IMPORTANT POINTS
Once the respondent fails to establish a prima facie case, investigation into other conditions stipulated in Order 38 Rule 5 of Code of Civil Procedure (herein after referred to as 'the Code' for short) as to whether appellant with ulterior motives intended to dispose of the property or remove it from local limits of the jurisdiction courts is uncalled for. In such a situation, the respondent could never claim an order of attachment before judgment against the appellant at all. Likewise, if respondent succeeds in showing a prima facie case, but fails to establish the conditions in Clauses in (a) and (b) in Order 38 Rule 5 of the Code as to the alleged intention of appellant, the law will not still favour him with an order of attachment before judgment. This is because attachment is said to be an extra ordinary power vested in the court and unless it is wielded with care and caution, it would go to the extent of leaving a very disastrous effect on the adverse party affecting his status and reputation in public.

T.V. Anilkumar, J.

An amount of Rs.10,00,0000/- (Rupees one crore only) alleged to be maintained by the appellant-Galgotias University in the State of Uttar Pradesh in its account with Union Bank of India, Noida main branch was attached before the judgment in O.S.No.84/2018 by the learned Sub Judge, Ernakulam through the impugned order passed on 07.02.2019 and correctness of the same is challenged in this appeal before us.

2. The appellant-first defendant in the suit is a University established in the State of Uttar Pradesh under Galgotias University Act, 2011 and the defendants 2 and 3 are the officials in charge of the institution.

3. The sole respondent in the appeal who is the plaintiff in O.S.No.84/2018 is a public limited company engaged in the field of publishing news paper as well as various periodicals across the country and abroad for the past several years having one of its publishing centres at Ernakulam within the territorial jurisdiction of Sub Court, Ernakulam.

4. The case set up by the respondent/plaintiff in O.S.No.84/2018 is that the appellant's officials approached the respondent company seeking to publish advertisements for the University and educational courses conducted by it in the periodicals of the respondent for a definite period of time. On 31.03.2014, the second defendant, Chancellor of the appellant-University placed a request with the respondent seeking to issue advertisements in weekly periodicals called 'The Week' in IFC pages for a period commencing from 13.04.2014 to 29.06.2014 at the rates specified in the letter. The letter was accepted and according to the respondent, it amounted to a concluded contract between the parties. On 17.06.2014 also, a similar letter was received from the appellant requesting to publish advertisements in weekly periodicals titled as 'The Week', 'Smart life' and 'The Man' for a period commencing from 06.07.2014 to 01.12.2014 in IFC pages and in the manner indicated in the letter and at the rates specified. This letter too was accepted by the respondent and according to it, a concluded contract came into existence as in the case of earlier transactions.

5. According to the respondent, the specific advertisement materials approved by the appellant were timely published in the periodicals as demanded right from 13.04.2014 to 01.10.2014. Respondent says that when invoices were raised claiming advertisement charges incurred for the respective periods, the appellant adopted a very lethargic attitude towards discharging the liability and kept the charges in arrears without any reason. However, after repeated follow ups and reminders, the respondent managed to obtain a cheque dated 30.06.2015 from the appellant for an amount of Rs.13,23,000/- in partial discharge of liability. The cheque was encashed and respondent adjusted the amount towards the first three transactions as per invoices dated 13.04.2014, 20.04.2014 and 27.04.2014. After the issue of cheque no more payments were made. The respondent has quantified the unpaid advertisement charges to the tune of Rs.78,65,000/- as per the invoices and adding TDS also, total liability of the appellant was fixed as Rs.79,86,000/-. A lawyer's notice was sent on 30.06.2016 to appellant demanding discharge of its liability and since the attempt in that respect did not succeed, respondent filed O.S.No.84/2018 before Sub Court, Ernakulam on 12.04.2018 seeking recovery of an amount of Rs. 79,86,000/- with 12% interest per annum from the appellant/University and the officials in charge of it.

6. Along with the suit, the respondent filed I.A. 1631/2018 under Order 38 Rule 5 and Order 21 Rule 46 read with and Section 151 of the CPC seeking an order of attachment before judgment for an amount of Rs.1,18,38,250/- alleged to be kept in the current account of the appellant in Oriental Bank of Commerce, Noozapur Branch in U.P. An interim order of attachment was issued by the court below on the date of suit itself and later the respondent