: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 103 OF 2010 IN SUMMARY SUIT NO.103 OF 2010 ALONGWITH NOTICE OF MOTION NO. 1227 OF 2010 M/s. Globe Polyers & Chemicals .. Plaintiffs v/s. Kiran Ajit Prabhu & Anr. .. Defendants ......... Ms. Sunita Potddar i/by Kalpesh Nansi for the plaintiffs Mr. Ashish Kamat with Ms. Tanmayi Gadre i/by RMG Law Associates (in support of NMS 1175/10) for applicant / purchaser. Mr. S.S. Purohit i/by Ashok Purohit & Co. for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 22nd JUNE, 2010. P.C. : 1. The plaintiffs have instituted the suit against the defendants for recovery of monies as set out in the plaint. The plaintiffs apprehended that defendants would create third party rights and defeat the claim of the plaintiffs and that is how the plaintiffs took out Notice of Motion No.103 of 2001 and moved the Court for ad- : 2 : interim orders in terms of the said motion on 22nd January, 2010. Affidavit of service was filed and the Court was informed that the service is complete. The Court came to the conclusion that there is no denial to the averments made and that is why the Court proceeded to pass an order of injunction i.e. ad-interim order in terms of prayer clause (a) thereby restraining the defendants from creating third party rights and / or parting with possession in regard to the suit flat described in the notice of motion. Thereafter, the proceedings have been served upon the defendants by public notice. Defendants have taken out Notice of Motion No.1227 of 2010 and have prayed that order dated 22nd January, 2010 stated as above be vacated. These two motions were taken up for hearing jointly. 2. I have perused the affidavit of service filed by Mr. Jitesh Rukhana Parmar partner of the plaintiffs and Mr. Ashok Dhanavade, Court Clerk of the advocate on record who was then attending to the matter on behalf of the plaintiffs. Perusal of the said affidavit would clearly go to show that the packet containing the papers of the suit and motion were dropped at the address of defendant nos. 1 and 2 at : 3 : flat No.C-605, Lotus Ansal Vihar, Near Shimpoli Telephone Exchange, Borivali (W), Mumbai 400 092. On the strength of this affidavit of service, the Court came to the conclusion that the defendants are properly served and ad-interim order came to be passed. Learned Counsel Mr. Purohit appearing on behalf of defendant nos.1 and 2 submitted that affidavit of service dated 22nd January, 2010 if perused carefully, would go to show that the service was not complete and, therefore, the application for ad-interim reliefs in terms of Notice of Motion No.103 of 2010 was made without serving copy of the proceedings upon defendant nos. 1 and 2. He pointed out to me the observations of the Court that there is no denial of the averments. He submitted that because the defendants could not get copy of the papers, they could not deny the averments. He, therefore, submitted that order dated 22nd January, 2010 has been passed without there being any service upon the defendants. He also submitted that if it was the case of the plaintiffs that defendants are trying to dispose of the property or create impediment in smooth execution of the decree, if it is so passed in favour of the plaintiffs, it was necessary that the plaintiffs to apply for appropriate reliefs in accordance with the : 4 : provisions of Order 38 Rule 5 of the Civil Procedure Code i.e. an attachment before Judgment. According to him, the present notice of motion is not maintainable as it is not in the appropriate format and, therefore, on that ground also the motion is required to be dismissed. 3. Learned Counsel Ms. Potddar appearing on behalf of the plaintiffs submitted that if the affidavit in support of the Notice of Motion No.1227 of 2010 is perused, it will go to show that defendants have specifically admitted that they have disposed of the flat by Agreement dated 3rd July, 2009 and they have no properties left with them and they had some transactions with the bank. According to learned Counsel Ms. Potddar, paragraph nos. 3 and 4 of the affidavit in support of the Notice of Motion No.1227 of 2010 clearly support the stand of the plaintiffs that defendants are conducting themselves in such a manner that the plaintiffs would not be able to enjoy the fruits of the decree, which may be passed in their favour and, therefore, order of attachment should be maintained. According to Ms. Potddar, the notice of motion taken out for ad- interim reliefs in terms of the prayer clause (a), Notice of Motion No. : 5 : 103 of 2010 was maintainable. She submitted that affidavit in support of Motion No.1227 of 2010 filed by defendant nos. 1 and 2 clearly indicates that the defendants are in financial difficulties and, therefore, interest of the plaintiffs are required to be protected by confirming the order passed in Notice of Motion No.103 of 2010. 