28 Jun 2021 1:25 AM GMT
The Calcutta High Court vide order dated 22.6.21 explained in detail the distinction in the nature of relief between a 'temporary injunction' under Order XXXIX Rule 1 and an order for 'attachment before judgment' under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908 (CPC). Justice Moushumi Bhattacharya observed that while both provisions aim to protect the petitioner by preserving...
The Calcutta High Court vide order dated 22.6.21 explained in detail the distinction in the nature of relief between a 'temporary injunction' under Order XXXIX Rule 1 and an order for 'attachment before judgment' under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908 (CPC). Justice Moushumi Bhattacharya observed that while both provisions aim to protect the petitioner by preserving the disputed property, their applicability differs when it comes to the nature of property and the stage of proceedings in question.
In the concerned case, the petitioner had advanced an amount of Rs. 7.5 crores to the respondent as loan pursuant to requests made for such by the respondent at an agreed rate of interest of 15% per annum. However consequently the respondent had refused to acknowledge such a debt in its entirety giving rise to the present dispute. Accordingly, the petitioner prayed for relief in the nature of a temporary injunction.
The counsel for the respondent submitted that the present application was in the nature of an application for attachment under Order XXXVIII Rule 5 of the CPC and as such should not be allowed until an opportunity has been extended to the respondent to file his affidavit. The counsel further argued that no case has been made out by the petitioner to seek the disposal of the whole or any part of the property or to remove the property from the local limits jurisdiction of the Court, as contemplated under Order XXXVIII Rule 5 of the CPC.
Addressing the claims of the respondent, the Court observed that in the concerned case the petitioner did not seek a relief in the nature of an order for 'attachment before judgement as envisaged' under Order XXXVIII Rule 5 of the CPC. Instead, the petitioner only prayed for a 'temporary injunction' under Order XXXIX Rule 1 of the CPC in order to prevent the alienation of the disputed property or any injury caused to the petitioner by the respondent.
The Court further ruled that from the perusal of the record, there exists an acknowledgement of debt by the respondent.
"The documents would also show that the respondent made certain payments to the petitioner in relation to which TDS was deposited by the respondent. The aforesaid facts would therefore beg the question: Why would the respondent make payments to the petitioner and claim deductions against such payments, if there is no transaction at all between the parties? The undeniable conclusion would be that the TDS Certificates amount to an acknowledgement of debt on the part of the respondent in relation to monies advanced by the petitioner", the Court noted.
Distinction between "temporary injunction" and "attachment before judgment" under the CPC:
After examining the rival contentions, the Court proceeded to elucidate the distinction between a "temporary injunction" as envisaged under Order XXXIX Rule 1 and an "attachment before judgement" under Order XXXVIII Rule 5. Under Order XXXIX Rule 1 a temporary relief is granted to the petitioner in the event that an imminent risk to the property in dispute in the suit is caused by the acts of the respondent. As a result in a bid to preserve the disputed property, the Court can pass any order as it deems fit in the nature of a temporary injunction.
Whereas Order XXXVIII Rule 5 applies only at a later stage in a suit when the petitioner seeks to execute a decree. This section applies only in respect of orders which lend finality to the suit and aims at preserving the state of affairs after the interim stage in the suit is completed.
Further clarifying the difference in the "nature of property" contemplated in the aforementioned sections, the Court observed,
"Under Order XXXIX Rule 1, the property sought to be preserved is 'property in dispute in a suit', whereas, it is the respondent's property under Order XXXVIII Rule 5 - the words used are 'his property' following specific reference to '…the respondent, with intent to obstruct or delay..'. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter. Although, the terms 'order' and 'decree' can be interchangeably used depending on the nature of the application, the thrust of the two provisions, read together, is saving the suit property till the right of the petitioner is established to proceed with the suit and to save the petitioner from the decree – or the possibility thereof – being frustrated once the suit nears culmination."
Thus the Court ruled that relief under Order XXXVIII Rule 5 shall not be applicable in the present stage of proceedings since the petitioner only seeks protection from its monetary claim against the respondent being rendered infructuous and does not seek an order of attachment of the assets of the respondent.
Observing that the petitioner had established a 'prima facie' case and that 'irreplaceable injury' would be caused to the petitioner in the absence of any intervention, the Court passed an order of temporary interjection in favour of the petitioner.
"Having found that the petitioner has made out a satisfactory case under Order XXXIX Rule 1 of The Code of Civil Procedure, there shall be an order restraining the respondent from dealing with or disposing of, alienating or encumbering any of his immovable assets and properties without leave of the Court until the matter is finally heard out on affidavits or until further orders are passed at the instance of any of the parties before the Court", the order read.
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