338 of 2019

___.07.2022

Prv