Telangana High Court
Vuthuru Harish Kumar vs Vuthuru Mallikarjun And Another on 2 November, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
C.R.P.No.1451 of 2022
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner-defendant assailing the order dated 23.03.2022 in IA No.114 of 2022 in OS No.18 of 2022 on the file of the learned Principal Junior Civil Judge, Mancherial.
2. The application in IA No.114 of 2022 was filed under Order-38 Rule-5 of the Civil Procedure Code, 1908 (for short 'CPC') for attachment before judgment of the suit schedule property as a security towards the suit claim of Rs.45,14,340/-. This application is filed along with original suit in OS No.18 of 2022 for recovery of the said amount. In the original suit, the sole defendant has filed a written statement denying the liability and during enquiry in IA No.114 of 2022, the learned Principal Junior Civil Judge has ordered conditional attachment directing the defendant therein to furnish security equivalent to the suit amount within three days of service of notice, failing which the Page 2 of 8 AVR,J CRP No.1451 of 2022 attachment warrants will be issued for attachment of chit amount to be paid by the respondent.
3. Heard the learned counsel on both sides. The submissions made on either side have received due consideration of this Court.
4. For the sake of convenience, the parties are hereinafter are referred to as the plaintiff and defendant as arrayed in the original suit in OS No.18 of 2022.
5. The plaintiff has filed the original suit against the defendant for recovery of Rs.45,14,340/- alleging that the plaintiff and defendant are real brothers and the defendant in order to establish turmeric business requested the plaintiff for hand loans. Accordingly, the plaintiff has advanced loan over a period of time from 30.01.2018 to 27.04.2018 and again from 21.06.2018 to 28.12.2018. Thus, in all the defendant has received an amount of Rs.36,51,446/- till 24.04.2019. On the demand made by the plaintiff, only an amount of Rs.10,62,375/- Page 3 of 8
AVR,J CRP No.1451 of 2022 was repaid and failed to pay the balance amount. Hence, the suit is filed for recovery of Rs.45,14,340/-.
6. Along with the original suit, the IA No.114 of 2022 is filed under Order-38, Rule-5 of CPC. As per the orders dated 25.03.2022, upon hearing the learned counsel on both sides, the orders were passed. However, the contention of the learned counsel for the revision petitioner /defendant is that the trial Court failed to see that the plaintiff failed to file any document in support of his claim for the principal amount or interest. Though the parties are real brothers, there are several transactions in respect of joint family properties. The powers under Order-38 Rule 5 of CPC are drastic and extra-ordinary in nature. No prima facie case is made out by the plaintiff.
7. The learned counsel for the revision petitioner/ defendant has relied on the orders of this Court in batch of CRP Nos.1066, 642, 683 and 1058 of 2021 dated 28.03.2022 wherein this Court while relying on the principles laid by the Hon'ble Apex Court in M/s. Raman Page 4 of 8 AVR,J CRP No.1451 of 2022 Tech & Press Engg. Co., Vs. Solanki Traders1 and in Mandala Suryanarayana, @ Babji Vs. Sri Barla Babu Rao, s/o. Appa Rao2 wherein a Division Bench of this Court while relying on the judgment of the Apex Court in Raman Tech's case (1st supra) set aside the orders passed by the trial Court and remanded the matter for fresh consideration in accordance with the principles laid by the Hon'ble Apex Court in the above decision.
8. Per contra, the learned counsel for the respondent/plaintiff relied on the principle laid by the Supreme Court in Rajendran and Others Vs. Shankar Sundaram and Others3 wherein it was held that in an application for attachment before judgment what is required is only the Court has to form prima facie opinion and the plaintiff is entitled to secure his interest. In such circumstances, the defendant/appellant is not seriously prejudiced when a direction for depositing security is ordered, accordingly held that the learned Judge is not 1 (2008) 2 SCC 302 2 2010 (2) ALT 839 3 AIR 2008 SC 1170 Page 5 of 8 AVR,J CRP No.1451 of 2022 correct in rejecting the application as if the plaintiff has no prima facie case. In the reported decision, the application for attachment before judgment was filed by the plaintiff so as to protect his interest in the event the suit is decreed. A Division Bench of the High Court has merely directed the appellants to furnish security within the time specified and it was directed that only on their failure to do so, an order of attachment of the second item of the schedule to the petition shall be issued, accordingly, the Apex Court has held that no prejudice thereby caused to the defendants in view of such orders. In Yenamala Chandra Reddy Vs. Nuvvula Chandramouli Naidu and others4, a Division Bench of this Court has held that conditional attachment order may be passed without issuing any notice to other side.
9. Reverting back to the facts of the case on hand, the plaintiff has filed the original suit for recovery of suit claim. Along with the original suit, the application under Order-38 Rule-5 of CPC is filed for attachment of the bid 4 1991 (2) ALT 343 Page 6 of 8 AVR,J CRP No.1451 of 2022 amount of the defendant which was lying with the Branch Manager, Margadharsi Chit Funds Private Limited Mancherial. After hearing both sides, the trial Court has passed the conditional attachment. Though it is not specifically mentioned as conditional attachment, the operative portion of the order is crystal clear stating that the defendant is directed to furnish security to the suit amount within the three days of service of notice, failing attachment warrant will be issued attaching the chit amount to be paid by the second respondent, the respondent Branch Manager, Margadharsi Chit funds Private Limited, Mancherial.
10. Therefore, in my considered opinion, the trial Court having formed prima facie opinion has only ordered a conditional attachment. At this stage, the trial Court is not expected to look into the details of the correctness or otherwise of the contentions raised by both the parties, the trial Court has simply directed the revision petitioner to furnish security within the time specified therein and it was only directed that that on the failure to do so, order of Page 7 of 8 AVR,J CRP No.1451 of 2022 attachment of the amount lying with the second respondent-Margadarsi Chit Fund Private Limited in respect of chit amount will be issued. As such viewed from any angle, no serious prejudice would be caused to the defendant, the trial Court having formed prima facie opinion has issued such order only to furnish security.
11. In the given facts and circumstances of the case on hand as discussed above, the principles laid in the decision relied by the learned counsel for the revision petitioner/defendant are not applicable for the simple reason that in those cases, a slip-shot orders were passed without issuing any notice to other side. Whereas, in the case on hand, notice was issued to the respondent, counter received, contentions raised on behalf of the defendant were answered and only a conditional attachment was ordered directing the defendant to furnish security for the suit claim within three days, and only in case of his failure to furnish security for the suit claim, directed for issuing warrant of attachment before judgment in respect of the bid amount lying with the second respondent Page 8 of 8 AVR,J CRP No.1451 of 2022 /Margadarshi Chit Fund Private Limited, Mancherial branch. Accordingly, I do not find any merit in the revision petition and there is no jurisdictional error committed by the trial Court warranting interference by this Court.
12. In the result, the Civil Revision Petition is dismissed as devoid of merits. In the circumstances of the case, there shall be no order as to costs.
Miscellaneous Applications, if any pending in this civil revision petition, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 02.11.2022 Isn