HIGH COURT OF ANDHRA PRADESH

* * * *

CIVIL MISCELLANEOUS APPEAL No. 698 of 2024

Between:

Mohammed Vasee

.....APPELLANT

AND

M/s.Alakananda Townships Pvt. Ltd.

Rep.by its M.D.Vasupalli Rajashekar

Visakhapatnam

.....RESPONDENT

DATE OF JUDGMENT PRONOUNCED: 09.07.2025

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

_______________________

CHALLA GUNARANJAN, J

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CMA No. 698 of 2024

2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN

+ CIVIL MISCELLANEOUS APPEAL No. 698 of 2024

% 09.07.2025

Between:

Mohammed Vasee

.....APPELLANT

AND

M/s.Alakananda Townships Pvt. Ltd.

Rep.by its M.D.Vasupalli Rajashekar

Visakhapatnam

.....RESPONDENT

! Counsel for the Appellant : Sri M. R. S. Srinivas

Counsel for the Respondent : Sri V. V. Saketh Roy

< Gist :

> Head Note:

? Cases Referred:

1. 2023 (2) ALD 47 (AP)

2. (2008) 2 SCC 302

3. 2003 SCC OnLine Cal 320

4. 2009 SCC OnLine AP 708

5. 1951 SCC OnLine Cal 20

6. 2024 SCC OnLine SC 3538

7. (1992) 1 SCC 719

8. (2024) 7 SCC 183

9. 1990 Supp SCC 727

10. (1960) SCC OnLine SC 62

11. (2013) 9 SCC 221

RNT, J & CGR, J

CMA No. 698 of 2024

3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON’BL SRI JUSTICE CHALLA GUNARANJAN

CIVIL MISCELLANEOUS APPEAL No. 698 of 2024

JUDGMENT: (per Hon’ble Sri Justice Ravi Nath Tilhari)

Heard Sri M. R. S. Srinivas, learned counsel for the Appellant and Sri V.

V. Saketh Roy, learned senior counsel for the Respondent.

2. The present appeal under Order 43 Rule 1 of Code of Civil Procedure

(CPC) has been filed by the appellant/defendant in Commercial Original Suit (in

short ‘COS’) No.14 of 2023, pending in the Court of the Special Judge for trail

and disposal of Commercial Disputes, Visakhapatnam (in short ‘Special Court’),

being aggrieved from the Order dated 09.08.2024 passed in I.A.No.458 of

2023, whereby

inter alia the attachment of the petition schedule land effected

vide earlier Order dated 10.11.2023 in the said COS has been made absolute,

also granting liberty to the defendant to seek modification of the attachment

according to law, and providing that, which, if sought would be decided on its

own merits.

I

. FACTS:

i) Plaintiff’s case:

3. The COS was filed by the plaintiff/respondent for recovery of amount

of Rs.3,19,75,543/- (Rupees three crore nineteen lakh seventy five thousand

five hundred and forty three only) said to be due and payable by the defendant

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CMA No. 698 of 2024

4

on the strength of a Memorandum of Understanding (in short ‘MOU’) dated

05.11.2020 and a consequent default thereof on its part.

4. The plaintiff/respondent’s case, stated briefly, was that the plaintiff

was a Company incorporated under the provisions of the Indian Companies Act,

engaged in the business of real estate, construction, and other allied activities.

In the course of its business, the plaintiff developed the property by purchasing

lands and also entered into development agreements for developing lands into

layouts by obtaining necessary permissions, creating infrastructure etc., on a

profit sharing/project sharing basis. The plaintiff had also undertaken

construction of residential houses/apartments/villas depending on the

agreements with landowners, and apart from development of layouts, the

plaintiff also undertook marketing and selling of properties developed by the

third parties for profit. In pursuance of such business, the defendant who was

the absolute owner of total extent of Ac.10.12½ cents situated in Kukalametta

Lakshmipuram village, Vizianagaram district, had offered to get the project

marketed by the plaintiff. The defendant had acquired the said property under

various valid deeds of conveyance and the defendant had offered to develop

the same into a residential community consisting of 200 duplex houses (villas)

to be built by the defendant himself and to be marketed by the plaintiff.

