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IN THE HIGH COURT OF , BENGALURU

DATED THIS ON THE 24 TH DAY OF MARCH 2015

BEFORE

THE HON'BLE MR.JUSTICE H.BILLAPPA

MISCELLANEOUS FIRST APPEAL No.5746/2014 (CPC)

BETWEEN:

Sri.R.Surendra Babu, S/o.V.Ramaiah, Aged about 45 years, Originally R/o.No.49, Village, Krishnarajapuram Hobli, C.V.Raman Nagar, Bengaluru -560 098. …APPELLANT

(By Sri.T.N.Raghupathy, Adv. and Sri.Naveen Reddy M.V, Adv.)

AND:

1. M/s.Shree Yasholakshmi Constructions Ltd., A Company registered under Companies Act 1956, Having its Office at GAT No.335 Sangli-Kolhapur By-pass Road Dharangutti-416 103. Via Jay Singur District, Kolhapur.

Rep. by its Power of Attorney Holder Sri.Subraya.H.Walke, S/o.Harischandra Walke, 2

Aged about 44 years, R/at No.38, Basappa Road, Shanthinagar, Bengaluru -560 027.

2. Sri.V.Ramaiah, S/o.Venkatashamappa, Aged about 77 years.

3. Smt.Muniyamma, W/o.V.Ramaiah, Aged about 75 years.

4. Smt.Premavathi, D/o.V.Ramaiah, Aged about 60 years.

5. Smt.Pushpa, D/o.V.Ramaiah, Aged about 57 years.

6. Smt.Savithramma, D/o.V.Ramaiah, Aged about 55 years.

7. Sri.R.Ashok Kumar, S/o.V.Ramaiah, Aged about 43 years.

8. Sri.R.Jaipal. S/o.V.Ramaiah, Aged about 41 years.

9. Smt.Anasuya, D/o.V.Ramaiah. Aged about 40 years.

Respondent Nos.2 to 9 are R/at No.49, 3

Kaggadasapura Village, Krishnarajapuram Hobli, C.V.Raman Nagar, Bengaluru -560 098.

10. Sri.Faraulla Khan, S/o.Syed Rafiuddin, Aged about 39 years, R/at No.22, Kandaswamy Mudaliar Road, Richards Town, Bengaluru -560 005.

11. Sri.K.Venkatarathnam, S/o.Sri.Krishnama Naidu, Aged about 48 years, R/at No.597, S.S.Temple Street, V.V.Puram, Bengaluru -560 004.

12. Sri.Lakshminarayana Swamy Charities, No.324/12, Thimmaiah Road, Near United News of , Bengaluru -560 052. Rep. by its Chairman.

13. The Commissioner, Bruhat Bengaluru Mahanagara Palike N.R.Square, Bengaluru -560 002.

14. The Assistant Revenue Officer, Bruhat Bengaluru Mahanagara Palike, Vasanthnagar Sub-Division, Thimmaiah Road (Queens Road), Bengaluru -560 001.

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15. The State of Karnataka, By its Chief Secretary to Government, M.S.Building, Dr.Ambedkar Veedhi, Bengaluru -560 001.

16. The Deputy Commissioner, Bengaluru District, Bengaluru -560 001.

17. The Tahsildar, Bengaluru North Taluk, Bengaluru 560 001. ...RESPONDENTS

(By Sri. M B Chandrachud, Adv. for R1 M/s A Krishna Bhat and Associates for R2 & R3 Sri H P Leeladhar, Adv. for R4 to R9 Sri Hanumanthappa B Haravi Gowdar, Adv. for R10 R12 Served Dr R Ravichandran, Adv. for R13-14 Government Adv. for R15 to R17 R11 Notice Dispensed With)

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This Miscellaneous First Appeal is filed Under Order 43 Rule 1(q) of CPC against the order dated 20.08.2014 passed in O.S.No.1985/2013 on the file of the Presiding Officer, Fast Track Court-15, C/C of 16 th Additional City Civil & Sessions Judge, allowing the application filed Under Order 38, Rule 5 of CPC.

This appeal coming on for Admission this day, the Court delivered the following:

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J U D G M E N T

This appeal by the appellant-defendant No.6 is directed against the order dated 20.8.2014 passed by the trial Court in

O.S.No.1985/2013 on I.A. filed under Order 38 Rule 5 of CPC.

2. By the impugned order, the trial Court has allowed

I.A. filed under Order 38 Rule 5 of CPC and suit ‘B’ schedule properties have been attached subject to the condition of providing cash security for the suit claim within a period of 60 days. If the defendants 1 to 9 fail to furnish cash security, the order of attachment be made absolute.

3. Aggrieved by that, the appellant-defendant No.6 has

filed this appeal.

4. Briefly stated facts are; The first respondent-plaintiff

has filed suit in O.S.No.1985/2013 for declaration that the

plaintiff is the absolute owner of the suit ‘A’ schedule property

and for injunction restraining the defendants from interfering

with the peaceful possession and enjoyment of the suit ‘A’

schedule property. In the alternative, the first respondent has 6 prayed to direct the respondents 2 to 9 and the appellant to refund a sum of `.64,72,73,254/- with registration expenses and interest at 12% per annum.

