Madhya Pradesh High Court
My Car (Bhopal) Pvt. Ltd. vs M/S Bhopal Glues And Chemical Pvt. Ltd. on 3 January, 2018
MP 1377/17 & MP 1507/17
1
M.P. No. 1377/2017
[My Car (Bhopal) Pvt. Ltd. Vs. M/s Bhopal Glues and Chemical Pvt. Ltd.]
&
M.P. No. 1507/2017
[My Car (Bhopal) Pvt. Ltd. Vs. M/s Bhopal Glues and Chemical Pvt. Ltd.]
Jabalpur
03.01.2018
Shri Shobhitadiya, learned counsel for the petitioners in
both the M.P.s.
Shri Vishal Bhatnagar and Shri Yogesh Bhatnagar
learned counsel for the respondent/caveator. In both the M.P.s.
In both these petitions parties are the same, the
impugned orders have also been passed on an application
filed by the respondent/plaintiff u/s.94 r/w.s.151 of CPC on
27.09.2017 hence, both these petitions are being disposed of
by a common order. For the matter of convenience, the facts
of M.P. No. 1377/2017 are taken into consideration.
2. In brief the facts of the case are that the respondent/
plaintiff has filed a Civil Suit bearing RCS No. 284-A/2016
against the petitioner/defendant for possession, injunction and
recovery of usage charges, damages and occupation charges
by contending inter-alia that an agreement dated 27.06.2006
was initially executed between the plaintiff and defendant for a
period of three years in respect of the respondent's premises.
Subsequently, in the year 2012 another agreement was also
executed for a period of further three years but as the
defendant/ petitioner did not vacate the premises, even after
expiry of the agreement, hence the aforesaid suit was filed.
3. Written statement has already been filed by the
defendant/ petitioner refuting the allegations made in the
MP 1377/17 & MP 1507/17
2
plaint. In the aforesaid suit, the respondent/ plaintiff filed an
application under Section 94 read with Section 151 of C.P.C.
seeking directions against the petitioner/ defendant for
depositing usage/ hiring charges from 01.10.2015 to
15.10.2015 and thereafter w.e.f. 16.10.2015 at twice the
prevailing monthly charges along with damages also at twice
of the prevailing monthly charges. This application was filed on
the grounds interalia that the defendant is using the property of
the plaintiff without any authority of law, as an encroacher and
that too without paying any use and occupation charges. It is
further stated in this application that the plaintiff shall suffer
irreparable loss and injury if the relief/order as sought by the
plaintiff in the said application is not granted to it. It is further
stated that there is every likelihood that the defendant shall
avoid making payment of use and occupation charges in case
a decree is passed in its favour and by that time arrears would
accumulate to lakhs of rupees. Additionally, a direction was
also sought that the defendant be asked to declare its movable
and immovable properties which can be attached at the time of
execution for recovery of the amount.
4. The aforesaid application was opposed by the
petitioner/defendant on the ground that a dispute between the
plaintiff and the Municipal Corporation, Bhopal is already
pending before High Court vide WP No. 371/2002 regarding
title of the property, hence plaintiff is not entitled to claim any
relief. So far as the disclosure of properties is concerned, it
was stated that the application is misconceived.
5. The aforesaid application u/s.94 has been allowed by
the learned trial court vide its order dated 27.09.2017 which is
under challenge before this court.
6. Shri Shobhitaditya, the learned counsel for the
petitioner/defendant has submitted that an application under
MP 1377/17 & MP 1507/17
3
Section 94 of the C.P.C has to be dealt with in accordance with
Order 38, Rule 2 of C.P.C., which provides for security before
the judgment is passed and none of the ingredients of Rule 2
of Order 38 have been made out by the plaintiff in their
application filed under Section 94 of the CPC. Under these
circumstances, it is submitted by the learned counsel that the
learned Judge of the Trial Court has erred in holding that the
defendant is liable to make payment of half of the bank
guarantee, which comes to Rs.22,62,645/-.
7. Learned counsel for the petitioner has also relied upon
the judgments rendered in AIR 2004 SC 3992 (Vareed Jacob
V. Sosamma Geervarghese) as also by this Court and
reported as Champalal Balsa V. Pyaribai Mangilal and
others, in 1961 MPLJ 219 .