Accordingly, the parties entered into a Memorandum of Understanding dated

05.11.2020 under which they

inter alia agreed to the following terms; (i) That

the defendant shall obtain necessary permits and sanctions from all the

authorities concerned by paying necessary fees/charges; (ii) To obtain the

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necessary plans at the cost of the defendant from VMRDA/Local Panchayat. (iii)

To construct 200 Duplex Houses in an area of 150 Sq.yards each. (iv) To create

black top roads, drainages, lighting etc.

5. The plaintiff’s further case was that in pursuance of the MOU on

construction of the said houses, it had been agreed upon that the defendant

shall be paid a sum of Rs.50,00,000/- towards refundable advance and in

addition, a sum of Rs.56,99,999/- for each of the Villas built by the defendant

and marketed by the plaintiff. The plaintiff was at liberty to sell each of the

Villas at a price of its choice. It was also agreed that the defendant shall

proceed with the construction of the Villas as per the plans approved and

periodically the plaintiff shall be entitled to market the said units at a price of its

choice, but pay Rs.56,99,999/- per each unit to the defendant. The plaintiff

was thus engaged by the defendant as a marketing agent for the purposes of

marketing and promoting the project being developed by the defendant and the

price of each unit as fixed under the MOU.

6. The plaintiff’s further case was that in pursuance of the MOU, the

plaintiff had paid a sum of Rs.50,00,000/- under ten cheques bearing

Nos.160115 to 160124, drawn on State Bank of India, Visakhapatnam in

November 2020 itself and the defendant had realized the said amount. The

defendant constructed some Villas and the plaintiff started marketing the same.

The plaintiff had sold 22 Villas in total and midway the defendant unilaterally

increased the price of each Villa to Rs.65,00,000/-, and in view of such act, the

plaintiff lost all its business opportunities and sustained substantial loss. The

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CMA No. 698 of 2024

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defendant also mismanaged the accounts and operations of the venture which

caused difficulties to the defendant in the conduct of business. The plaintiff’s

further case was that out of 22 Villas that were booked by the plaintiff, the

defendant had registered the deeds of conveyance for three of the Villas which

were under construction and in respect of the remaining 19 Villas, the

defendant started creating troubles due to his unilateral increase in price from

Rs.56,99,999/- to Rs.65,00,000/-. The construction process being undertaken

by the defendant was going at a slow pace and also because of confusions

regarding the price created by the defendant, the intending purchasers who

had booked the units by paying advances had cancelled their bookings and

demanded the advance amount paid. The plaintiff pleaded that the plaintiff

regularly remitted the advance amounts collected from third party purchasers to

the defendant under his acknowledgment. He furnished a list of such payments

made to the defendant, in the plaint and submitted that the defendant failed to

adhere to the norms pertaining to the construction of residential villas and did

not follow the procedure in forming the infrastructure including roads, open

spaces etc., and also did not comply with the statutory provisions with the

change of land use, permissions for construction of regular flats, and also failed

to obtain approval of the layout which hindered for promotion and sale of the

Villas, resulting into the prospective purchasers backed out and those who had

already paid advances refused to pay amounts and started demanding for

refund. The plaintiff submitted that he had paid to the defendant an amount of

Rs.50,00,000/- as refundable advance as per the MOU dated 05.11.2020 and in

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addition Rs.1,86,70,352/- as periodical advances, and further incurred

marketing expenses to the tune of Rs.10,44,987/- for various purposes of

marketing. He further submitted that the Managing Director of the plaintiff was

consistently coordinating with the defendant for the purpose of resolving the

disputes and to release the amounts due had also offered reasonable discounts

in the event of the defendant settling the claims of the plaintiffs before

approaching the Court of law, but the defendant had been avoiding the plaintiff

and he had also started a separate brochure printed in his name, and instead of

selling constructed villas as proposed under MOU, he started selling away the

property in the form of vacant house plots. Consequently, the suit was filed for

recovery of an amount of Rs.3,19,75,543/- with interest at the rate of 12% per

annum from the date of the respective transactions till the date of recovery; for

costs of the suit and for other ancillary reliefs.

