IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K. SHARMA A.No.4270 of 2011 in C.S.No.578 of 2011 ORDER This application has been moved by the applicant, under Order XIV Rule 8 of Original Side Rules, read with Order 38 Rules 5 & 6 of the C.P.C., directing the first non-applicant/defendant to furnish security for the suit amount of US$ 1,00,263 (equivalent to Rs.45,61,966.50), failing which an order of attachment before judgment to an extent of US$ 1,00,263 (Equivalent to Rs.45,61,966.50) lying to the credit of account No.43605012460, held by the first non-applicant/defendant, with the second non-applicant/defendant as mentioned in the Schedule, pending the disposal of the suit. 2. The applicant/plaintiff has running account with the first non-applicant/defendant, for supply of the materials from time to time. The claim of the applicant/plaintiff is that as on date, a sum of US$ 1,00,1,00,260due and payable by the first non-applicant/defendant to the applicant/plaintiff, for which the suit for recovery has been filed. 3 In support of the prayer in this application, the averments made in the affidavit reads as under: "23.It is further submitted that the constitution of the 1st defendant is not known to the plaintiff herein nor does the plaintiff know whether the 1st defendant has to financial capability to be able to pay the decree amount, if the suit is decreed in full after the trial is completed. This submission is made in view of the fact that, though an admission of liability to the extent of US$ 58,281.75 has been made by the 1st defendant as early as 21st May 2011, the 1st defendant is yet to take steps to atleast transfer the admitted liability to the plaintiff herein and there has been only utter silence from the end of the 1st defendant after the admissions as to its liability. After the reply notice, till date 1st defendant have not replied to any f the calls made by the plaintiff for the payment the said amount. Therefore, the petitioners/plaintiffs are constrained to file the present suit for recovery of the sum of US$ 1,00,263 equivalent to Rs.45,61,966..50/- from the 1st defendant along with interest thereon. 24. Hence, it is just and necessary that the 1st respondent be able to show its bona fides to this Hon'ble Court by furnishing security for the suit claim of US$ 1,00,263 equivalent to Rs.45,61,966.50 (converted at the rate of Rs.45.50 to USD 1 as reflected in the website of Reserve bank of India on 10.08.2011) failing which an order of attachment before judgment to an extent of US$ 1,00,263 equivalent to Rs.45,61,966.50 lying to the credit of account No.43605012460, held by the 1st defendant with the 2nd defendant bank may be passed, pending disposal of main suit to secure the suit claim. 4 The reading of the affidavit does not make out a case for direction to furnish security. It is not the case of the applicant/plaintiff that any steps have been taken by the non-applicant/defendant, to dispose of the property, with an intention to defeat the rights of the applicant/plaintiff in a decree to be passed in favour of the applicant/plaintiff. 5 This Court has granted interim decree for admitted amount and the rest of the amount is disputed and is yet to be adjudicated. 6 In absence of pleading and proving the stipulations under Order XXXVIII Rule 5 of C.P.C., this Court cannot direct the respondent to furnish security, as any order passed in violation of Order XXXVIII Rule 5(1) and (2) shall be void. 7 No merit, dismissed. No cost. kal vaan