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IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR, THE HONOURABLE MR. JUSTICE P. DHANABAL, JJ.
A. Pradeep - Appellant
Versus
Tmt. Binu Christeena and Ors. - Respondents
O.S.A(CAD)No.70 of 2021, CMP.No.13903 of 2021
Decided On : 20-11-2023
APPEAL - COMMERCIAL COURTS ACT, 2015; CODE OF CIVIL PROCEDURE, 1908 - Sections 13(1) of the Commercial Courts Act, 2015; Order 38 Rule 5 CPC; Order 43 Rule 1 CPC - The court discussed the provisions of the Commercial Courts Act, 2015, particularly Section 13(1), which outlines the appeal process from decrees of Commercial Courts. It also examined Order 38 Rule 5 of the CPC, which governs attachment before judgment, emphasizing that the plaintiff must demonstrate a genuine claim and the defendant's intent to obstruct justice. The court concluded that the appeal was not maintainable as the order under Order 38 Rule 5 CPC is not listed as appealable under Order 43 Rule 1 CPC, thus influencing the dismissal of the appeal.
Fact of the Case:
The plaintiff filed a suit for recovery of a sum of Rs.2,39,18,494/- against the defendants, who were the owners of a property. The plaintiff had entered into a sale agreement for the property but sought attachment before judgment due to concerns about the defendants potentially disposing of the property. The court had ordered the defendants to furnish security, leading to the current appeal.
Finding of the Court:
The court found that the appeal was not maintainable as the order passed under Order 38 Rule 5 CPC does not fall under the appealable orders specified in Order 43 Rule 1 CPC. The court emphasized the necessity for the plaintiff to establish a prima facie case for attachment before judgment.
Issues: Whether the intra-Court appeal against the order of attachment before judgment is maintainable under the provisions of the Commercial Courts Act and the CPC.
Ratio Decidendi: The court held that an appeal against an order under Order 38 Rule 5 CPC is not maintainable as it is not included in the list of appealable orders under Order 43 Rule 1 CPC, reinforcing the principle that the burden of proof lies with the plaintiff to show the necessity for such an order.
Final Decision: The appeal was dismissed as not maintainable, with the court allowing the appellant to seek redress in an appropriate forum if aggrieved by the order.
JUDGMENT :
(D. Krishnakumar, J.)
(Prayer : Original Side Appeal filed under Section 13 of the Commercial Courts Act, 2015 against the order dated 20.04.2021 made in Application No.885 of 2021 in C.S.No.81 of 2021.)
This Intra Court appeal is filed, challenging the order dated 20.04.2021 made in A.No.885 of 2021 in C.S.No.81 of 2021.
2. The facts leading to the filing of this appeal, briefly narrated, are as under:
2.1. The first respondent/plaintiff has filed a Suit in C.S.(Commercial Division) No.81 of 2021 under Order IV Rule 1 CPC for judgement and decree against the appellant and the respondents 2 to 8 herein/defendants for recovery of a sum of Rs.2,39,18,494/- with interest at the rate of 18% per annum on the Suit amount of Rs.1,31,00,000/- from the date of the Plaint till the date of realisation.
2.2. The respondents 2 to 8/defendants are the absolute owners of the property bearing Plot Nos.8, 9 & 10, situated at Second Cross Street, Sea View Avenue, Sri Kabaleeswarar Nagar, Neelankarai, Chennai-115, comprised in S.No.92/2A, as per Patta No.2496, bearing S.No.92/238-A admeasuring 14,645 Sq.Ft. and with a view to sell the aforesaid property, they have executed a General Power of Attorney in favour of Mr.A.Pradeep, the 8th respondent herein.
2.3. The plaintiff/first respondent has approached the appellant and offered her willingness and agreed to purchase the aforesaid property for Rs.1,25,00,000/- per ground. On measurement, it was found that the actual extent of the property is 12,823 Sq.Ft., and therefore, the plaintiff agreed to purchase the aforesaid property for a total consideration amount of Rs.6,67,86,458/- by executing a Sale Agreement dated 25.07.2016.
2.4. The first respondent/plaintiff has filed a Suit in C.S.No.81 of 2021 for recovery of money along with attachment before judgment application in A.No.885 of 2021 before this Court, in which this Court, vide order dated 20.04.2021, has directed the 8th respondent to furnish security within a period of six weeks. Challenging the same, the present intra-Court appeal is filed.
3. The learned counsel for the appellant contended that there is no reason/averment found in the affidavit filed by the respondent/plaintiff that the appellant/defendant would make attempt to dispose of their property or is about to remove the property from its jurisdiction and before passing the order of attachment under Order 38 Rule 5(1) of the Civil Procedure Code, the learned Judge has failed to consider the same and therefore, the order of the learned Single Judge is unsustainable and the same is liable to be set aside.
4. Per contra, Mr.K.Rasekaran, learned counsel for the first respondent/plaintiff has raised a preliminary objection as to the maintainability of the present appeal as against the order passed in the application filed under Order 38 Rule 5 CPC. In support of his contention, he drew the attention of this Court to the decision in Hubtown Limited v. IDBI Trusteeship Service Limited reported in 2016 SCC Online Bom 9019 and Hindustan Unilever Limitd Ponds House v. S.Shanthi reported in 2021 SCC Online Mad 5428.
5. In reply, the learned counsel for the appellant submitted that this appeal is maintainable and seeks for allowing of this appeal.
6. We have anxiously considered the rival submissions of the parties on the maintainability of this appeal.
7. The object and scope of Order 38 Rule 5 of CPC is only to safeguard the plaintiff from any damage caused or likely to be caused by the defendant acquiring the suit property while the case is pending. "Attachment before Judgment" is a punitive remedy since it significantly interferes with the defendant’s property rights prior to the ultimate settlement of the dispute. A defendant is not forbidden from engaging with the suit property merely because a lawsuit has been filed against him. The burden of proof lies on the plaintiff. The plaintiff must establish prima facie that his claim is substantial and genuine, as well as satisfy the
An appeal against an order of attachment before judgment under Order 38 Rule 5 CPC is not maintainable as it is not enumerated as an appealable order under Order 43 Rule 1 CPC.
It is settled law that power under Order 38 Rule 5 of CPC is drastic and extraordinary power.
A plaintiff must establish a prima facie case for attachment before judgment, ensuring no asset disposal occurs that could obstruct potential recovery, as underscored by Order 38 Rules 5 and 6 of CPC....
An appeal under Section 13(1A) of the Commercial Courts Act is maintainable only against orders specified in Order XLIII of the CPC, and the dismissal of an application under Order VII Rule 10 CPC is....
A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.
Attachment before judgment requires strict compliance with procedural mandates; failure to do so renders the order unsustainable.
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