IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION NO. 276 OF 2008 IN SUIT NO. 3375 OF 2007 National Film Development Corporation Ltd. .... Plaintiff. V/s. Aditya Enterprise & Anr. .... Defendants. ....... Mr. Arun Monga with Ms. Deepa Bajaj for the Plaintiff. None for the Defendants. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 13TH MARCH 2008. P.C. :- The Plaintiff has instituted a regular suit for the recovery of a monetary claim against the First Defendant. In that suit, a Notice of Motion has been taken out seeking a direction for a deposit by the Defendant in Court of money, equivalent to the recoverable amount as mentioned in the main prayer of the suit or for a direction to the First Defendant to furnish security sufficient to answer the claim in the suit. In an appropriate case, where the Plaintiff establishes the ingredients necessary for an attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908, it is open to the Court to direct the Defendant, within the time to be fixed by it, either to furnish security, in such sum as may be specified in the order or to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree. The condition precedent for the exercise of jurisdiction under Order 38 Rule 5 is that the Court must be satisfied on affidavit that the Defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about – (a) to dispose of the whole or any part of his property; or (b) to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. No case has been made out with reference to the provisions of Order 38 Rule 5, nor has such a case been urged before the Court in submissions by Counsel. The submission is that the Plaintiffs have a good case on the merits of the claim in the suit. The claim of the Plaintiffs would have to be established and proved on the basis of evidence at the trial of the suit. In the absence of a prima facie case under Order 38 Rule 5, this Court would not be justified in either directing the Defendant to deposit the amount of the claim in the suit or to call upon the First Defendant to furnish collateral or other security. Moreover, it would be necessary to observe that the suit in the present case is admittedly not a summary suit under Order 37 of the Code of Civil Procedure, 1908 where the Court has the power to inter alia impose a condition of deposit while granting leave to defend the suit. Such is not the situation here. In the circumstances, the Notice of Motion is misconceived and shall stand dismissed. However, having due regard to the interests of justice, the trial of the suit is expedited. ------