Failure to comply with the order to furnish security under Order XXXVIII of the Civil Procedure Code may justify the attachment of properties.

JUDGMENT

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order passed in I.A.No.1 of 2019 in C.O.S.No.29 of 2019 in C.O.S.No.29 of 2019 by the learned District Judge cum Commercial Court, Salem, dated 20.12.2019.)

1. The defendants in C.O.S.No.29 of 2019 on the file of District Judge cum Commercial Court at Salem had filed the present Civil Revision Petition seeking to set aside the orders dated 20.12.2019 passed in I.A.No.1 of 2019 in COS.No.29 of 2019 by the learned District Judge cum Commercial Court, Salem.

2. The respondent herein /plaintiff filed a suit in O.S.No.29 of 2019 for recovery of a sum of Rs.8,47,700/- together with interest at the rate of 12% per annum from the date of plaint till the date of realisation.

3. According to the respondent/plaintiff, the defendants borrowed a sum of Rs.7 lakhs from him on 16.6.2017 and in order to discharge the same, the defendants issued various cheques. It is further contended that when the plaintiff presented all the cheques for collection before the State Bank of India, Attayampatti Branch, Salem, the same were returned by the bank with an endorsement “NON CTS CHQUE”. Thereafter the plaintiff filed a suit for recovery of amount and along with the plaint, he filed an interlocutory application in I.A.No.1 of 2019 seeking for a direction to the defendants to furnish security to the suit amount, failing which, to order attachment of their properties.

4. The learned Principal District Judge, Salem, vide his orders dated 10.12.2019, issued notice to the defendants and also directed them to furnish security on or before 20.12.2019. Since the defendants did not furnish security as per the directions of the trial court, the learned trial Judge vide orders dated 20.12.2019, attached the properties of the defendants. Aggrieved over the same, the present Civil Revision Petition is filed.

5. Order XXXVIII, Rule 1 to 5 of Civil Procedure Code reads thus;

1. Where defendant may be called upon to furnish security for appearance:- Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied by affidavit or otherwise,-

(a) that the defendant with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,-

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court or

(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave (India) under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

2. Security. - (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a de