5. The first respondent-plaintiff has filed I.A. under

Order 38 Rule 5 of CPC praying for attachment before judgment in respect of the suit ‘B’ schedule properties. The appellant and respondents 2 to 9 have resisted the application on various grounds. The trial Court by its order dated 20.8.2014 has allowed I.A. and suit ‘B’ schedule properties have been attached and the defendants 1 to 9 have been directed to furnish cash security for the suit claim within 60 days. If the defendants 1 to

9 fail to furnish cash security, then, the order of attachment be made absolute.

6. Aggrieved by that, the appellant has filed this appeal.

7. The learned counsel for the appellant contended that the impugned order is in violation of Order 38 Rules 5 and 6 of

CPC. The first respondent has filed the suit for declaration that it 7 is the owner of the suit schedule property. The appellant and respondents 2 to 9 have agreed for the decree. Therefore, the first respondent cannot have any grievance against the appellant and respondents 2 to 9. If the relief of declaration is granted, then, question of granting alternative relief does not arise.

Therefore, the trial Court was not justified in allowing the I.A. and the impugned order cannot be sustained in law.

8. As against this, the learned counsel for the first respondent submitted that the impugned order does not call for interference. He also submitted that through Sale Deed dated

19.11.2008 the appellant and respondents 2 to 9 have conveyed the suit ‘A’ schedule property for a sale consideration of

`.45,47,02,250/-. When the first respondent applied for transfer of khata, the khata was not transferred on the ground that 3 acres and 29 guntas of land in Sy.No.18 is a Government ‘B’ kharab land and there is a suit pending in O.S.No.4413/2000 between M/s.Lakshminarayana Charitable Trust Vs. BBMP regarding ownership of the property. The property is purchased by some others from one Ramaiah. Apart from this, the writ 8 petitions are pending regarding ownership. Further, CCB police have arrested the benami vendors. Therefore, the first respondent has filed suit for declaration. Alternatively, for recovery of the amount also. As defendants 1 to 9 tried to alienate the property, the first respondent has filed I.A. under

Order 38 Rule 5 of CPC praying for attachment before judgment.

The trial Court taking into consideration that the first respondent will be put to great hardship has passed the impugned order.

The defendants 1 to 9 have been directed to furnish cash security for the suit claim within 60 days, failing which, the order of attachment be made absolute. As the plaintiff has claimed huge amount, the trial Court was justified in passing the impugned order. Therefore, the impugned order does not call for interference.

9. The learned counsel for the respondents 2 and 3 submitted that the suit is for declaration and injunction based on the documents furnished by respondents 2 to 9 and the appellant. The requirement of Order 38 Rule 5 of CPC has not been fulfilled. The first respondent has not furnished any details. 9

The relief under Order 38 Rule 5 is an extraordinary relief.

There is nothing to indicate that the defendants 1 to 9 are intending to sell the properties. The defendants 1 to 9 have established educational institutions. The properties mentioned in

‘B’ schedule are worth nearly 600 crores. The trial Court has not considered the documents produced by the defendants. In fact, the plaintiff i.e., first respondent herein is still due in a sum of

`.7 crores towards sale consideration amount. He also submitted that the first respondent claiming that it is the owner in possession has filed suits in O.S.No.2119/2012 and

O.S.No.3266/2012 for injunction. When the plaintiff is claiming that it is the owner of the suit schedule property and is seeking declaration based on the documents furnished by the defendants

1 to 9, there is no question of claiming any amount from the defendants 1 to 9. The defendants 1 to 9 are not denying the title and possession of the first respondent. In fact, they have agreed for a decree. If the relief of declaration is granted, then, there is no question of granting alternative relief. Without considering all these aspects, the trial Court has granted attachment before judgment which is illegal and cannot be 10 sustained in law. In support of his submission he placed reliance on the following decisions:

(i) AIR 1965 MADRAS 212

(ii) 1982(1) KLJ 24

(iii) AIR 1985 KAR 282

(iv) AIR 1985 MADRAS 269

(v) AIR 2002 BOMBAY 203

(vi) AIR 1992 PH 104

10. The learned counsel for the respondents 4 to 9 submitted that the first respondent is claiming that it is the owner of suit ‘A’ schedule property. The sale deed is of the year

2008. The suit is filed in the year 2013. The defendants 1 to 9 are not disputing the title of the first respondent. The application itself was misconceived. Unless the sale deed is challenged and cancelled, the alternative relief cannot be granted. Therefore, the trial Court was not justified in granting attachment before judgment. The impugned order cannot be sustained in law. He placed reliance on the decision of the

Hon’ble Supreme Court reported in (2008)2 SCC 302. 11

11. The learned counsel for the respondent No.10 submitted that no relief is claimed against respondent No.10.

12. I have carefully considered the submissions made by the learned counsel for the parties.

13. It is relevant to note, the suit in O.S.No.1985/2013 has been filed by the first respondent for declaration that the first respondent is the owner of the suit schedule property and for permanent injunction restraining the defendants from interfering or dispossessing the plaintiff from the suit schedule property. In the alternative, the first respondent has claimed refund of `.64,72,73,254/- with registration charges and interest at 12% per annum. The first respondent has filed I.A. under

Order 38 Rule 5 of CPC praying for attachment before judgment contending that the respondents 2 to 9 and the appellant are trying to alienate the property. The respondents 2 to 9 and the appellant have resisted the application. The trial Court by its order dated 20.8.2014 has allowed I.A. and granted attachment before judgment. Further, the defendants 1to 9 have been directed to furnish cash security for the suit claim within a period 12 of 60 days, failing which, the order of attachment be made absolute.

