IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No. 4988 of 2011 in C.S.No.675 of 2011 ORDER This application has been moved by the applicant/plaintiff, praying for a direction to the respondent/defendant, to furnish security for the suit amount and failing which attachment before Judgment, of the property situated at lane No.7, Near Cottage Hospital, Chicalim, Vasco-da-gama, Goa-403 711, as detailed in the schedule, pending disposal of the suit. 2. In support of the application, the affidavit filed by the applicant/plaintiff reads as under:- "I,Mr.Muralidharan Valappil, son of Mr.M.Balakrishnan Menon, Hindu, aged about 49 years, residing at Subrabath Apartments, 114/1, Rengarajapuram Main Road, Kodambakkam, Chennai-600 024 do hereby, solemnly affirm and sincerely state as follows: 1. I am the petitioner herein and the plaintiff in the above suit. I am well acquainted with the facts and circumstances of the case. 2. The suit has been filed for the recovery of a sum of Rs.30,00,000/- (Rupees Thirty Lakhs), and the cause of action has arisen on the basis of a cheque for Rs.30,00,000/- given by the defendant to me which has been dishonoured. That cheque in original is filed as document No.2 along with this plaint. 3. I am given to understand that the defendant has borrowed money from various other persons also and he has to give money to some banks also. He is a Government and private contractor and he undertakes various works like laying underground cables and clearing deep sea materials. 4. To my knowledge he is the owner of the house where he is residing with his family and that is the only immovable property which he owns. The name of his house is 'Kulirma' and it is situated in Lane No.7, Near Cottage Hospital, Chicalim, Vasco-da-gama, Goa-403 711. Unless that house and ground are attached before Judgment, the defendant will alienate that house and ground also and move out of Goa for cheating the creditors like me. I most respectfully submit that I have got fair chances of success in the suit because it is a suit on a dishonoured cheque and there is no reply for the notice sent by my Advocate to the defendant demanding the sum of Rs.30,00,000/-. Hence it is prayed that this Hon'ble Court may be pleased to pass an order of Furnish Security for the suit claim failing which attachment before Judgment of the house and ground with name 'Kulirma' and situated in the lane No.7, Near Cottage Hospital, Chicalim, Vasco-da-gama, Goa-403 711 pending disposal of the suit and a copy of the order may be transmitted through District court, Vasco-da-gama, Goa-403 711 and render justice." 3. The learned counsel for the applicant contends that the averments made in the affidavit make out a case, for an order directing the respondent to furnish security, as it has been averred in the affidavit, that the respondent is having only immovable property that is the house be attached, and that he will alienate the property, to cheat creditors like the applicant. 4. Order 38, Rule 5 of the Code of Civil Procedure, 1908, reads as under: 5. Where defendant may be called upon to furnish security for production of property (1) Where, at any stage of a suit, the Court is 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, (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, 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, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void. 5. A perusal of the above provision would show that the Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct to 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 or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. 6. Further still, Hon'ble Supreme Court of India in the case of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, 2008 (2) SCC 302, has observed as under: "The power under Order 38, Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38, Rule 5 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 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements, under threat of attachment." 7. In light of the express provisions of Order 38, Rule 5 CPC and the observations of the Hon'ble Supreme Court in the matter of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, supra, the position of law that emerges is as under: (i)The Court, before calling upon the defendant to furnish security for production of property, has to be satisfied that the defendant, with an 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 or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. This satisfaction of the Court has to be objective andnot subjective in as much as there has to be a positive and definite material before the Court to enable the Court to come to a prima facie conclusion that the defendant is about to dispose of the whole of part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him. Merely because a suit is filed or about to be filed against him, the defendant is not debarred from dealing with his property. Accordingly, mere fact that some material is placed before the Court showing that defendant has disposed of some of his properties would by itself not be sufficient for the Court to exercise the powers conferred upon it under Order 38, Rule 5 CPC without their being further material on record to show that the property is being disposed off by the defendant with an intention to frustrate the probable decree that may be passed against him The intention of the defendant to remove or dispose of the whole or part of his property, with a view of obstructing or delaying the execution of any decree that may be passed against him is sine qua non before the power under Order 38, Rule 5 can be exercised by the Court. However, it may also be observed here that the question of ascertaining the intention of the defendant is a vexed question having no easy solution and precise mathematical tests. The true intention of the defendant in disposing of the whole or part of his property would thus, have to be determined by the Court having regard to the particular facts and circumstances of each case. (ii) The Plaintiff- Applicant is required to satisfy the Court that all the ingredients specified in Order 38, Rule 5(1) CPC exist before the application filed by the Plaintiff-Applicant can be allowed. The same is evident from the reading of Clause 4 of the Order 38, Rule5. Merely because the defendant will not be prejudiced cannot be a ground in itself for the Plaintiff- Applicant to argue that the power under Order 38, Rule 5 CPC should be exercised by the Court. Accordingly, the Plaintiff-Applicant is required to place sufficient material before the Court so as to enable the Court to form a prima facie opinion that the defendant, with an 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. In order to do so, the Plaintiff-Applicant may be required to swear an affidavit in support of his application detailing the name, address and sufficiently describing the identity of the person or persons from whom he has received the information about the attempts of the defendant to dispose of the whole or any part of his property with an intent to obstruct or delay the execution of any decree that may be passed against him. (iii) As the matter with regard to the power of the Court to call upon the defendant to furnish security for production of property, even before the judgment, has been detailed and expressly provided in Order 38, Rule 5 CPC, the Court cannot resort to its inherent powers under Section 151 CPC and call upon the defendant to furnish security for production of property in case the ingredients of Order 38, Rule 5(1) CPC are not fulfilled. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the matter of Nahar Industrial Enterprises Ltd v. Hong Kong & Shanghal Banking Corporation, 2009 (8) SCC 646, wherein it has been held that where a matter has expressly been provided for in the CPC, inherent power cannot be resorted to. 8. When the present application filed by the Plaintiff-Applicant is viewed in light of the position of law detailed above, I find no merit in the same. The Plaintiff-Applicant in the present application has failed to disclose any sufficient material to prima facie satisfy this Court about the obstructive conduct of the defendant. 9. Other than vague allegations, no material has been placed before the Court to show that the defendant is about to dispose of the whole or part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him. 10. The affidavit filed in support of the application also does not detail the name, address and the identity of the person or persons from whom the Plaintiff-Applicant has received the information about the attempts of the defendant to dispose of the whole or any part of his property with an intent to obstruct or delay the execution of the decree that is likely to be passed against him. 11. Accordingly, the present application, being without any merits, is dismissed with no order as to costs. vks ar