ORAL JUDGMENT

The appeal is filed by the appellant/defendant questioning the order dated 12.04.2021 passed on I.A.No.III filed under Order XXXVIII Rule 5 & 6 read with Section 151 of CPC in O.S.No.223/2020 on the file of III Additional Senior Civil Judge and JMFC, Mangaluru, Dakshina Kannada¹, whereby the schedule properties A, B and C are attached.

2. It is case of the plaintiff that the appellant/defendant is the employee of the plaintiff/ respondent Company. The defendant has appointed as Team Lead - Finance with the salary of Rs.36,020/-. The allegation against the appellant/defendant that he has misappropriate sum of Rs.4,09,29,935/-. Therefore, filed hereinafter referred to as ‘the Trial Court’ for short the suit for mandatory injunction directing the defendant to pay sum of Rs.4,09,29,935/- with the plaintiff company with interest at the rate of 12% p.a., from the date of suit till realization. Also the plaintiff has filed IA No.III under Order XXXVIII Rule 5 & 6 of CPC praying for conditional order of attachment before judgment of movable and immovable properties as shown in scheduled A, B and C before judgment. The trial Court has allowed I.A.No.III by passing order of attachment before the judgment. This order assailed in this appeal by raising various grounds in the memorandum of appeal.

3. Learned counsel for the appellant/defendant vehemently submitted that the order passed is in a mechanical way and there is no cogent reasons made out by the plaintiff for obtaining such an order. Mere deposition in the affidavit is not sufficient regarding the plaintiff deemed to have understand the defendant that the defendant is going to sell away his property is not the ground to grant an order of attachment. By placing various judgments on this issue, learned counsel for the appellant/defendant submitted that the order of attachment is illegal. Hence, prays to allow the appeal. He places reliance on the judgments of the Hon'ble Apex Court as well as this Court which are extracted below:

(i). RAMAN TECH & PROCESS ENGG. CO & ANR. VS. SOLANKI TRADERS, 2008(2) SCC 302 (Raman Tech’s Case)

(ii). ASHISH KRISHNASWAMY VS. MONEY FOCUS INFRASTRUCTURE PRODUCTS LTD BANGALORE & ORS, ILR 2021 KAR 2491 (Ashish Krishnaswamy’s Case)

(iii). KRISHNAPPA VS. SMT. K.N. SRIDEVI (Krishnappa’s Case)

(iv). PALGHAR ROLLING MILLS (P) LTD. VS. VISVESWARAYYA IRON & STEEL LTD, ILR 1985 KAR 3989 (Palghar Rolling Mills Case)

4. It is sum and substance of the submission made by the learned counsel for the appellant/defendant that the plaintiff has not made out prima facie case so as to grant an order of attachment. The mere allegation that the defendant has committed fraud is not sufficient, as the provisions under Order XXXVIII Rule 5 CPC can be accessed for hearing, otherwise, it infringes the rights of the appellant/defendant.

5. Therefore, submitted that the plaintiff ought to have shown some prima facie material warranting issuance of an order of attachment before judgment, but that has not been done. Therefore, prays to allow the appeal.

6. On the other hand, learned counsel for the respondent/plaintiff submitted that the defendant/ appellant has not disputed that he was an employee of the respondent/plaintiff - Company as a Team Lead - Finance. The plaintiff has made a detailed statement on how the defendant has siphoned off the amount of the plaintiff- company, which constitutes prima facie case and balance of convenience so as to grant an order of attachment and if an order of attachment before judgment is not granted, then what would the plaintiff suffer, loss or injury is also stated. Otherwise, even if decree is passed in favour of the plaintiff, that will only become a paper decree and not possible for the plaintiff to recover the said amount. Therefore, the plaintiff has made a strong prima facie case and balance of convenience by making detailed pleading in the plaint. Also, what is the amount stated in the plaint the same amount is credited to the bank a