8. On the other hand, learned counsel for the respondent/
complainant has opposed the relief claimed by the petitioner/
defendant and has submitted that no illegality has been
committed by the learned Judge of the District Court in
passing the impugned order. It is further submitted that the
petitioner/ defendant has encroached upon the property of the
respondent/plaintiff without any authority despite the fact that
they had entered into the premises on the basis of an
agreement between them and now on the pretext of pendency
of W.P. No.371/2002, which is pending between the plaintiff
and the Municipal Corporation, Bhopal, the petitioner/
defendant is trying to take advantage of the same by not
paying the dues to the plaintiff which have now accumulated to
a huge amount running into lakhs of rupees and no illegality
has been committed by the learned Judge to secure the
aforesaid amount to a certain extent, if decree is passed in
their favour. A detailed reply is also filed by the
respondent/plaintiff. Reliance is also placed on judgments
MP 1377/17 & MP 1507/17
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passed by the Hon'ble Apex Court on 23.09.2010 in Civil
Appeal No. 8234/2010 (Jai Singh & Ors. Vs. MCD & Anr), as
also judgment dated 23.07.2010 passed in Civil Appeal No.
5896 / 2010 (Shalini Shyam Shetty and another Vs.
Rajendra Shankar Patil) to submit that under the scope of
Art.227 of the Constitution of India the High Court is not vested
with any unlimited prerogative to correct all kinds of hardship
or wrong decisions made within the limits of the jurisdiction of
the subordinate courts and also that the High Court cannot
exercise its powers as an appellate court or substitute its own
judgement in place of that of the subordinate court to correct
an error, which is not apparent on the face of record. It is
further submitted that even otherwise the civil court has ample
powers to pass an order under s.151 of CPC to secure the end
of justice. The counsel has further submitted that no prejudice
would be caused to the defendant as only the bank guarantee
of the amount has been directed to be furnished in the court
only.
9.Heard the learned counsel for the parties and perused the
record.
10. Before proceeding any further it would be germane to
refer to the impugned order itself. The relevant paras 11 to 14
of the same read as under:-
"11. Arguments were advanced by learned advocates of
both the parties favouring their respective stands. In the
original suit recovery of usage/ hiring charges has been
prayed for. The defendant in his reply has stated that he
came to know that dispute between Bhopal Municipal
Coporation and the plaintiff regarding the ownership of the
land is pending before the Hon'ble High Court of M.P. and
this fact has expressingly conceived by the plaintiff and had
deceived the defendant.
MP 1377/17 & MP 1507/17
5
12. It does appear that the defendant has stopped making
payments to the plaintiff on account of the reasons stated as
above. However the defendant have earlier been making
payments to the plaintiff.
13. The defendant are still using the disputed premises and
running their business as usual without making any payment.
It is thus ordered that the defendant shall submit a bank
guarantee of half the amount of Rs.45,25,291 which is Rs.22
lacs 62 thousand and 645/- (22,62,645 Rs.) within 15 days
before the court. The Bank guarantee shall be placed in the
record of the case.
14. With the above directions, the application u/s 94
C.P.C. is disposed of."
11. Admittedly, the impugned order has been passed by the
learned Judge of the trial Court under Section 94 of the CPC,
which reads as under:-
"94. Supplemental proceedings. -In order to prevent the
ends of justice from being defeated the Court may, if it is so
prescribed,-
(a) issue a warrant to arrest the defendant and bring him
before the Court to show cause why he should not give
security for his appearance, and if he fails to comply with any
order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any
property belonging to him and to place the same at the
disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience
commit the person guilty thereof to the civil person and order
that his property be attached and sold;
(d) appoint a receiver of any property and enforce the
performance of his duties by attaching and selling his
property;
(e) make such other interlocutory orders as may appear to
the Court to be just and convenient."
12. The main plank of the arguments as advanced by the
MP 1377/17 & MP 1507/17
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learned counsel for the petitioner is that an application filed
s.94 of CPC has also to comply with the provisions of Order 38
rule 2 of CPC which is relevant for the purposes of the case at
hand, the relevant rules of the same read as under:-
"Order 38, Rule 1 Where defendant may be called upon to
furnish security for appearance.-xxxxxxxxx
"2. Security- (1) Where the defendant fails to show such
cause the Court shall order him either to deposit in Court
money or other property sufficient to answer the claim
against him, or to furnish security for his appearance at
any time when called upon while the suit is pending and
until satisfaction of any decree that may be passed against
him in the suit, or make such order as it thinks fit in regard
to the sum which may have been paid by the defendant
under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall
bind himself, in default of such appearance, to pay any
sum of money which the defendant may be ordered to pay
in the suit.
(3) xxxxx
(4) xxxxx
(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
MP 1377/17 & MP 1507/17
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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."
13. Now the question that arises for the consideration of this
court is as to whether the order passed under Section 94 of
the CPC read with Section 151 of C.P.C. is required to be
passed in line with the provisions prescribed under Order 38 of
the CPC or not.
