Malay Kumar Basu, J. - (1.) This revisional application under Section 115 of the Civil Procedure Code is directed against an order dated 6th December, 2000 passed in M.S. No. 22 of 2000 by the learned Civil Judge (Sr. Division), 10th Court, Alipore under which he allowed interim attachment before judgment of the suit property as described in Schedule-A of the petition. The relevant facts leading to the present revision may be summarised as follows:- The opposite party as the plaintiff filed the M.S. No. 22 of 2000 before the Court below alleging that they had been appointed as distributors for various lubricants of the E.L.F. Lubricants India Ltd. (the present petitioner) and by virtue of arrangement between them they used to carry out distribution of various products of the said defendant, but, suddenly, in the first week of October 1999, the defendant without giving any notice of termination disallowed the plaintiff to lift the products from their depot and on being contacted they refused to divulge any reason for such illegal termination. Thereafter, under such circumstances, the plaintiff was constrained to submit before them a statement of the expenses amounting to more than Rs. 10,00,000/- and claimed the amount but the defendant did not make any payment thereof. Thereafter, on 10th January, 2000, the plaintiff received a letter from them to the effect that only a sum of Rs. 76,000/- and odd was payable by the defendant to the plaintiff towards full and final statement of the accounts and of the dues. Thereafter, the plaintiff filed this Money Suit for realising his dues from the defendant amounting to about Rs. 26,93,000/- and odd. They also filed a petition under Order 38 Rule 5 of the Civil Procedure Code in order to get the suit properties as described in Schedule-A of the plaint attached before judgment and the Court below after hearing the plaintiff's learned Advocate and considering the documents filed by him was pleased to direct the defendant to show-cause why the same would not be allowed and pending its hearing it granted ad interim attachment of the property before judgment.
(2.) Being aggrieved by this order of the Court below the defendant (the present petitioner) has filed this revisional application challenging the impugned order as illegal and erroneous and also improper and liable to be set aside.
(3.) Mr. Chatterjee, learned Advocate appearing for the petitioner has drawn my attention to the provision of the Order 38 Rule 5(1) of the Civil Procedure Code wherein it has been provided that where the Court is satisfied by affidavit or otherwise that the defendant with intention to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant within a time to be fixed by it either to furnish security in such sum as may be specified to produce and place at the disposal of the Court, when required, the said property or value of the same or such portion thereof as may be sufficient to satisfy the decree or to appear and show-cause why he has not furnished security. Mr. Chatterjee then further attracts my notice to the provisions of Clause (4) which lays down that if an order of attachment is made without complying with the provision of sub-rule (1) of this rule, such attachment shall be void. According to Mr. Chatterjee, the joint reading of these two clauses of Rule 5ORDER38 enjoins that the Court must record its satisfaction about the fulfilment of the precondition namely, that the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court and that these mandatory provisions of this rule have been manifestly violated in the present case and the interim order of attachment has been passed by the Court without being satisfied as to the fulfilment of this condition and order on that score alone is liable to be set aside. In support of his contention Mr. Chatterjee has relied upon a number of judgments of different High Courts. In AIR 1951 Calcutta 156, Premiraj Mundra v. Md. Maneck Gazi & Ors., a Single Bench of this Court has held that where an application is made for an order in favour of the plaintiff under Order 38 Rules 5 and 6, it must be ascertained by the Court that in the circumstance of the case and while relying on the facts of the respective purchaser that the plaintiff had made out a case for the order asked for in respect of his allegations that the intention of the defendant was to obstruct and delay the execution of any decree that may be passed against him in that suit. The next judgment which Mr. Chatterjee refers to is reported in 99 CWN page 1, Boeing Company v. R.M. Investment and Trading Co. Pvt. Ltd. In this case, a Division Bench of this Court observed that the concept of attachment was different from that of injunction and the Civil Procedure Code had provided two different sets of provisions for the two and for an attachment to be granted the plaintiff must show a good and arguable cause on the merits of the claim and there must be grounds for believing that the defendant had assets within the jurisdiction and that there is danger of the assets being tampered with. The last ruling that is cited by Mr. Chatterjee is reported in AIR 1989 Andhra Pradesh 214, The Nillimarla Jute Mills Co. Ltd. v. Sree Mahaveer Rice and Oil Mills. Here a Single Bench of that Court has held that it is not competent for the Court to issue an interim order of attachment without observing formalities which are mandatory in nature as laid down under sub-rule (1) of Rule 5 Order 38 Civil Procedure Code and an ex parte order of attachment can be made either resorting to the provision of sub-rule (1) of Rule 5 or sub-rule (3) of Rule 5 and it must expressly be stated in the order as to under which of rules the Court was proceeding. In this judgment, the Court formulated the principles under which such an interim relief could be granted and it was emphatically enjoined that the Court was to be satisfied on the materials furnished that the defendant obstructed or delayed the execution of any decree that might be passed against him to dispose of the whole or any part of his property from the local limits of the jurisdiction and then only the Court might direct the defendant within a particular time to furnish security etc. So, to adopt any of the courses provided thereunder the Court must exercise its mind and on being satisfied that the materials placed before him show that the defendant is about to dispose. of the whole or any part of his properties it would pass the order of attachment of this nature.;