The court emphasized the stringent requirements for granting an attachment under Order XXXVIII Rule 5 CPC, highlighting the need for a prima facie showing of the defendant's intent to obstruct or delay the execution of a decree.

JUDGMENT (Oral)

1. The present Appeal under Section 13(1A) of the Commercial Courts Act, 2015 read with Order XLIII Rule 1 & 3 Code of Civil Procedure, 1906 (hereinafter referred to as "CPC", 1908) has been filed on behalf of the appellant (plaintiff in the original suit) against the Order dated 03.03.2022 passed by the learned Single Judge of this Hon'ble Court in CS (COMM) 1217/2018 wherein the an I.A. No.15168/2018 under Order XXXVIII Rule 5 CPC seeking attachment of the claim amount, has been dismissed.

2. The plaintiff in the suit (hereinafter referred to as the "appellant") is a supplier of iron material, TMT etc to defendant No. 1 (hereinafter referred to as the "respondent No. 1") which is a Joint Venture of defendant Nos. 2 & 3 (hereinafter referred to as the "respondent Nos. 2 & 3") that was created for the purpose of fulfilling a construction contract with defendant No. 4 (hereinafter referred to as the "respondent No. 4") on 07.10.2014.

3. The appellant raised 37 Invoices in lieu of the Purchase Orders for which materials were delivered to respondent No. 1. A total sum of Rs.6,00,00,000 was payable to the appellant under the said Invoices out of which a balance of Rs.2,70,82,437/- remained due which respondent No. 1 failed to pay despite having received all the goods. Respondent No. 1 had issued three undated cheques bearing numbers 445624, 445622 and 445623 in May, 2016 of Rs.25,00,000 each, along with the assurance that the amount due to the appellant would be settled by respondent No. 1, 2 & 3 from the amount that they were entitled to recover from respondent No.4. The appellant treated these undated cheques as a written acknowledgement of the dues owed by respondent No. 1 and the cheques were not deposited by the appellant on the request of respondent Nos. 1 to 3.

4. In the interim, the contract between respondent No. 1 and respondent No. 4 got terminated and a Sole Arbitrator was appointed by this High Court vide Order dated 24.05.2016. An intervention application in O.M.P. (I) (Comm.) No.54 of 2015 which was registered as IA No.4832 of 2016 was also filed by the appellant before this Court. While this intervention Application was pending, an Award dated 14.09.2018 was passed by the Sole Arbitrator in favour of respondent No.1 for aggregate sum of Rs.11,18,11,298 along with pendente lite and post award interest after subtracting the award amount of Rs.2,40,35,116/- for the counter claims.

5. The appellant thereafter, filed a suit for recovery on 31.10.2018 for a sum of Rs.2,70,82,437/- along with pendente lite and future interest @ 18% p.a. as respondent No. 1 had failed to make payments for the dues and also dishonoured the three cheques which they had issued. It was claimed by the appellant that though these cheques were not deposited in the bank on the request made by respondent Nos. 1 to 3, the said cheques would have been dishonoured had they been deposited. Along with the said suit, the appellant also filed an Application under Order XXXVIII Rule 5 CPC for the deposit of the claim amount payable by respondent No. 4 to appellant under the Award in the present civil suit pending adjudication between the parties.

6. The appellant submitted in the application that an amount of Rs.2,70,82,437/- was recoverable from respondent No. 1 as per the statement of account maintained by them, which respondent No. 1 had no intention of paying. Therefore, respondent No. 1 should not be entitled to receive the award amount from respondent No. 4 vide Award dated 14.09.2018 and the suit amount in the hands of respondent No. 4, be attached.

7. It was further submitted that the mala fide intention of respondent No. 1, not to pay, was apparent from the fact that it owed money to more than 16 other vendors. Also, the appellant was unable to trace respondent Nos. 1 to 3 for recovery of its dues. Further, much to the shock of the appellant, even the three cheques issued by respondent No. 1 had not been honoured. It was als