1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1112 OF 2008 WITH CIVIL APPLICATION NO.1366 OF 2008 Mahadik Brothers Pethnaka ..Appellant V/s Honai Construction ..Respondent Mr.S.A.Rajeshirke, Advocate, for the appellant None for the respondent though served CORAM : R.M.SAVANT, J. DATE : 2ND FEBRUARY, 2009 P.C. . Admit, heard finally. 2. This appeal takes exception to the Order dated 5th August, 2008, passed by the learned Civil Judge, Senior Division, Islampur by which order the application Exh.6 under Order XXXVIII, Rule 5 for attachment before Judgment came to be partly allowed as much as the attachment was allowed to the extent of Rs.5,00,000/-. 2 3. The facts involved in the Appeal from Order can be briefly stated thus :- The appellant is the original plaintiff in the suit, being Special Civil Suit NO.18 of 2008 filed for recovery of an amount of Rs.16,74,999.45/-. It is the case of the plaintiff that he is carrying on business of selling petrol and diesel in the name and style of Mahadik Brothers, Pethnaka. The defendant is in the business of construction and is executing huge contracts of construction of Canals, Tunnels and other construction work in the name and style of Honai Construction. In the course of his business the defendant needs huge quantity of diesel. On account of their personal relations the plaintiff used to supply the diesel to the defendant on credit. The defendant used to make payment by cheques, demand drafts etc. and that there was continuous transaction between the plaintiff and the defendant in the matter of supply of diesel. That on 15th June, 2006 the total outstanding amount due from the defendant was Rs.56,74,999.45/-. Towards the payment of the said amount, the defendant issued a cheque. However, immediately thereafter, the defendant asked the 3 plaintiff not to deposit the cheque and assured the plaintiff that the defendant will make payment of the said amount. The defendant by two Demand Drafts bearing No.530031 dated 2nd August, 2006, for an amount of Rs.20,00,000/- and another Demand Draft bearing No.530049 dated 29th August, 2006, for an amount of Rs.20,00,000/- totally paid the plaintiff an amount of Rs.40,00,000/-. The plaintiff thereafter, demanded the remaining amount from the defendant. The defendant by his letter dated 12nd October, 2007, confirmed and admitted the amount due from the defendant to the plaintiff after going through the account. 4. The plaintiff in view of the fact that there was no response from the defendant as regards payment of the remainder of the amount filed Special Civil Suit No.18 of 2008 for recovery of an amount 16,74,999.45/-. Considering the business practices of the defendant, the plaintiff filed an application for attachment before Judgment in the said suit on 31st May, 2008 and applied for interim attachment. The Trial Court granted the said interim attachment. Thereafter, the defendant filed a reply on 2nd July,2008. The Trial 4 Court thereafter by the impugned order partly allowed the said application Exh.6 for attachment before Judgment only in respect of an amount of Rs.5,00,000/- and for the balance amount directed the defendant to furnish an undertaking. 5. Perusal of the impugned order discloses that the Trial Court has recorded a finding taking into consideration material produced by the plaintiff i.e.the appellant herein, that the plaintiff's apprehension that the defendant would stall the implementation of the decree if passed appears to be bonafide and therefore, the Trial Court was of the view that attachment to a certain extent was required to be granted to the plaintiff. The Trial Court therefore, by the impugned order has granted attachment to the extent of Rs.5,00,000/- out of the amount due to the defendant from the Deputy Executive Engineer Warna Canal Project, Department No.I, Islampur. 6. Having heard the learned counsel for the appellant/plaintiff in my view, the Trial Court after recording a finding that the defendant would not honour the decree has misdirected itself by only allowing 5 application Exh.6 partly and directing the defendant to submit an undertaking as regards the rest of the amount. The provisions of the Order XXXV, Rule 5 of the Code of Civil Procedure, 1908, spell out that in case attachment is not to be granted, the rest of the amount would have to be secured by providing adequate security to the satisfaction of the Trial Court. In my view, therefore, the direction as contained in Clause (II) of the impugned order directing the defendant to submit an undertaking for the balance of the amount would have to be set aside and is accordingly set aside, and the defendant is directed to provide security for the balance of the amount. The said security to be provided by the defendant within a period of four weeks from date to the satisfaction of the Trial Court. 7. The above Appeal from Order is accordingly allowed to the aforesaid extent. (R.M.SAVANT, J.) 6