The court emphasized that discretion under Section 151 CPC for asset disclosure must be exercised judiciously to secure justice in money recovery cases, even before evidence is presented.

ORAL JUDGMENT:

1. Heard Mr. Dhaval Zaveri for the Petitioners and Ms. Vijeta Poulekar for Respondent No. 1.

2. Rule. Rule is made returnable forthwith. The matter is heard finally at the stage of admission with the consent of parties.

3. The issue involved in the present Petition is that the Application filed by the Petitioners/Plaintiffs under Section 151 of CPC, seeking directions from the Court against the Defendants to disclose their assets, is rejected. Such Application filed by the Plaintiffs was rejected by the Trial Court by the impugned order dated 12.05.2023, precisely on the ground that the Plaintiffs failed to prove that the Defendants are liable to pay the amount to the Plaintiffs.

4. Mr. Zaveri appearing for the Petitioners would submit that the Plaintiffs filed a suit for recovery of money against the Defendants and during the pendency of the said suit, an Application was filed under Section 151 of CPC, seeking directions to the Respondents to disclose on affidavit their assets, so as to secure the interest of the Plaintiffs, in case, the suit is decreed in their favour.

5. Mr. Zaveri would submit that in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi & Others, (2021) 6 SCC 418 , the Apex Court has laid down the guidelines under Articles 141 and 142 of the Constitution wherein it is mandatory for the Courts and more specifically, in the execution proceedings to demand such affidavit disclosing the assets of the Defendant/Judgment Debtor for the satisfaction of any decree.

6.Mr. Zaveri also placed reliance on the case of Rupa Ashok Hurra Vs. Ashok Hurra & Another, (2002) 4 SCC 388 , wherein the Constitution Bench of the Supreme Court discussed in detail the impact of the orders passed by the Supreme Court including the directions and the same has the binding effect.

7.The learned Counsel for Respondent No. 1, on the other hand, submits that first of all the Application filed by the Petitioners was premature since the trial is still at the primary stage and no evidence has been produced. She would further submit that there is absolutely no evidence against the Defendants and particularly Defendant No. 1 to show that he owes any money to the Plaintiffs. She submits that the decision of the Apex Court in the case of Rahul S. Shah (supra) also refers to the discretion of the Courts, which has been properly exercised by the Trial Court. She submits that the Petitioners, at the appropriate stage, may prefer such an Application, but, not at the present stage, when there is nothing on record to show about any liability of the Defendants to pay any amount to the Plaintiffs.

8.The rival contentions fall for determination.

9.The Petitioners/Plaintiffs filed a suit for recovery of money and other consequential reliefs against the Respondents/Defendants, praying the following reliefs:

“A. For a judgment and decree of direction to the Defendant No. 1 and Defendant No. 4, jointly and/or severally, to return, deliver and repay an amount of Rs.10,00,000/- with an interest of 18% per annum, unto the Plaintiffs; and the said Defendant No. 1, Defendant Nos. 2 and 3, jointly and/or severally, to return, deliver and repay an amount of Rs.2,48,30,300/- with an interest of 18% per annum, unto the Plaintiffs, from 05/04/2021, till the date of the actual payment;

B. For such other and further reliefs that this Hon’ble Court deems fit and proper;

C. For costs of the present suit.”

10.The Defendants contested the said suit by filing a written statement and the matter is pending before the Trial Court.

11.The Plaintiffs filed an Application under Section 151 of CPC vide Exhibit-7 wherein it has been claimed that the suit has been filed for recovery of money together with interest and costs and that there are further allegations of fraud as well as siphoning of the Plaintiffs’ money by the Defendants.

12.It is no doubt true that criminal complaints are filed and the matter is pending before the Trial Court. However, the Application at Exhibit-7 was filed