- (1.) Heard learned counsel for the parties.
(2.) The defendant -petitioners have filed this civil writ petition under Article 226 readwith Article 227 of the Constitution of India against the order dated 3.10.2009 passed by the Additional District Judge No.5, Jaipur City, Jaipur in Civil Misc. Case No.03/2009 whereby the learned trial Court allowed the application under Order 38 Rule 5 CPC filed by the plaintiff -respondent and ordered the petitioners to furnish a bank guarantee of Rs.11,11,495/ - within a period of one month from the date of the said order. It was further ordered that in case the petitioners fail to comply this order, the property in dispute shall be attached.
(3.) Brief relevant facts for the disposal of this petition are that the plaintiff -respondent filed a suit for recovery of Rs.11,11,4951/ - with interest @ 12% per annum as damages from the defendant -petitioners on the premise that the machines and other equipments established upon the petrol pump (retail out let) on the land of the petitioners have been unauthorisedly removed by them and as a result thereof the respondent has also suffered loss of business. Alongwith the plaint, application under Order 38 Rule 5 CPC was filed with the averment that a decree for Rs.83,17,047/ - with interest @ 12% per annum has been passed against the petitioner -Shri Phool Chand Sarawgi in favour of one Shri Pradeep Kumar Jain and the petitioner has failed to make payment of the aforesaid amount and as a result thereof attachment warrant has been issued against him. It was further averred that several recoveries are pending against petitioner -Shri Phool Chand and he is going to dispose of his properties situated at Jaipur, which fact has further been shown by the fact that a Board of a Builder Unique Dream Builders has been put on the land on which the petrol pump is situated. It was averred that all these facts indicate that the petitioner has already disposed of his properties or he intends to do so. It was further averred that if an order for attachment before judgment is not passed in favour of the plaintiff -respondent, the decree likely to be passed in the suit may remain unsatisfied. The petitioners filed reply to the application and apart from other, it was averred that the machinery and equipments established by the plaintiff on the land of the petrol pump were removed and placed in the office of the plaintiff after serving notice upon it. It was further alleged that the petitioner has entered into compromise with Shri Pradeep Kumar Jain and the entire amount has been paid to him. It was also averred that the petitioners have neither disposed of any of their properties nor they intend to do so. It was also averred that the land upon which the petrol pump was established infact belongs to M/s Padma Finlease Company Pvt. Ltd, which was leased by it to petitioners, who further leased it to the plaintiff -company. It was also pleaded that alongwith the application even affidavit has not been filed.;