IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NOS.336 AND 337 OF 2003 Fathima Saw Mill, rep. by Proprietor S.Mohammed Umare Farook 290,Anaikarai Street, Tenkasi .. Appellant in both the appeals Vs. 1.B.G. & Sons, rep. by its Partner Chanjai Agarwal, 306, Sydems Road, Nehru Timber Mart, Choolai, Chennai-600 112. 2.Chanjai Agarwal Partner, B.G. & Sons, 306, Sydems Road, Nehru Timber Mart, Choolai, Chennai-600 112. 3.Sankar Agarwal Partner, B.G. & Sons, 306,Sydems Road, Nehru Timber Mart, Choolai, Chennai-600 112. 4.Pawankumar Agarwal, Partner, B.G. & Sons, 306, Sydems Road, Nehru Timber Mart, Choolai, Chennai-600 112. https://hcservices.ecourts.gov.in/hcservices/ 5.Vijaykumar Agarwal, Partner, B.G. & Sons, 67/25, Strand Road, Calcutta-700 006. 6.Ajaykumar Agarwal, Partner, B.G. & Sons, 67/25, Strand Road, Calcutta-700 006. 7.Arun Kumar Agarwal, Partner, B.G. & Sons, 67/25, Strand Road, Calcutta-700 006 .. Respondents in both the appeals These O.S.As. have been preferred under Order 36 Rule 1 of O.S. Rules read with Clause 15 of Letters Patent against the order dated 17.09.2003 made in O.A. No.345 of 2003 and Appln. No.1762 of 2003 in C.S.No.287 of 2003 respectively. For Appellant : Mrs.Chitra Sampath For Respondents: Mrs.S.Hemalatha for RR1 to 4 and 7 COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, which have arisen from the common order of the learned Single Judge of this Court made in three applications, namely O.A.No.345 of 2003 and Application Nos.1762 and 2619 of 2003. 2.The affidavit filed in support of all the applications filed by the parties and the common order under challenge are perused. The Court heard the learned counsel on either side. 3.The plaintiff filed the suit for recovery of sum of Rs.19,70,603.00 in C.S.No.287 of 2003, alleging that the plaintiff sold imported wood to the first defendant, a partnership firm; that the defendants 2 to 7 were the partners; that in that transaction, the defendants made payment to the tune of Rs.1,50,000/-, while the balance was Rs.14,34,843/- and thus, along with accrued interest, at the time of filing of the suit, the balance was Rs.19,70,603/-; that at the time of initiation of the said suit, three applications were filed, one in O.A.No.345 of 2003, seeking interim injunction, https://hcservices.ecourts.gov.in/hcservices/ restraining the respondents from alienating or encumbering the petition schedule mentioned property, while the other application in A.No.1762 of 2003 was filed seeking direction to the respondents to furnish security to the suit claim, failing which to order attachment of immovable property found in the schedule. On appearance, the respondents, after filing counter in those two applications, has filed A.No.2619 of 2003 to vacate the interim order of injunction originally granted by the court on 11.04.2003. 4.The main contention put forth by the plaintiff before the learned Single Judge and equally here also is that the schedule mentioned properties were likely to be alienated and if the defendants/respondents are permitted to do so, even if the decree is passed in favour of the plaintiff, they could not get the fruits of it and they would be defeated and hence there arose a necessity to ask not only interim injunction, restraining the respondents from alienating or encumbering the property, but also for a direction to the respondents to furnish security and in default, to pass an order of attachment. 5.Both the applications were resisted by stating that it is true, there was transaction between the parties, but the entire payment has been actually made and the balance was Rs.626/- only and that the claim that was made was false. 6.After hearing both sides, the learned Single Judge was of the opinion that even the written statement has not been filed and only after doing so, the defence to be put forth by the defendants could be assessed and at this juncture, there was no prima facie case noticed by the Court for granting the relief of either interim injunction or ordering attachment and that the allegations noticed are vague and that would not be sufficient to invoke Order 38 Rule 5 of C.P.C. for granting an order of attachment and with that observations, both the applications were dismissed. Aggrieved over the same, the plaintiff has brought forth these appeals before this Court. 