The plaintiff must demonstrate the defendant's intent to obstruct or delay the execution of any decree as required by Order 38 Rule 5 of Code of Civil Procedure.

1. This application has been filed for attachment of the bank account of the 5th respondent bearing Account No.222-0-526418-9 maintained with the Standard Chartered Bank, Mumbai, Garnishee.

2. In support of the applications, it is pleaded that the plaintiff/applicant had entered into a sales contract on 1.11.2011 with Itus International FZE, respondent No.1 for sale of 150 M.T. + 10% Remelted Lead Ingots in six numbers of 20 feet containers at the rate of USD 1800 per M.T. C.I.F., Chennai. Under the contract with the respondent No.1, the latter was to load the aforesaid quantity of goods at any Middle-East Port and have the same discharged at Chennai. The payment was to made 100% cash against document (CAD) through bank with Sharjah Islamic Bank at HISN branch, Sharjah, United Arab Emirates, being the nominated bank of the respondent No.1.

3. The terms and conditions of the parties was that the disputes were to be settled amicably or by arbitration by B.I.R. at Delhi. However, quantity of the goods were agreed to be discharged at Chennai Port. The bankers of the applicant is HDFC Bank Limited at 8/24, Salco Centre, 3rd Floor, Richmond Road, Bangalore 560 025 and the original documents were to be forwarded to the bankers of the respondent No.1.

4. On 31.1.2012, the respondent No.5 issued a Cargo Arrival Advice to the applicant informing that six containers, being the subject matter of the aforesaid two bills of Lading arrived at Chennai Port on 1.2.2012 on board the vessel MSC Levina and the said goods had been manifested in IGM No.2029419, Item No.128.

5. On 8.2.2012 HDFC Bank Ltd., the bankers of the applicant received non negotiable copies of two Bills of Lading bearing No.MSCUD9127343 dated 27.12.2011 and No.MSCUD9132319 dated 17.1.2012 from the bankers of the respondent No.1 whereby the respondent No.1 represented to the applicant that the goods under the sales contract had been allegedly shipped by the respondent No.1 on board vessels, namely M.V. Northern Valour and MSC Mozambique under Bill of Lading No.MSCUD9127343 dated 27.12.2011 and Bill of Lading No.MSCUD9132319 dated 17.1.2012 from the Port of Jebel Ali, United Arab Emirates for discharge at Chennai. HDFC Bank Limited intimated the applicant about the receipt of the Bills of Lading by an e-mail, dated 8.2.2012. The banker also sought necessary authorization for debiting the account for the full amount and also requested the applicant to submit the Bill of Entry as proof of import within three months from the date of payment.

6. By a letter dated 9.2.2012, the applicant authorized HDFC Bank to debit the account of the applicant for USD.269,937/-(USD two lakhs sixty nine thousand nine hundred and thirty seven only) being the amount of the bill inclusive of foreign bank charges. The aforesaid letter was initially scanned and sent to the bank by way of e-mail on the very same day. Subsequently, original letter was collected by the banker's representative and acknowledged on 11.2.2012.

7. On receipt of the original documents from the bank, the applicant engaged Sanjay Forwarders Pvt. Ltd. for clearance of the goods being the subject matter of the sales contract with the respondent No.1. The clearing agent of the applicant made necessary search and came to know from the website and downloaded the particulars of the Import General Manifest status where from it became apparent that the said Import General Manifest relating to the goods being the subject matter of the sales contract with the respondent No.1. Necessary inspection was also done on the Import General Manifest which was filed by the respondent No.5 on behalf of the respondent No.2 declaring the letter to be as an operator with discharge date and time as 31.1.2012. In the said Import General Manifest, the weight of the containers as specified in the Bills of Lading was stated as 124840 Kgs and 25125 Kgs, which tallied with the weight specified in the two Bills of Lading bearing No.MSCUD9127343