An order of attachment before judgment can only be issued if the court is satisfied that the defendant is about to dispose of or remove its property with the intent to obstruct or delay the execution of any decree that may be passed against it.

( 1 ) THIS appeal was filed against order No. 8, dated May 3, 2003 and no. 11, dated May 26, 2003 passed by trial court in the suit itself.

( 2 ) HEARD Mr. Dasgupta, learned counsel for the appellant and Mr. Bhaskar Gupta, learned counsel for the respondent.

( 3 ) RELEVANT facts are that opposite petitioner is a company formed under the laws of Malaysia and is basically a foreign company which obtained all requisites licenses and acquired a registered office in India at new Delhi and obtained necessary permissions for marketing of work in India. The petitioner company obtained the work of construction of a portion of National highway No. 6 for widening of the existing road to 4/6 lanes and strengthening of existing two lanes carriage way thereof. Necessary agreement for the said purpose was signed between the appellant company and National Highway Authority of India on 20th april, 2001.

( 4 ) ON being approached by the plaintiff respondent submitting a quotation, some work was entrusted to the respondent. According to the appellant after the work of the plaintiff respondent was completed, joint measurement was taken and bill was ultimately finalised whereafter the plaintiff rspondent signed the said final bill on March 20, 2002 recording that they did not have any further claim against appellant company under the said sub contract. Full and final payment was made against the said final bill and necessary payment certificate was also issued by the plaintiff respondent in March, 2002.

( 5 ) AFTER one year of such payment, the plaintiff-respondent filed the present suit against the appellant company, inter-alia, praying for adjudging the final accounts statement/no claim certificate as void or voidable, payment voucher to be adjudged void or voidable and perpetual injunction as also a decree for Rs. 1,63,68,027. 00 with other necessary prayers.

( 6 ) IN the said application, an application was filed for attachment before judgment under Order 38, Rule 5 of the Code of civil Procedure. The orders impugned in the present appeal were passed on the said application allowing the ad-interim prayer in the application for attachment before judgment in respect of bill claim amounting to rs. 1,63,68,027. 00.

( 7 ) IT is the contention of the learned counsel for the appellant that a perusal of the order sheet including order No. 1 to order No. 10, shows that requirements of the said Rule 6 under Order 38 of the Code have not at all been satisfied and therefore, the impugned orders cannot stand.

( 8 ) MR. Dasgupta, appearing for the appellant contended that the final statement of the bill was accepted as final in March, 2002 and in a suit filed one year thereafter, on the application, merely as the defendant did not appear, order was passed by the trial court granting attachment before judgment without satisfying the prescribed requiremerits under Rule 5 of Order 38. It is further contended ad interim order was refused by the same learned Judge on March 28, 2003 on the ground that the proceeding was initiated at a delayed stage but ad interim order was passed thereafter on May 3, 2003 without considering whether the requirements at all were (complied) as provided in rule 5. The notice of the Court was drawn to the provisions of sub-rule (4) of Rule 5 for contending that the impugned orders are void orders. Reliance was placed on the judgment in the case of Premraj Mundra v. Md. Maneck Gazi, reported in AIR 1951 Cal 156 and Smt. Swaran Lata Ghosh v. Harendra kumar Banerjee, reported in AIR 1969 SC 1167, for contending that order was passed without any reason is held to be void.

( 9 ) MR. Bhaskar Gupta, appearing for the respondent contended that the impugned order is only being an ad interim order and therefore scope of challenge in the present appeal is very limited. It is strongly contended that appellant being a foreign company attachment was vitally required as once they realise the bill from the Nati