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2001 Supreme(Ker) 509
Judges : M.R.HARIHARAN NAIR
Greater Cochin Development Authority - Appellant
Versus
Harrisons Malayalam Ltd.& Another - Respondent
Case No : CRP No 1472 of 1999
Decided On : 10/31/2001
Advocates Appeared :
For the Petitioner: M.V. Joseph, Advocate. For the Respondent: R1, Antony Dominic, A.M. Shaffique, R2, K.L. Varghese, Santha Varghese, Advocates.
Headnote:
Civil Procedure Code, 1908 – Order XXI, Rules 46A & 46B, Order XXXVIII Rule 5(3) –Attachment of Property – Findings of – Held, By service of the order in the particular Form the garnishee or the defendant is not prejudiced in any manner because no direction is contained therein, which is not authorised by the provisions of law. – Fact that the court has restrained payment is clearly communicated in the order served on the garnishee and the ambiguity, if any, available in the form prescribed is cleared in the specific order actually served on the garnishee. – It may also be mentioned here that this being attachment of a debt, it is O. 21 R. 46 that applies regarding the manner of effectuating the attachment order and that O. 21, R. 46(2) provides for service of the prohibitory order on the garnishee besides affixture in the Court's Notice Board. Both these requirements have been fulfilled here. – No mandate in O. 21, R. 46(2) that copy of the prohibitory order should be served on the defendant also. – Court is of the view that though an attachment before judgment would take effect the moment it is served and henceforth the garnishee would be prohibited from making over payment of the amounts to the defendant, nevertheless, the amount is to be called for into court applying O. 21 R. 46-A of the CPC only when an application for execution is actually filed pursuant to the decree that might ultimately be passed in the particular suit wherein the attachment before judgment is ordered and effected. – Court do not think that the order calling upon the defendant to furnish security for Rs. 7 crores or to appear and show cause why they should not furnish such security and in the meanwhile attaching the amounts through prohibitory order is defective. – In fact subsequent events clearly show that if the Court had not acted promptly as it did, a failure of justice would have resulted.
M.R. Hariharan Nair, J.
These revisions raise important questions with regard to the satisfaction to be arrived at while passing order of attachment before judgment; as to the manner in which the order has to be served; as to the impact of failure to strictly comply with the terms of the relevant provisions and forms and also a novel question whether steps under Order 21 Rule 46-A & 46-B can be taken by the trial court before a decree is passed in the case.
2. C.R.P. Nos. 1565 and 1566/99 arise from the order passed in I.A. Nos. 1708/99 and 6424/98 of the Sub court, Ernakulam. Both these revisions are at the instance of the defendant in O.S. No. 713/98 of the Sub Court, Ernakulam, namely, M/s. Hindustan Steelworks Construction Ltd. C.R.P. No. 1472/99 is filed by the G.C.D.A., Cochin, who is the garnishee. The 1st respondent in all the three revisions is M/s. Harrisons Malayalam Ltd., who is the plaintiff in the aforesaid suit whose prayer in the suit is to recover a sum of Rs. 6,19,07,317/-, being the amount payable under an alleged contract entered into with the defendant-Hindustan Steelworks Construction Ltd. (These parties will hereinafter be referred to as plaintiff and defendant respectively and G.C.D.A. will be referred to as the garnishee).
3. After hearing the plaintiff, the trial court passed the following order on 23-12-1998 in I.A. No. 6424/98 wherein the prayer was for attachment before judgment for a sum of Rs. 7,00,00,000/ allegedly due from the garnishee to the defendant.
"Heard. Issue notice to the 1st and 2nd respondents (H.O. & Branch Office of the defendant) to furnish security for Rs. 7 crores or to appear and show cause why they should not furnish security. Meanwhile, the petition schedule amount will be attached. For report and return of notice 27-2-1999."
4. Pursuant to notice both these respondents as also the garnishee entered appearance on 27-2-1999. Objections were filed on 27-2-1999 and 2-7-1999 respectively. The matter was ultimately heard on 6-7-1999.
5. In the meantime, I.A. No. 1708/99 was filed on 24-5-1999 alleging that violating the attachment order served on the garnishee it paid a sum of Rs. 55 lakhs to the defendant in the first week of May, 1999 and that therefrom the defendant released a sum of Rs. 21,81,000/- only by way of 5 separate cheques to the plaintiff. As the release of 55 lakhs by the garnishee was in violation of the attachment order of the court, the petition sought direction to the garnishee to deposit before court a sum of Rs. 50 lakhs under Order XXI Rule 46-B or such amount which they paid to the defendant after 23-12-1998 violating the order of the court.
6. Both these petitions were disposed of on 20-7-1999; but under separate orders. In the former petition the order passed was one making the earlier interim attachment absolute. In the latter the decision was that the garnishee should deposit in court within 7 days a sum of Rs. 50 lakhs out of the sum of Rs. 7 crores attached by the court. In C.R.P. Nos. 1565/99 and 1566/99 the defendant attacks both these orders. In C.R.P. No. 1472/99 the garnishee challenges the direction to deposit a sum of Rs. 50 lakhs.
7. In all these revisions there is a common contention, namely that the order of interim attachment passed by the trial court was irregular illegal and void in so far as no copy of the order was served on the defendant and also because the attachment order itself is not in the form prescribed by the Code of Civil Procedure. There is also a contention that the order of attachment does not contain the reasons which prompted the trial court to issue an order of interim attachment before the defendant was heard pursuant to the notice on the aspect of furnishing security. Here again , the contention is that the trial court erred in violating the requirements of law and hence the order of attachment is void. It is on this edifice that the garnishee builds up the argument in C.R.P. No. 1472/99 that there is no justifica
