1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 677 OF 2009 Mr. Gautam Patel son of Ramanbhai Patel, aged 54 years, married, businessman, residing at 'Abhijit', Plot No.B-9, 9th & 10th Floor, Kapole C.H.S. Ltd., Junction of 11th & V. M. Road, JVPD Scheme, Juhu, Mumbai – 400 049. ... Petitioner versus 1. Mr. John Custodio Pinto. 2. Mrs. Verodiana Pinto. Both residing at H.No.187/4, Old Goa, Tiswadi, Goa. 3. Mrs. Maria Luisa Veronica Fernandes, widow of late Andre Custodio Adeline Fernandes, 4. Ms. Maria Noamia Augusta D'Silva Fernandes, daughter of late Andre Custodio Adeline Fernandes, All residing at H.No.816, Main Road, St.Agostinho, St. Cruz, Ilhas, Goa. 5. Mrs. Maria Noamia Augusta D'Silva Fernandes, daughter of late Andre Custodio Adeline Fernandes, married to 2 6. Mr. Hipolito Joseph D'Silva. Both residents of B-2, Sacred Heart Society, St. Joseph Avenue, Santa Cruz(West), Opp. Wellingdon Club, Mumbai 400 054. ... Respondents Shri Sudin M. S. Usgaonkar, Advocate for the Petitioner. Shri V. P. Thali, Advocate for Respondent Nos.3, 4, 5 and 6. Shri E. Dias, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 15TH JULY, 2010. JUDGMENT Heard. 2. The Petitioner herein is plaintiff in Special Civil Suit No.97 of 2007. The Petitioner's application for attachment of the suit property came to be rejected by Order dated 20-4-2009 of the learned Adhoc District Judge, Panaji. Hence, this Writ Petition challenging the said Order. 3. According to the plaintiff, the suit property comprises of 35,335 sq. meters of property surveyed under No.42/2. There appear to be too many 3 claims regarding the property surveyed under No.42/2 which belonged to Andre Custodio Adelino Fernandes who expired in the year 1984 leaving behind his widow Defendant No.3; his daughters Verodiana, Defendant No.2, married to Defendant No.1; Maria Franca Fernandes, Defendant No.4; Maria Noamia Augusta D'Silva, Defendant No.5, married to Defendant No.6; and Cruzinha Fernandes who expired in the year 2002. Some of these claims can be seen from para 18(a) to (e) of the plaint, itself. It appears that there was a power of attorney executed by the widow and the said daughters dated 24-5-1995, namely Defendant Nos.3, 4, 5 and the said Ms. Cruzinha Fernandes in favour of Defendant No.6 authorizing him to develop and sell the suit property. 4. There was an agreement between the Defendants and M/s Pasa Properties and Holdings by which the Defendants had agreed to sell the suit property to the said M/s Pasa Properties and Holdings dated 21-4-2006 which was cancelled and revoked by letter dated 16-9-2006 by the said Defendants, as a result of which the said M/s Pasa has resorted to arbitration proceedings before the Additional District Court in which an Order was passed dated 30-9-2006 directing the parties to maintain a status quo. 5. Based on the said power of attorney dated 24-5-1995, Defendant No.6 in turn appears to have executed another power of attorney in favour of 4 his sister-in-law, the said Defendant No.2 conferring on her the very powers which were conferred on him under power of attorney dated 24-5-1995. The plaintiff by virtue of agreement dated 8-6-2006 agreed to purchase from Defendant Nos.1 and 2 the suit property for a consideration of Rs.5,26,00,000/-. This agreement was signed by Defendant No.1 as well as Defendant No.2 on behalf of herself and as attorney of Defendant Nos.3, 4, 5 and 6 and the said Cruzinha, who by then had already expired. The said agreement has been revoked and cancelled by letter dated 8-6-2006. Plaintiff filed the suit for recovery of amount paid to the Defendants under the said agreement dated 8-6-2006 in the sum of Rs.2,01,00,000, and for damages of Rs.10,00,00,000/- . In other words, the plaintiff's suit is for the recovery of money only since according to the plaintiff the Defendants have cheated him. Plaintiff has not filed for specific performance of the said agreement nor for sale of the suit property. 6. Further, it appears that subsequently, the suit property has been sold by sale deed dated 14-8-2006 by Defendant No.2, as attorney of Defendant Nos.3 to 6, in favour of Defendant No.1 and their son Shri Russel Pinto who is not a party to the suit. 7. The plaintiff with a bare averment that the Defendants were in a habit of doing multiple sales of properties to different parties and because of 5 that he apprehended that the Defendants would dispose of the suit property and obstruct the execution of the decree that may be passed against him, filed the said application for attachment in terms of Order 38, Rule 5, C.P.C. which has been rejected by the learned trial Court by the impugned Order. It appears that the Defendant Nos.1 and 2 have raised a counterclaim against the plaintiff for breach of the said agreement dated 8-6-2006. 8. The learned trial Court rejected the application observing that the ingredients of Order 38, Rules 5 and 6 were not satisfied, further observing that it was well settled that the remedy for attachment before Judgment is extraordinary and the Court must insist upon strict proof of allegations. 9. The question of giving security, whether argued or not before the learned trial Court, would come only in case the plaintiff had satisfied the predicates of clauses (a) or (b) of Sub Rule 1 of Rule 5, Order 38, C.P.C. This Court way back in Nowroji Pudumjee v. Deccan Bank Ltd.(AIR (8) 1921 Bom. 69) had observed that before an order of attachment before Judgment can be made, the Court must be satisfied by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property ... A man is not debarred from dealing with his property because a suit has been filed against him. Otherwise in every case in which a suit is 6 brought against a man if during the pendency of the proceedings he sells some of his properties that would be at once a sufficient ground to satisfy the Court that he is disposing of his property with intent to defraud the plaintiff. Clearly there must be additional circumstances before the Court must be satisfied that such an intention exists. 10. Again, this Court in Subhash Bhimashankar Kalase v. State Bank of India(AIR 2005 Bombay 165) has observed that the provision of (Order 38, Rule 5) would apply where the Defendant is about to dispose of whole or part of his property and not where the property has already been disposed of much before the filing of the suit. 11. The Apex Court in Raman Tech. & Process Engineering Company and another v. Solanki Traders((2008 2 SCC 302) has observed that Order 38, Rule 5 does 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, and equally it is well settled that even where the defendant is removing or disposing of 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. The Apex Court has stated that the power under Order 38, Rule 5, C.P.C. is a drastic and extraordinary power, and must be used sparingly and strictly in 7 accordance with the Rule and its purpose is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38, Rule 5 has a leverage for coercing the defendant to settle the suit claim should be discouraged. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. 12. In my view the plaintiff certainly could not have got an Order in his favour in terms of Order 38, Rule 5, C.P.C. with a casual averment that the Defendants were in the habit of doing multiple sales of the same property to different parties, and, therefore he apprehended that the Defendants would dispose of the suit property and obstruct the execution of the decree that may be passed against them. As things stand, there is already an Order of the District Court to maintain status quo. 13. Considering the facts of the case, in my view, the impugned Order could not be faulted. There is no merit in this Writ Petition. Consequently, the same is hereby dismissed, with costs. N. A. BRITTO, J. RD