Property; Smitha Vs. P.C. Varghese [Kerala High Court, 18-11-2015]

Family Law – Civil P.C. 1908 – Order 38 Rule 5 – Suit for Return of Gold Ornaments & Money – Attachment of Immovable Property – the plaintiff needs to establish that the defendant is attempting to remove or dispose of his assets with intention to defeat the decree that may be passed. The power under Rule 5 is a drastic and extraordinary power. Such power should not be exercised mechanically or on mere asking. It should be used sparingly and strictly in accordance with Rule 5. The purpose of Order XXXVIII Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order XXXVIII Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiff by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements under threat of attachment.

Property

Civil P.C. 1908 – Order 38 Rule 9 – Removal of attachment when security furnished or suit dismissed – Necessarily on furnishing the required security, an order of attachment is possibly be lifted. Under the said provision, the court is not empowered to determine the extent of the property required to be kept under attachment or the security required to be furnished in lieu thereof. The provision only says that the court has the power to lift the attachment when the required security is furnished. It is in respect of the property conditionally attached that the security is required to be furnished. The security can either be the property under attachment or anything having equivalent value thereof. Therefore, the extent of the property required to meet the plaint claim is something to be decided by the court prior to the passing of the conditional attachment of the property and it is in respect of that extent that the court is empowered to pass an order under Rule 5 of Order XXXVIII of the Code.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K. ABDUL REHIM, J. & MARY JOSEPH, J.

O.P (FC) No. 493 OF 2015

DATED THIS THE 18 th DAY OF NOVEMBER, 2015

[AGAINST THE ORDER IN IA NO.183/2015 IN OP 22/2015 of FAMILY COURT, THODUPUZHA DATED 11.9.2015]

PETITIONER(S)

SMITHA W/O.SAJU, CHEMPARATHY HOUSE, MUTHALAKODAM, THODUPUZHA VILLAGE.

BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN SRI.VIMAL K.CHARLES SMT.A.T.RENJU

RESPONDENTS(S)

P.C. VARGHESE AND ANOTHER

R1 BY ADV. SRI.V.SETHUNATH

J U D G M E N T

Mary Joseph, J

Challenge in this original petition filed under Article 227 of the Constitution of India is against Exts.P10 & P12 orders passed by the Family court, Thodupuzha in IA No.183/2015 in OP No.22/2015, on 11-09-2015 and on 30-09-2015, respectively. The petitioner herein had instituted OP No.22/2015 before the Family court against the respondents seeking return of money of Rs.20,00,000/- along with interest and also for return of 60 sovereigns of gold ornaments or its value of Rs.12,72,000/-. The petitioner is the wife of the 2nd respondent, their marriage being solemnized on 17-06-2006. It is the case of the petitioner that, after the betrothal ceremony the father of the petitioner had entrusted a sum of Rs.20,00,000/- with the 1 st respondent at the residence of the petitioner, in the presence of friends and relatives of both the families. As agreed upon, 70 sovereigns of gold ornaments were purchased for the marriage of the petitioner from ‘Bhima Jewellery’, Kottayam and those ornaments were worn by the petitioner at the time of the marriage. After the marriage the petitioner was residing in the family of the respondents. During the year 2007, marriage of the younger sister of the 2 nd respondent was fixed. It was decided to give 60 sovereigns of gold ornaments and a sum of Rs.15,00,000/- as her share. For raising funds, the 1 st respondent suggested to utilize the cash and ornaments of the petitioner, on the promise that an extent of 1.99 Acres of land would be transferred into her name. The said property is described in the original petition as A-schedule. The proposal was agreed upon and it was decided to register necessary documents with respect to the transfer of A-schedule property into the name of the petitioner, after the marriage of the sister of the 2nd respondent. Accordingly the petitioner gave 60 sovereigns of gold ornaments to the 1 st respondent. But A-schedule property was not transferred into the name of the petitioner, as promised. The 1 st respondent was not willing to execute necessary documents with respect to plaint A-schedule property, nor was he ready to return the value of 60 sovereigns of gold ornaments or the sum of Rs.20,00,000/-. Therefore the original petition was filed before the court below claiming reliefs as mentioned above.

