cpc

Order 38 Rule 5 of Code of Civil Procedure - Case Law


Court :
Calcutta High Court

Brief :

Citation :
Petitioner: Harleen Jairath Respondent: Prabha Surana & Anr. Citation: G. A. NO.2100 of 2019

Bench:

Soumen Sen, Ravi Krishan Kapur

Issue:

Whether granting ad interim order of injunction restraining the respondent from alienating or transferring the possession of his property is valid or not?

Facts:

  • The respondents has taken loan from the petitioner, issuing two different confirmation of accounts, in which the respondents acknowledged that Rs.5.14 & Rs.9.27 Crores were due to be paid.
  • The petitioner has provided the copy of Acknowledgement by the respondents before the court.
  • It is to be noted that the respondent has also borrowed loan from the wife of petitioner.
  • The respondent No.1 & No.2, both when called upon failed to pay the due amount, therefore a legal proceeding was filed against respondents for recovery of dues.
  • After filing, the respondents came before and promised to pay the dues within 6 months to temporarily stop the plaintiffs from the legal proceeding.
  • They offered a security by transferring the entire shares of Middleton Hotels Pvt Ltd in the name petitioner and was owned by respondents.
  • The company holding the shares denied to record the transfer of shares in the name of the petitioner and petitioner’s wife filed a suit before NCLT.
  • The petitioner recently came to know that the respondent has transferred two apartments in name of her daughter out of love and affection as a gift and the petitioner claims for cancellation of this transfer as it is of the intention to delay the payments.
  • The High Court stated that the respondent shall file their affidavit within two weeks.

Appellant’s Contentions:

The appellant contends that the act of respondent transferring the apartment in the name of their daughter as a gift is clearly intended to delay and defeat the payment dues, therefore along with the claim of money due, the petitioner has also asked the court to cancel the deed of gift.

Respondent’s Contentions:

The respondent contends that Order 38 Rule 5 of C.P.C. could only be invoked only when the averments of the plaintiff are clear and valid. Respondent states that the petitioner has failed to highlight the prima facie of the case for obtaining ad interim order.

Judgment:

The plaintiff was able to show sufficient cause to at ad interim stage to get an order of injunction against the respondent.

"The appeal and the applications are allowed. The order of the learned Single Judge is set aside.

The learned Single Judge shall decide the prayer for attachment before the judgment after the affidavits are exchanged.

We, however, make it clear that the learned Single Judge shall decide the matter uninfluenced by the observations made in this order.

There shall, however, be no order as to costs." said the Calcutta High Court.

 

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Karthi
on 15 September 2020
Published in Civil Law
Views : 205


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