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2021 Supreme(Jhk) 211
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Anil Kumar – Appellant
Versus
Rajendra Prasad Singh – Respondent
C.M.P. No. 451 of 2020
Decided on : 09-04-2021
Important Points
Subject
Civil Law - Property Dispute
Act Referred
Headnote
Order XXXVIII Rules 5 and 6 of CPC - Quashing of Order - Building Construction Business - Alienation of Property - Revocation of Power of Attorney - Money Recovery Suit
Fact of the Case:
The petitioner, engaged in building construction business, entered into a development agreement with the respondent. The respondent revoked the power of attorney and attempted to alienate the property. The petitioner filed a money recovery suit and subsequently applied for security and attachment of the property, which was rejected by the court below.
Finding of the Court:
The court found that the petitioner failed to establish a prima facie case that the respondent was attempting to dispose of the property to defeat any potential decree. The court also noted that the suit was for money recovery and not for claiming any right over the land in question.
Issues: The issues revolved around the petitioner's claim of the respondent's attempt to alienate the property, the revocation of power of attorney, and the application for security and attachment under Order XXXVIII Rules 5 and 6 of CPC.
Ratio Decidendi: The court emphasized that an order under Order XXXVIII Rules 5 and 6 of CPC cannot be passed in a routine manner and that the plaintiff must establish a prima facie case that the defendant is attempting to dispose of the property to avoid a potential decree. The court also highlighted that the nature of the suit for money recovery did not necessitate the need for property attachment.
Final Decision: The court dismissed the petitioner's application and upheld the order rejecting the application for security and attachment of the property.
Advocate Appeared:
For the Appellant :Mr. R.N. Sahay, Mr. Yashvardhan, Mr. Kirtivardhan, Advocate
JUDGMENT :
The present case is taken up today through Video conferencing.
2. The present writ petition has been preferred for quashing and setting aside the order dated 14.09.2020 passed by the Civil Judge (Senior Division)- I, Dhanbad in Original Suit No. 291 of 2018 whereby the application of the plaintiff/petitioner filed under Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure (CPC) for issuance of direction upon the defendant/respondent to furnish security for the property in question as well as for issuance of order of attachment of the said property in case of default made by the defendant/respondent, has been rejected.
3. The factual background of the case, as stated in the writ petition, is that the petitioner is engaged in Building Construction Business in the name and style of “Pawansut Buildcon India (Pvt.) Ltd”. The petitioner and the respondent entered into a development agreement dated 18.01.2013 for construction of a multistoried building (residential-cum- commercial) over the land described in scheduled-A of the plaint. The respondent executed a registered deed of power of attorney dated 26.07.2013 in favour of the petitioner and appointed him as his true power of attorney to look after other needful work with respect to the land in question under the development agreement dated 18.01.2013. The defendant/respondent received a sum of Rs.11,00,000/- from the plaintiff/petitioner pursuant to the terms and conditions of the development agreement, however he did not give necessary permission by signing the relevant documents required for sanction of the building plan and as such the petitioner could not start the project. The petitioner demanded the said advanced amount in view of clause 8 of the agreement from the respondent and for this, he served various legal notices to the defendant/respondent. Thereafter, the defendant/respondent returned only Rs.3,00,000/- to the petitioner on 16.09.2017. The respondent replied by denying the said claim of the petitioner and demanded an amount of Rs. 4 crores from the petitioner. The petitioner denied the said claim of the respondent by serving the repudiation notice dated 17.11.2017. The respondent made a part payment of Rs.3,00,000/- out of Rs.11,00,000/- and balance of Rs.8,00,000/- is still due to him. The respondent revoked the power of attorney on 28.06.2017 and informed the same to the petitioner vide letter dated 21.07.2017. The petitioner filed a money recovery suit being Original Suit No. 291 of 2018 in the Court of Civil Judge (Sr. Division)-I, Dhanbad. The respondent filed his written statement. In the meantime, the petitioner came to know that the respondent was trying to alienate the suit property and as such he filed an application dated 26.02.2020 under Order XXXVIII Rules 5 and 6 of CPC for issuance of direction upon the defendant/respondent to furnish security for the property in question as well as for order of attachment of the said property in case of default made by the defendant/respondent. The court below, however vide order dated 14.09.2020, rejected the said application. Hence, the present writ petition.
4. The learned Senior Counsel for the petitioner submits that since beginning, the respondent was trying to extract money from the petitioner which would be evident from the fact that the respondent had suppressed the fact of pendency of Partition Suit no. 279 of 2012 between him and his brother, which would suggest malafide intention of the petitioner tainted with ulterior motive far from a fair play and business. The respondent has alienated the property in question by way of a development agreement purportedly with Shri Ganpati Developers and Builders. The court below has erred in rejecting the application dated 26.02.2020 filed under Order XXXVIII Rules 5 and 6 of CPC without taking into consideration that the defendant-respondent had already alienated the property described in Schedule A of the Original Suit No. 291 of 2018 by unilaterally