2. Along with the original petition the petitioner had filed IA No.19/2015 seeking attachment before judgment of the petition schedule property. The court below passed an ad-interim order of conditional attachment, as evidenced from Ext.P3, on 24-01-2015. The 1 st respondent filed a counter affidavit in IA No.19/2015. He has also filed another interim application as IA No.183/2015, seeking withdrawal of the attachment on accepting the security furnished. In the affidavit filed in support of the said application it is mentioned that the 1 st respondent was holding a total extent of 2 Acre 99 Cents of property, out of which 1 Acre was gifted to the 2 nd respondent, who is his son, in the year 2007. It is stated that the wife of the 1 st respondent is undergoing treatment for Cancer and the 1 st respondent himself is a chronic patient undergoing treatment for various diseases since the last so many years. According to the 1 st respondent, since there is no other income to meet the expenses for their treatment to be undergone, he had entered into an agreement with one Sri.V.M.Abbas for sale of 70 Cents of property situated on the northern side of the remaining extent of 1 Acre 99 Cents. On getting information about this, the 2 nd respondent herein had filed a suit as OS No.369/2014 before the Munsiff Court, Thodupuzha, seeking fixation of the boundary between the property gifted to him and the property proposed to be sold to Sri. V.M. Abbas, raising an allegation that the latter property includes a portion of the property gifted to the 2 nd respondent also. In fact, both properties are situated on the northern and southern ends of the family property, which are about 50 feet apart. According to the 1 st respondent the only intention behind institution of such a suit was to restrain him from selling 70 cents of the property from the total extent of property to the above said person. In OS No.369/2014, the properties were surveyed and identified at the instance of the 1 st respondent. The Munsiff’s Court found that the property agreed for sale does not take in any property belonging to the 2 nd respondent. Accordingly the Munsiff’s Court vacated the order of temporary injunction granted to restrain the 1 st respondent from conducting the sale. Having met with such a situation, the 2 nd respondent instigated the petitioner herein to file the original petition before the court below. It is contended that at no stretch of imagination it can be believed that the parents of the petitioner have offered to pay such a hefty amount at the time of her marriage. The claim was frivolous and the above original petition was filed only with an intention to obtain an order of attachment of the entire extent of property, solely to restrain the proposed sale of 70 Cents to Sri.V.M.Abbas. It is contended that money and gold ornaments, if any, if at all given to the petitioner from her family, was only kept by her, and that the claim is totally baseless. In the circumstances it is contended that, lifting of the order of attachment with respect to 70 cents is highly necessary and therefore the 1 st respondent prayed for the same subject to the acceptance of the remaining property under attachment as security.

3. The petitioner had filed detailed objection to IA No.183/2015, contending that sufficient reason is not there for lifting the order of attachment and if the 70 Cents out of the entire extent of property under attachment, is permitted to be sold, the petitioner will be deprived of enjoying the fruits of any decree which may be passed in her favour. The petitioner had also filed IA No.229/2015 seeking direction to the 1 st respondent to produce the alleged agreement for sale executed with Sri. V.M. Abbas. The 1 st respondent had filed counter affidavit in IA No.229/2015 contending that production of the agreement for sale executed with Sri. V.M. Abbas is unwarranted.

4. The court below had considered IA No.183/2015 and vide order passed as Ext.P10 on 11-09-2015 allowed the lifting of attachment with respect to the property having an extent of 70 Cents on the northern extremity of the total area of 1.99 Acres. In the said order, it was observed that the factum of execution of agreement for sale with Sri.V.M.Abbas was admitted by the petitioner herein. It was further observed that the petitioner has no dispute and had consented for sale of an extent of 70 Cents of property on the northern extremity, out of the 1.99 Acres of land. Accordingly, the order was passed vacating the order of attachment in respect of 70 cents of property and to accept the balance extent offered as security to secure the claim of the petitioner.

5. The petitioner sought for review of Ext.P10 order through IA No.358/2015 filed on the premise that she has not consented for lifting of the attachment with respect to 70 cents of property and for its sale. The review petition was allowed by the court below and IA No.183/2015 was considered afresh. The court below passed a revised order as Ext.P12, on 30-09-2015. It is found that the 1 st respondent is in dire need to sell 70 Cents of property out of the total extent of 1.99 Acres and that the balance extent of 1.29 Acres will be sufficient to secure the claim of the petitioner in the original petition. The court below also found that there is no harm in withdrawing the attachment in respect of the 70 Cents of property situated on the northern side of the entire property, in a manner not affecting the enjoyment of the property belonging to the 2 nd respondent. It is found that the 1 st respondent will be at liberty to contract the sale of 70 Cents of property in order to meet the imminent requirement of treatment for himself and his wife. While arriving at such a conclusion the court below had also observed that the claim of the petitioner is not bonafide and valid, as no satisfactory evidence was produced to establish the same. It is discernible from the attendant circumstances that the sale of a portion of the property was necessitated to meet the expenses of the treatment of the 1 st respondent and his wife. The court below found that, 1.29 Acres of property offered by the 1 st respondent is sufficient to satisfy the plaint claim. Aggrieved by the said order of lifting of the attachment with respect to an extent of 70 Cents, the petitioner has approached this Court.

