1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 2850 OF 2008 IN SUIT NO. 1584 OF 2008 Jatin Kishore Gadoya .. Plaintiff Vs. M/s. Astron Plastic Industries Pvt. Ltd. .. Defendant Mr. P. N. Ganwani i/b U. L. Shah for the Plaintiff. Mr. P. K. Dhakephalkar with Mr. V. S. Kapse i/b S. V. Sadavarte for the Defendant. CORAM : MRS. R. S. DALVI, J. DATE : 31st March, 2010. P.C. 1. The plaintiff has filed this suit for recovery of money due and payable towards price of goods delivered to the defendant with interest thereon as agreed between the parties. The plaintiff has not filed summary suit. The plaintiff requires an amount of Rs.67.1 lacs to be deposited in the Court or security to that extent be furnished towards the claim of the plaintiff. In the alternative the plaintiff has applied for attachment of the properties and for an order of injunction restraining the defendant from disposing of, alienating, creating third part rights in the properties of the defendant. The plaintiff has shown in the Schedule of Notice of Motion 4 immovable properties and 4 bank accounts. The plaintiff has shown certain further bank accounts in the affidavit. 2 2. This Notice of Motion is essentially filed under the provisions analogous to the provisions of Order 37, Order 38 and Order 39 of the Code of Civil Procedure. The suit is a money claim. The defendant is stated to have the number of other creditors. The plaintiff has shown prima facie cause of action against the defendant which is under the contracts of sale of goods. The defendant’s defence is of non delivery of goods. The plaintiff has shown the goods have been delivered by the excise payments made by the defendant and reflected in the excise working statement. The plaintiff shall have to prove the truth of the contents of those documents. It would constitute circumstantial evidence of the delivery of the goods. The plaintiff would have to prove the actual delivery of goods by his own documents. Pending such proof the amounts claimed cannot be ordered to be deposited by the defendant. 3. True it is that the defendant Company has other liabilities. From the 4 properties shown by the plaintiff, the defendant admitted only one property as that of the defendant Company. The other properties are stated not to be defendant’s properties. The plaintiff has not shown the title in the defendant Company with regard to those properties. 4. Property Item No.1 in the Schedule of Notice of Motion is shown to have be sold in auction by Bank of Maharashtra under the Securitisation Act towards recovery of the amount not paid to be bank upon taking constructive possession of that property. Sale has been effected in 2009. 3 The plaintiff has not shown the amount recovered under the bank auction sale by the bank or the surplus, if any, therefrom which could be secured for the plaintiff as also the other unsecured creditors of defendant Company. 5. Since the plaintiff has filed a money suit simplicitor, an injunction against disposal of the assets of defendant not shown to be existing cannot be granted. 6. The plaintiff’s Advocate states that the defendant Company is setting up a plant in Rajasthan. The plaintiff may take such further proceedings to secure the plant as the plaintiff may be advised. 7. There shall be no order in Notice of Motion. No order as to costs. (R. S. DALVI, J.)