Telangana High Court

Chunchu Lachanna vs Bogi Rajitha on 2 July, 2024

Author: P. Sree Sudha

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No. 3787 of 2023

ORDER:

This Civil Revision Petition is filed aggrieved by the order,

dated 28.11.2023, passed in I.A.No.193 of 2021 in O.S.No.69 of

2021 by the learned Principal Junior Civil Judge, Mancherial.

2. O.S.No.69 of 2021 is filed by petitioner/plaintiff for recovery

of amount of Rs.20,00,000/-. During the pendency of the Suit,

I.A.No.193 of 2021 is filed by petitioner/plaintiff under Order 38

Rule 5 of C.P.C r/w. Section 151 of C.P.C to direct the

respondent/defendant to furnish security for the suit amount of

Rs.20 lakhs. The trial Court after considering the arguments of

both sides dismissed the application on 28.11.2023. Aggrieved by

the order of the trial Court, the petitioner herein preferred the

present Civil Revision Petition.

3. Heard both sides. Perused the record.

4. Learned counsel for petitioner contended that the trial Court

erroneously dismissed the petition filed by the petitioner herein

under Order 38 Rule 5 r/w Section 151 of C.P.C to direct the

respondent/defendant to furnish security for the suit amount of

Rs.20 lakhs and if she fails, to direct the garnishee of her i.e.,

Mandal Educational Officer, Nennel to withhold the salary benefits

of respondent/defendant. It is open to the Court to look to the

conduct of the parties immediately before suit and to examine the

surrounding circumstances and to draw an inference as to

whether the defendant is about to dispose of the property and if

so, with what intention. The Court is entitled to consider the

nature of the claim and the defense put forward. Therefore,

requested this Court to set aside the order of the trial Court.

5. Petitioner/Plaintiff filed the suit for recovery of amount of

Rs.20 lakhs with interest @ 1% per month. Petitioner/Plaintiff

and respondent/defendant are acquaintance with each other from

20 years, as such defendant borrowed Rs.16 lakhs with interest

from the petitioner for her personal and family necessities.

Respondent/defendant issued the banker cheque bearing

No.077699, dated 11.01.2021 drawn on IDBI Bank, Mancherial

Branch in favour of petitioner/plaintiff. Petitioner/plaintiff

presented the said cheque in State Bank of India, Main Branch,

Mancherial on 11.01.2021. The bank authorities returned the

dishonored cheque with return memo dated 13.01.2021 with an

endorsement "FUNDS INSUFFICIENT" to the petitioner/plaintiff.

Petitioner came to know that respondent is going to take voluntary

retirement from her services. Petitioner got issued legal notice

dated 16.01.2021 through his counsel and the notice was served

upon the respondent/defendant but she did not pay the amount,

as such the petitioner filed the suit.

6. In the counter filed by respondent/defendant, she stated

that she is Singareni employee and she is having 15 years of

service and reputed person in the society. She did not borrow any

amount from the petitioner/plaintiff or any person. Petitioner

created the alleged promissory note and filed false suit. Therefore,

requested to dismiss the application.

7. The main contention of the petitioner is respondent

borrowed an amount of Rs.16 lakhs and as such she filed suit for

suit recovery of an amount of Rs.20 lakhs with interest and

petitioner came to know that respondent/defendant is going to

take voluntary retirement as such, petitioner filed I.A.No.193 of

2021 to direct the respondent/defendant to furnish security for

the suit amount of Rs.20 lakhs and if she fails, to direct the

garnishee of her i.e., Mandal Educational Officer, Nennel to

withhold the salary benefits of respondent/defendant. But the

respondent stated that still she is having 15 years of service, as

such the question of taking voluntary retirement does not arise.

8. Learned counsel for petitioner relied upon a decision in

Surender Singh Bajaj Vs Kitty Steels Limited and Another 1,

in which the relevant provision of Sub-Section(1) of Section 60

reads as follows:

"60. Property liable to attachment and sale in execution of a decree- (1) - The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank- notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment- debtor, or over which, or the profits of which, he has a disposing power 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."

9. If defendant is trying to leave beyond the jurisdiction of the

Court and that she is attempting to withdraw the money deposited

and if the attachment before judgment is not granted it would be

very difficult for the petitioner/plaintiff to recover their dues from

respondent/defendant.

AIR 2003 AP13

10. In a Division Bench of the High Court of Andhra Pradesh in

Chairman and Managing Director, R.P.N.Nigam Limited, New

Delhi Vs Rambachane Singh, dealing with necessary conditions

for ordering an application filed under Order 38, Rule 5 of CPC

was pleased to hold:

".....Such an order is not to be passed in a routine manner merely for the asking for it but that the Court has to be satisfied on tangible materials placed before it that there are attempt at alienation and that the steps are taken so as to delay or obstruct the judgment that may be ultimately passed against the defendant. Before passing an order, the judgment is first of all to be called upon to furnish security in the shape of specific sum to produce and place at the disposal of the Court when required, the property specified by the plaintiff in his petition or such portion of it as may be sufficient to satisfy the decree or call upon him to show-cause as to why he shall not furnish security. But such an order can be passed only after the primary satisfaction of the obstructive conduct of the defendant. The ultimate attachment order can be passed only of the defendant either fails to show- cause why the security shall not be furnished or fails to furnish the security as required....."

11. In the present case, the respondent/defendant is still in

service. It is apprehension of the petitioner/plaintiff that

respondent/defendant is going for voluntary retirement and his

apprehension is not substantiated with any document and

respondent/defendant also disputed that she is still having 15

years as such, it cannot be presumed that she will go for

voluntary retirement for payment of amount. In fact she also

stated that she did not borrowed any amount from the

petitioner/plaintiff. As such, it is to be decided by the trial Court

that petitioner/plaintiff is entitled for recovery of amount or not.

As such, the application filed before the Court is premature and it

is not in accordance with Order 38 rule 5 of C.P.C and under