6. It is mainly contended on behalf of the petitioner that the Family Court had failed to consider some crucial and relevant aspects while permitting withdrawal of attachment with respect to a portion of the property. There was no appraisal on the part of the Family Court as to whether the balance extent will be sufficient for securing the plaint claim, if ultimately a decree is passed in favour of the petitioner. It is pointed out that, despite offer of the 1 st respondent to furnish security for the claim raised in the original petition, he has not produced any proof before the court below for substantiating that the remaining extent of 1.29 Acres of property is worth enough to meet ₹32,72,000/-, the claim in the original petition. It is pointed out that the finding that the balance extent of property will suffice to secure the claim was arrived at by the court below without any basis. It is contended that the finding of the court below that the original petition is filed by the petitioner in collusion with the 2 nd respondent, is totally without any basis and unwarranted also. Absolutely, cogent and sufficient materials are not available before the court below to observe that the claim made by the petitioner is not bonafide. It is contended that, the court should not have permitted lifting of the attachment in respect of 70 cents of property so as to enable the first respondent to conduct its sale, especially when the latter failed to produce the alleged agreement for sale despite direction from the court. Absolutely materials are also not forthcoming from the side of the first respondent to substantiate his dire need of money.

7. Refuting contentions of the petitioner, the 1 st respondent had filed a detailed counter affidavit mainly pointing out that, even going by the ‘fair value’ fixed by the Government, the property in question is having a valuation of Rs.1,12,500/- per Are, which corresponds to Rs.45,546.56 per cent. Calculated on that basis, valuation of 1.29 Acres of land would come to Rs.58,75,506.20. A copy of the relevant extract of the Government Notification fixing the ‘fair value’ is produced as Ext.R1 (a). It was also pointed out that, as observed in Exts.P10 & P12 orders, even if the attachment of 70 Cents of land is lifted, there is road access to the remaining property from the eastern side. Therefore the assertion of the petitioner that the remaining property would not have any road access, is refuted. All the contentions raised in the counter affidavit was denied through a reply affidavit filed by the petitioner. Much emphasis was given to the contention that first respondent has thoroughly failed to produce the copy of the alleged agreement for sale in order to substantiate his claim.

8. It is pertinent to note from the observations made by the court below in the impugned order that the petitioner in I.A.No.19/2015 failed to satisfy the court below that the respondent has taken steps to dispose of the whole or any portion of his property with intention to obstruct or delay the execution of the decree that may be passed against him. In this regard it may be relevant to consider the provisions in Rule 5 of Order XXXVIII. Under Sub-rule (1) of Rule 5 the court need to arrive at a satisfaction based on an affidavit or otherwise that the defendant with the intention to obstruct or delay the execution of any decree which may be passed against him is about to dispose of the whole or any part of his property. Under Sub-rule (2) of Rule 5 it is obligatory on the part of the plaintiff to specify the property required to be attached and to show the estimated value thereof. Therefore, the plaintiff, who is seeking attachment before judgment has to state convincingly that he has obtained reliable information about the intention of the defendant to dispose of the whole or any part of the property belonging to him, with a view to obstruct or delay the execution of any decree that may be passed against him. Further it is the duty of the plaintiff to specify the property required to be attached and to show the estimated value thereof. It is from such materials which are to be furnished mandatorily, that the court can arrive at a satisfaction that, the defendant with a view to obstruct or delay the execution of any decree that may be passed, is intending to dispose of the whole or any part of his property. Only upon arriving at such a satisfaction the court can direct the defendant, either to furnish security or to appear and show cause as to why he should not furnish security for such amount as specified. It is only upon such satisfaction and on issuing such show cause notice directing to furnish security, that the court can pass any order of conditional attachment as contemplated under Sub-rule (3) of Rule 5.

9. In the case on hand, specific findings rendered by the court below in the order dated 24.1.2015 conditionally attaching the property are that the petitioner had failed to satisfy the court that the defendant is making any attempt to dispose of his property with intention to obstruct or delay the execution of a decree which may be passed against him. More over, the affidavit filed in support of IA No.19/2015 does not indicate anything about the value of the property sought to be attached. Therefore, it is to be presumed that, while passing the order of ad-interim conditional attachment on 24-01-2015 the court below has not properly applied its mind and has not arrived at any satisfaction as required and contemplated under Sub-rule (1). In this regard, it is pertinent to note that, under Sub-rule (4) of Rule 5 of Order XXXVIII it is provided that, an order of attachment if made without complying with the provisions of Sub-rule (1), such attachment shall be void.

10. A learned Judge of this court had occasion to consider the scope of Sub-rule (4) of Rule 5, in