IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.393 of 2007. NOTICE OF MOTION NO.393 of 2007. NOTICE OF MOTION NO.393 of 2007. IN IN IN SUIT NO.3025 of 2006. SUIT NO.3025 of 2006. SUIT NO.3025 of 2006. State Bank of India ..Plaintiff versus Moses Nicholas Anthony & Anr. ..Defendants Ms.Shyamali Hajela i/b. H.M.Legal Associates for the Plaintiffs CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. P.C. 1. Plaintiffs, State Bank of India have taken out this notice of Motion and have prayed that Order attaching the suit premises be issued in accordance with the provisions of Order XXXVIII Rule 5 of the Code of Civil Procedure, and also prayed for Order of injunction restraining the defendants from dealing with, selling, disposing or parting with the property more particularly set out in Exhibit "B". The plaintiffs have advanced loan to the Defendant No.1 and Defendant No.2 is the guarantor. The motion was served upon the defendants. However, nobody has appeared on behalf of the defendants. Affidavit of service is filed. The plaintiff in support of Notice of Motion has -2- positively stated that some of Rs.3,90,000/- and odd is outstanding as of 30.6.2005 and defendants have failed to pay the said amount from time to time. 2. The learned advocate for the Plaintiff contended that in the fitness of the things Order in terms of Order XXXVIII Rule 5 of C.P.C. is necessary. Considering the affidavit in support of the Notice of Motion, I am inclined to observe that case for Order under Order XXXVIII Rule 5 is not made out, at the same time Order of injunction in terms of prayer clause (b) restraining the defendants from creating thrid party rights of whatsoever nature can be granted. 3. In view of the above, I am inclined to dismiss the motion in terms of prayer clause (a) and grant the same in terms of prayer clause (b). Hence the Order. ORDER i. Motion is dismissed so far as prayer clause (a). -3- ii. Motion is made absolute in terms of prayer clause (b). iii. Defendants to pay to plaintiffs cost of motion. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) -4- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.3025 of 2006. SUIT NO.3025 of 2006. SUIT NO.3025 of 2006. State Bank of India ..Plaintiff versus Moses Nicholas Anthony & Anr. ..Defendants Ms.Shyamali Hajela i/b. H.M.Legal Associates for the Plaintiffs CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. P.C. 1. The learned advocate for the defendant No.1 has filed the written statement on behalf of the defendant No.1. Writ of Summons is served upon the defendant No.2. No written statement is on record. Adjourned to 29.9.2008 for issues. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)