14. In this regard, reference may be had to the decision of
the Apex court in the case of Vareed Jacob (supra) in para 11
& 15 of the same, it is held as under:-
"11. The above discussion shows that the source of power of
the Court to grant interim relief is under Section 94. However,
exercise of that power can only be done if the circumstances
of the case fall under the rules. Therefore, when a matter
comes before the Court, the Court has to examine the facts of
each case and ascertain whether the ingredients of Section
94 read with the rules in an Order are satisfied and
accordingly grant an appropriate relief. It is only in cases
where circumstances do not fall under any of the rules
prescribed that the Court can invoke its inherent power under
Section 151, C.P.C. Accordingly, the Courts have to grant
relief of attachment before judgment, if the circumstances fall
under O.38, C.P.C. Similarly, Courts will grant temporary
injunction if the case satisfies Order 39. So depending on the
circumstances falling in the prescribed rules, the power of the
Court to grant specified reliefs would vary. Therefore, each set
of rules prescribed are distinct and different from the other
and therefore, one cannot equate rules of temporary
injunction with rules of attachment before judgment although
all are broadly termed as interlocutory orders.
....
MP 1377/17 & MP 1507/17 8
15. At the outset, we may point out that the case of Ram Chand v. Pitam Mal (Supra) was under the provisions of the earlier Civil Procedure Code of 1859. In this case we are concerned with the Civil Procedure Code of 1908, which has made substantial changes with regard to the attachment before judgment. Under Order 38, Rule 1 an extraordinary relief is given to the plaintiff, namely, in appropriate cases where the court finds a strong prima facie case in favour of the plaintiff and if the court is satisfied that the defendant is likely to defeat the decree in future as and when it is passed, then the court shall grant attachment before judgment even before final adjudication of the claim of the plaintiff, hence it is an extraordinary relief given to the plaintiff by the court. However, under Order 39 Rule 9 the court shall order withdrawal of attachment when the suit is dismissed. Therefore, Rule 9 makes it mandatory for the court to lift the attachment at the time of the dismissal of the suit. Such a provision is not there under Order 39 or under Order 40. This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash (Supra). All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38, Rule 11 it is further provided that when the suit is decreed the courts will continue attachment before judgment and the plaintiff is not required to reapply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21 Rule 57 indicates the duty on the courts to order whether the attachment shall continue or cease on the dismissal of the execution suit."
(Emphasis supplied)
15. Thus, it is apparent from the aforesaid dictum, s.94 of MP 1377/17 & MP 1507/17 9 CPC cannot be invoked in isolation and the sine qua non is that it should pass the test of various conditions as envisaged under Or.38 of CPC.
16. Applying the aforesaid dictum to the facts and circumstances of the present case and the manner in which the impugned order has been passed, it becomes crystal clear that no reasons have been assigned by the learned judge of the trial court in coming to the conclusion that the defendant is liable to furnish the bank guarantee. In the application filed by the plaintiff u/s.94 of CPC only an apprehension has been raised that if the decree is passed in its favour, the defendant shall avoid the same, however, no specific averments have been made in this behalf.
17. The contention of the learned counsel for the plaintiff that the order has also been passed under s.151 of CPC cannot be accepted as the powers under s.151 of CPC can be invoked in order to meet extra ordinary circumstances only which cannot be redressed under s.94 read with order 38 of CPC. This Court also finds that although no reasons have been assigned by the learned trial Judge in the impugned order but by way of a lengthy reply the plaintiff has tried to supplement the reasons which in the considered opinion of this Court cannot be allowed. The decisions relied upon by the learned counsel for the petitioner in the case of Jai Singh & Ors. Vs. MCD & Another (Supra) and Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (Supra) are clearly distinguishable and have no application in the facts and circumstances of the present case.
18. Although, the plaintiff's contention that the defendant be directed to disclose the information regarding his movable and immovable properties has some substance as it is but natural for the plaintiff to be apprehensive about the outcome of the MP 1377/17 & MP 1507/17 10 case and how the decree, if passed in his favour, would be executed against the defendant especially when the stakes are high. In such circumstances, the learned judge could have directed to the defendant to disclose the information regarding his properties but no such order has been passed which calls for correction. Hence, the impugned order is modified and now it is directed to the petitioner to furnish the details of all his movable and immovable assets before the trial court within a period of 15 days from today.
19. In view of the aforesaid discussion and the facts and circumstances of the case, the impugned order is liable to be and is hereby quashed and the same is modified to the extent as above. However, the liberty is reserved to the petitioner to file fresh application in this behalf after the petitioner has furnished the details of his assets in the trial court.
C.C. As per rules.
(Subodh Abhyankar) Judge Vikram Digitally signed by VIKRAM SINGH Date: 2018.02.01 15:37:14 +05'30'