Attachment before judgment under Order 38 Rule 5 CPC requires clear demonstration of a prima facie case from the plaintiff.

ORDER

1. The defendant in a suit for recovery of money is the appellant. The defendant is aggrieved by the impugned order passed by the Trial Court under Order 38 Rule 6 CPC, making the attachment before judgment absolute in I.A. No.2 of 2023. The attachment sought was with respect to the money lying in the Bank account of the defendant.

2. The suit was for realization of money of Rs.29,67,112/-

which consists of claims under four heads and interest. Rs.16,84,389/- is claimed as leasing incentive, Rs.2 lakhs is claimed as one month salary in lieu of Termination Notice, Rs.3 lakhs is claimed as damages for wrongful termination, Rs.59,210/- is claimed as leave encashment. These amounts along with interest form the plaint claim in the suit.

3. The Trial Court initially granted conditional attachment.

The defendant appeared and filed its Objection. Thereafter, the attachment was made absolute as per the impugned order since the defendant failed to furnish security for the plaint claim.

4. It is submitted by both sides that subsequently, security is furnished by the defendant by way of bank guarantee and the attachment is vacated.

5. Now the defendant is challenging the impugned order granting attachment before judgment on the ground that the conditions for ordering attachment before judgment as required under Order 38 Rule 5 CPC are not satisfied and hence the security furnished by the defendant in lieu of is liable to be released.

6. I heard the learned counsel for the appellant, Sri. S.

Krishnakumar, and the learned counsel for the respondent/plaintiff, Sri. K.M. Jamaludheen.

7. The learned counsel for the appellant contended that the Affidavit in support of the Application for attachment does not contain the material averments to invoke Order 38 Rule 5 CPC for obtaining attachment before judgment. The Trial Court did not consider the prima facie case for grant of attachment. The Trial Court did not consider the guiding principles relating to attachment under Order 38 Rule 5 CPC while passing the impugned order. If the Trial Court had considered the Guiding principles laid down in various precedents, the Trial Court would not have granted attachment. The Trial Court did not consider the fact that the defendant is a reputed running business establishment and the serious impact when its Bank Account is attached. The Trial court ought to have considered the sustainability of the claim with reference to the materials before it while granting the order of attachment. The learned counsel invited my attention to the decision of the Calcutta High Court inPremraj Mundra v. Md. Maneck Gazi and others [AIR 1951 Calcutta 156] which is followed by this Court inPareed Master v. Antony [ 1987 KHC 548 ] and affirmed by the Hon'ble Supreme Court inRaman Tech. & Process Engg. Co. and Another v. Solanki Traders [2008 KHC 4380]. The learned counsel also cited the Division Bench decision of this Court inSkoda Auto India Pvt. Ltd., Maharashtra v. M/s. St. Antony's Trading Company and Others [ 2018(1) KHC 574 ] which laid down the principle with respect to the grant of attachment before judgment under Order 38 Rule 5 CPC. The learned Counsel prayed to set aside the impugned order in order to enable the defendant to get release of the bank guarantee furnished as security.

8. On the other hand, the learned counsel for the respondent/plaintiff contended that the very conduct of the defendant itself would justify the order of attachment. Even after the order of attachment, the defendant illegally withdrew the amounts lying in the Bank account, which is under attachment. It would reveal malafide intenti