Attachment of property of individual partner not proper.

Sengottuvelan, J.

1. This is an application by the plaintiff for attachment before judgment of the properties of one of the partners of the defendant firm under Order 38, Rule 5, Civil Procedure Code, read with Order 14, Rule 8 of the Original Side Rules.

2. The facts of the case are briefly as follows : The applicant-plaintiff, viz., a partnership-firm, filed the above suit for recovering a sum of Rs. 1,00,000 due from the respondent/defendant which is also a partnership firm. The claim arises out of an agreement under which the respondent agreed to pay Rs. 13,50,000 as lease consideration to the applicant for taking on lease the exploitation rights of a Tamil Talkie picture all over the world. At the time of the release of the picture the respondent was not able to pay the entire consideration and had to leave an arrears of Rs. 1,35,000. The applicant refused to deliver any print for release till the payment of entire consideration. The respondent assured that he will withhold the release of the picture in the districts of Madurai and Ramanathapuram as security for the balance of consideration and also undertook not to take delivery of the prints, kept ready for release in the districts of Madurai and Ramanathapuram from Gemini Colour Laboratory without paying the balance consideration. The respondent has also undertaken to pay the abovesaid balance consideration within one week from 14th March, 1984. The respondent failed to pay the said balance. A sum of Rs. 35,000 was paid out of adjustment and the balance of Rs. 1,00,000 is due and hence the above suit is filed for the recovery of the same.

3. The respondent has purchased the exploitation rights of another Tamil Talkie picture from a third party and the applicant herein filed Application No. 2159 of 1984 to attach such rights, where initially an injunction was Ordered on 22nd November, 1984. Despite such Orders the respondent cleverly manipulated and fabricated a false agreement and released the picture totally defeating the rights of the applicant.

4.The respondent has virtually violated his undertaking not to release the picture in Madurai and Ramanathapuram districts by releasing the same in Sivam Theatre, Madurai, surreptitiously through third parties utilising prints delivered for exploitation in other areas and thus committed an offence of infringement of copyright, for which the applicant has filed a separate suit C.S. No. 756 of 1984 on the file of this Court. In the said case despite notice in the interlocutory application the respondent failed to enter appearance. In the present case though the respondent had initially entered appearance through counsel, subsequently the said counsel when sought to be served with notice in the application, refused to receive it stating that he had no instructions from the party on this matter. Thus, the respondent has been exhibiting fraudulent intention and a total indifference to the lawful claim of the applicant.

5. The respondent is heavily involved in debts and he has to pay huge amounts to Ganapathy Vel Murugan Combines and Gemini Colour Laboratory, apart from other sundry creditors.

6. The respondent's partner is possessed of only one property, viz., House, ground and premises bearing No. 15, Malony Road, T. Nagar, Madras-17, which is also encumbered. The property will be worth about Rs. 15,00,000. The respondent with intent to defeat and delay the claim of the creditors, is attempting to alienate the said property and to secrete the proceeds therefrom beyond the reach of the creditors. If the respondent is allowed to do so the applicant will be left with no means of realising the fruits of the decree. In the interest of justice and to safeguard the rights of the applicant, the abovesaid property will have to be attached before judgment.

7. Mr. V.R. Biksheswaran, Learned Counsel for the respondent, took notice of the application and contended that this application is not maintainable for the following reasons:

(1) An Order