4. After having considered the rival contentions, I am inclined to dismiss the Notice of Motion No.103 of 2010. If that is done, Notice of Motion No.1227 of 2010 can be disposed of without any orders. 5. In the first place, if the plaintiffs wanted to secure certain orders to prohibit defendants from disposing of the properties, they ought to have taken out the proceedings under Order 38 Rule 5 of Civil Procedure Code. The necessary prayers in the said application could have been attachment of the movable and immovable properties owned by defendant nos. 1 and 2. The relief of injunction could not have been sought and, therefore, the plaintiffs could not have prayed for an injunction as has been done in terms of prayer clause (a). Even if it is accepted for a moment that one may not : 6 : adhere to the technicalities and treat motion being Motion No.103 of 2010 as a prayer for attachment of the property owned by defendant nos. 1 and 2, the necessary facts will have to be investigated as to whether defendants had the notice of the said application. It is required to be mentioned that the plaintiffs were not intending to move the Court without notice to the defendants. If the plaintiffs intended to move the Court without notice to the defendants and would have made a specific request accordingly, then things would have been different. When plaintiffs took steps to serve the motion upon the defendants they could secure order only after serving defendants. It was argued by learned Counsel for the plaintiffs that dropping of such a packet at flat C-605, Lotus Ansal Vihar, Near Shimpoli Telephone Exchange, Borivali (W), Mumbai should be treated as a good service, cannot be accepted. Said argument runs counter to the paragraph 3 of the affidavit of service wherein the partner of the plaintiffs has admitted that the service is incomplete. 6. The order dated 22nd January, 2010 proceeds on the footing that the service is complete. It also proceeds on the count that there : 7 : is no denial to the averments. Naturally, if these two points are mentioned in the order, the only option which the Judge had was to pass the order of ad-interim relief. It is clear that Court was made to believe that the service is complete and the Court passed an order restraining defendants from creating third party rights and / or part with possession in respect of the suit property. In my view, the plaintiffs cannot be granted relief in this motion on this very ground. 7. It is true that the averments in the affidavit in support of the Notice of Motion No.1227 of 2010 do state that the defendants have disposed of the properties, defendants had some transactions with the bank and that the defendants are in financial difficulties. Those averments cannot be used against the plaintiffs when proper proceedings as per Order 38 Rule 5 of Criminal Procedure Code are not filed. The plaintiffs could not have taken motion for an injunction as per prayer (a). This motion is therefore not maintainable. 8. For the reasons mentioned aforesaid, notice of Motion No.103 of 2010 is dismissed. In the facts and circumstances of the case, there : 8 : shall be no order as to costs. On account of dismissal of the Notice of Motion No.103 of 2010, Motion No.1227 of 2010 is disposed of with no order with no order as to costs. Learned Counsel Mr. Purohit waives service of Writ of Summons on behalf of defendants. Vakalatnama filed by advocate for defendants in Notice of Motion No. 1227 of 2010 be treated as Vakalatnama in the Suit. 9. Learned Counsel Ms. Potddar appearing on behalf of the plaintiffs submitted that as of today the share certificates are not transferred in the name of the purchaser of flat and, therefore, to protect the interest of the plaintiffs ad-interim order should be continued for some time. This request was opposed by learned Counsel Mr. Purohit for the defendants. I have considered these submissions. The plaintiffs are not entitled to have the order continued for some period. Request is rejected. It will be open for the plaintiffs to apply for appropriate reliefs by taking out a fresh notice of motion with appropriate prayers. (R.Y.GANOO, J.)