Back
2023 Supreme(MP) 171
IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar, J.
Premnarayan v. M/s. Golden Heritage Developers Indore
Miscellaneous Petition No. 3055 of 2022 (I); Decided on 20.4.2023
Vinay Saraf with Chetan Agrawal for petitioners; V.K. Jain with Vaibhav Jain for respondent No. 1. Gaurav Kumar Verma for respondent No. 2.
Headnote:
Civil P.C. 1908 -- O. 38 R. 5 -- application of plaintiff for furnishing of solvent security by defendant for production of property -- prima facie case necessary to establish fair chances of succeeding in suit -- primary burden on plaintiff -- Court required to see reply of defendant only after aforesaid burden discharged -- unreasoned order of trial Court to furnish security liable to be set aside. (2008) 2 SCC 302 and (2021) 6 SCC 418 followed. [Paras 9, 11 & 12]
flfoy çfØ;k lafgrk] 1908 & vkŒ 38 fuŒ 5 & laifRr is'k djus gsrq çfroknh }kjk _.k'k¨èk{ke çfrÒwfr fn, tkus d¢ fy, oknh dk vkosnu & okn esa lQy g¨us dh vPNh laHkkouk LFkkfir djus ds fy, çFken`"V~;k ekeyk vko';d & çkFkfed Òkj oknh ij & iwo¨ZDr Òkj d¢ fuoZgu d¢ i'pkr~ gh U;k;ky; dk çfroknh d¢ mÙkj ij è;ku nsuk visf{kr & çfrÒwfr is'k djus dk fopkj.k U;k;ky; dk dkj.kjfgr vkns'k vikLr fd, tkus ;¨X;A ¼2008½ 2 ,l lh lh 302 rFkk ¼2021½ 6 ,l lh lh 418 vuqlfjrA ¼iSjk 9] 11 ,oa 12½
ORDER
1. This Miscellaneous Petition has been filed under Article 227 of the Constitution of India by the petitioners/defendants No.2&3 against the order dated 15.6.2022, passed by the Additional District Judge, Indore in Regular Civil Suit (B) No.191/2019, whereby, on an application filed under Order 38 rule 5 of the C.P.C. the learned Judge of the trial has directed the petitioners to furnish solvent security to the tune of Rs.4,13,40,000/-.
2. In brief, the facts of the case are that the respondents. No. 1 & 2/plaintiffs have filed a suit for recovery of the aforesaid amount on the ground that out of the aforesaid amount, a sum of Rs.2,60,00,000/- was given in cash to the plaintiffs and the remaining amount is towards the interest. In this suit, although the issues have already been framed, but as the plaintiffs had filed an application under Order 38 rule 5 of the CPC along with the plaint seeking a direction to the respondents for attachment of the property in question, which was promised to be sold by the defendants to the plaintiffs, the learned Judge of the trial Court, vide its order dated 5.5.2022 directed the plaintiffs to furnish the requisite information as per format prescribed and the defendant was also directed to file written statement and also submit as to why the security may not be directed to be furnished by the defendants. Subsequently, the plaintiffs have also filed the details of the property on 13.5.2022, and the defendants were also issued show cause notice as to why the security may not be taken from them. Thereafter, the final order has been passed by the trial Court on 15.6.2022, holding that under the facts and circumstances of the case, the security requires to be taken from the defendants No.2 & 3 and thus, the defendants have been directed to furnish the security to the tune of Rs.4,13,40,000/- so that the decree, if passed against them can be satisfied.
3. Learned Senior counsel Shri Vinay Saraf for the petitioners has submitted that the learned Judge of the trial court has erred in law in not properly following the procedure as prescribed under rule 5 of Order 38 of the CPC, and prima-facie, no satisfaction has been recorded regarding the claim of the plaintiffs. It is also submitted that although the learned Judge of the trial Court has not applied his mind that whether the plaintiffs have got any prima-facie case, which requires the security to be furnished by the defendants.
In support of his submissions, Shri Saraf has also relied on the decision rendered by the Supreme Court in the case of Raman Tech. & Process Engg. Co. and another v. Solanki Traders reported as (2008) 2 SCC 302. Relevant paras 4, 5 & 6.
Thus, it is submitted that the impugned order be set aside as no security is required to be furnished by the plaintiffs for want of any prima-facie satisfaction recorded by the trial Court.
4. On the other hand, learned senior counsel Shri V.K. Jain for the respondent No.1 has opposed the prayer and it is submitted the learned Judge of the trial Court has in his order dated 15.6.2022, clearly held that the petitioners/defendants No.2 & 3 have failed to file any reply to the show cause notice issued to them as to why the security amount may not be taken from them. Thus, it is submitted that it is for the defendants No.2 & 3 to satisfy the Court as to why the security amount should not be taken from them, however, they have not shown any document on record. The learned Judge of the trial Court has rightly allowed the application under Order 38 rule 5 of the CPC.
In support of his submission, Shri Jain has also relied upon the decision rendered by the Supreme Court in the case of Rahul S. Shah v. Jinendra Kumar Gandhi and others reported as (2021) 6 SCC 418.
5. Learned senior counsel for the respondent No.1 has also drawn attention of this Court to the latest amended M.P. civil Courts rule, in which, the procedure has been prescribed regarding security is to be furnished by the defendants for th