14. In the affidavit filed in support of the application the first respondent has stated that the defendants 1 to 9 are not trust worthy persons. They have involved in several litigations both civil and criminal before several Courts. They are making attempt to alienate suit ‘B’ schedule properties and to leave the

jurisdiction of the Hon’ble Court. In that event, the plaintiff is not able to enforce the decree passed by the Hon’ble Court. In order to secure the interest of the plaintiff in respect of the alternative prayer, it is just and necessary to grant an order of attachment before judgment in respect of the suit ‘B’ schedule properties. The defendants have converted the land for non- agricultural use and formed the layout. Several buyers are visiting the land in question and negotiating for purchase of the same. The defendants 1 to 9 are hurriedly making attempt to alienate suit ‘B’ schedule properties and leave the jurisdiction of the Court.

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15. The respondents 2 to 9 and the appellant have contended that they are the trustees of Global City Education

Trust. They have established educational institutions in the name of Global City International School. The properties mentioned in the suit ‘B’ schedule are worth about 600 crores.

Some of the properties have been mortgaged to raise loan. The trial Court has not referred to any of the documents produced by the respondents 2 to 9 and the appellant. It has also not considered that the first respondent is claiming the relief of declaration that it is the owner of the suit schedule property based on the documents furnished by respondents 2 to 9 and the appellant. The defendants 1 to 9 i.e., the respondents 2 to 9 and the appellant are not denying the title of the first respondent or possession. In fact, they have conceded for the decree.

When there is no challenge to the sale deed by the first respondent and the first respondent is still claiming title to the property based on the sale deed, the trial Court was not justified in granting attachment before judgment.

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16. It is appropriate to refer to some of the decisions cited.

(i) In AIR 1965 Madras page 212, at para 6, it is observed

as follows:

”The remedy of an attachment before judgment is certainly extraordinary. If granted, it casts an obligation on the party against whom it is made, even before he is heard in defence to the suit. The purpose of the rule is to safeguard the rights of the plaintiff in the event of his getting a decree in his favour and to prevent a fraudulent defendant from defeating the decree. It is clear that the Court has to act with the utmost circumspection and with maximum care and caution before issuing an order of attachment. Otherwise, it would become a weapon of oppression in the hands of unscrupulous plaintiffs.”

Further it is observed as follows at para 8;

“A verbatim copy of the provisions of the Code in the affidavit in support of the application, or a mechanical repetition of the language of the Code without an iota or substratum of truth underlying the allegation would be merely colourable and would constitute an abuse of process of Court. The Court 15

must insist upon strict proof of the said allegations. Any order of the Court without a proper investigation whether the allegations are well founded or not would constitute a gross dereliction of duty.”

(ii) In AIR 1985 KAR page 282, at para 13, it is observed as follows:

“Simple mention of the apprehension is not sufficient to show that the defendant was intending to dispose of the properties with a view to obstruct or delay the execution of a decree that may be passed against him. Simple re-production of the language used in Order 38 Rule 5 of CPC will not meet the requirement of Order 38 Rule 5 of CPC. The affidavit must state the source of information or apprehension. Unless the source is disclosed the Court should not hasten to pass an order under Order 38 Rule 5 of CPC. In this case, the affidavit does not disclose the source of apprehension of the plaintiff. Therefore, the affidavit does not meet the mandatory requirement of Order 38 Rule 5 of CPC. Therefore, the Court below ought not to have passed an order of attachment before judgment”.

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17. Therefore, it is clear that the relief of attachment before judgment is an extraordinary relief. The Court must be satisfied with the requirement of Order 38 Rule 5 of CPC.

18. In the present case, the affidavit lacks details and particulars. It does not meet the requirement of Order 38 Rule 5 of CPC. Apart from this, the suit is for declaration that the first respondent is the owner of the suit schedule property and for permanent injunction restraining the defendants from interfering or dispossessing from the suit schedule property. The defendants

1 to 9 i.e., the appellant and the respondents 2 to 9 are not disputing the title of the respondent No.1. They contend that they have filed suit for recovery of balance sale consideration amount. In the circumstances, the trial Court was not justified in granting attachment before judgment. Therefore, the impugned order cannot be sustainable in law.

Accordingly, the appeal is allowed. The impugned order passed by the trial Court on I.A. under Order 38 Rule 5 of CPC is hereby set aside. Office is directed to send back the records 17 forthwith. It is needless to say that the trial Court shall expedite the matter.

Sd/- JUDGE

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