7.Advancing arguments on behalf of the appellant, the learned counsel would submit that the plaintiff has filed a suit for recovery of sum of Rs.19,70,603.00, alleging that it was the balance due from the defendants by way of supply of wood to the first defendant, for which the defendants 2 to 7 were the partners; that while admitting the transactions, the defendants have come forward to state that the entire amount has been paid and the balance was Rs.626/- only; that the learned Single Judge was not prepared to accept the contentions put forth and has dismissed the applications; that after passing an order of ad interim injunction on 11.4.2003, the respondents/defendants have sold 14 cents, which compelled the plaintiff to file a contempt application. When that application was pending, an undertaking was given by the defendants, who are the respondents herein, not to alienate the rest of the properties. The said undertaking was recorded by the Court and further, that application was disposed of. Under these https://hcservices.ecourts.gov.in/hcservices/ circumstances, when it was brought to the notice of the Court that pending interim injunction order, which was granted on 11.4.2003, the defendants disobeyed the order of the court and have sold a part of the property in the schedule, which was annexed to the attachment application, which by itself would be sufficient to pass an order of attachment. But, the learned Single Judge has not looked into the said aspects of the matter either factually or legally, but has denied the relief and under these circumstances, it is a fit case where the order of attachment of the rest of the property would be ordered. 8.The Court heard the learned counsel for the respondents on the above contentions. 9.The Court has paid its anxious consideration on the submissions made and looked into the materials available. It is a case where, the appellant herein, on the strength of the averments made, brought two applications, one for interim injunction and the other for attachment. Interim injunction, though was granted on 11.4.2003 in favour of the plaintiff/appellant, an application was filed to vacate the same. Finally, both the applications filed by the plaintiff were dismissed as there is no proof to accept the claim of the plaintiff and also that the defence plea could not be made known or appreciated even before filing the written statement. Therefore, insofar as the application for attachment, the Court has pointed out that vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the rule. In the opinion of the Court, the conduct of the defendants should have impelled the court to grant an order of attachment. It is an admitted position that an interim injunction was granted on 11.4.2003. When the injunction was in force, the defendants, who were liable to answer the claim, have sold a part of the property and they have not even filed written statement. Under these circumstances, when both the applications were taken up for consideration, the court should have taken into consideration the subsequent conduct of the defendants and that too pending suit, and should have passed an order. The conduct of the defendants, in the opinion of the Court, would be pointing that the apprehension of the plaintiff that the defendants were about to dispose of the property was true. 10.Under these circumstances, the court feels that it is a fit case where attachment has got to be ordered. Once attachment is ordered in respect of the property, which remains in the hands of the defendants, the Court is of the considered opinion that interim injunction restraining them from alienating the property need not be considered. Apart from that, the contempt application filed by the plaintiff against the defendants/respondents was disposed of on the undertaking of the respondents to the effect that they will not alienate the rest of the property. Hence it would be quite clear that the remainder of property as found in the schedule, except 14 cents that was sold by them pending proceedings, are actually with https://hcservices.ecourts.gov.in/hcservices/ the defendants 4 and 5. The Court is of the considered opinion that the circumstances would warrant for ordering attachment of the property. Accordingly, O.S.A.No.336 of 2003 is dismissed. The order of the learned Single Judge in A.No.1762 of 2003 is set aside and O.S.A.No.337 of 2003 is ordered, granting order of attachment in respect of the entire property mentioned in the judges summons to Application No.1762 of 2003, excluding the extent of 3881 Sq. ft. sold by the defendants /respondents 3 and 5 to one Venkateswaralu under the sale deed dated 4.5.2003 (Doc. No.3660 of 2003 on the file of the Sub Registrar Office, Sembium). No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To The Sub Assistant Registrar Original Side, High Court, Madras. 2 ccs to Mrs. Chitra Sampath, Advocate, SR. 36542 and 36543 O.S.A.NOS.336 & 337/2003 SCD (CO) kk 23/7 https://hcservices.ecourts.gov.in/hcservices/