ii) Defendant/Appellant’s case:

7. The defendant/appellant filed written statement, and

inter alia, denied

the material allegations in the plaint. The defendant submitted that the suit

agreement titled as MOU was not binding between the parties as it was an

agreement for marketing and the terms of MOU could be invoked only when

the plaintiff company paid initial booked amounts so as to confirm to go ahead

with the construction of the Villas. The defendant was the sole proprietary on

the land and had control over the construction activity. The plaintiff had

offered to sell the entire project within a span of three months and the

defendant had fallen to guile of the plaintiff and made huge investment in

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CMA No. 698 of 2024

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constructions and construction related works, making the plots suitable for

construction of the houses. The plaintiff failed to bring forth the assured

business as promised. The defendant had communicated to the plaintiff that

the MOU stood dissolved with effect from 31.05.2022. The defendant pleaded

that in the presence of local elders and political leads, who had acted as

arbitrators, on their advise the MOU was dissolved on mutual agreement in

good faith orally, and consequent on such agreement for ending the MOU the

defendant refunded the bookings as detailed in the written statement. The

defendant pleaded that the refundable deposit of Rs.50,00,000/- which the

plaintiff had paid to the defendant had been refunded to the plaintiff by way of

adjustment made in registration of three villas in plot Nos.26, 67 and 74, to the

extent of Rs.45,00,000/- and the rest amount of Rs.5,00,000/- was also

adjusted in the manner as stated in the table drawn in the written statement.

The defendant’s case was that the refundable deposit had been completely

closed. The defendant also gave a tabular description of the refundable

advance and had also given a table submitting that the advance amount for 19

bookings had been refunded to source. He submitted that the defendant had

fulfilled his liabilities of his terminated MOU, and the relief sought for the refund

of the advance amount paid to the defendant was not maintainable as the said

amount had already been refunded by way of adjustme nts etc. The

expenditure claimed by the plaintiff’s company for Rs.10,44,987/- was also

denied. The suit claim was said to be without any basis. The defendant also

raised the plea of jurisdiction, limitation and that the MOU being unregistered

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CMA No. 698 of 2024

9

was hit by Section 17 of the Registration Act. The suit was also said to be

undervalued. The claim of interest was also contested,

inter alia, on the ground

that the suit agreement did not provide for payment of any interest.

iii) I.A.No.458 of 2023 U/Or.38 Rule 5 CPC:

8. In the COS, the plaintiff filed I.A.No.458 of 2023 under Order 38 Rule

5 CPC for attachment of the schedule land appended to the said I.A. on the

same pleadings as in plaint. The plaintiff re-stated that for the purpose of

resolving the dispute between the plaintiff and the defendant, the plaintiff

offered reasonable discounts in the event of the defendant settling the claims

but instead of promising a resolution, the defendant avoided the same and got

separate brochure printed in his name and instead of constructing villas, sold

away the properties in the form of vacant house plots, and in view thereof,

there was compelling urgency for the plaintiff for seeking urgent interim

remedies, failing which the defendant would get the property encumbered or

alienated and thereby making a probable decree in favour of the plaintiff

incapable of being executed. He prayed for attachment of the plaint schedule

property and for direction to the defendant to furnish the security for the

amount of claim in the suit until disposal of the suit.

iv) Objections:

9. The defendant/appellant filed counter to I.A.No.458 of 2023. The

stand as taken in the written statement was reiterated and the application was

said to be not maintainable and liable to be dismissed.

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CMA No. 698 of 2024

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v) Rejoinder:

10. The plaintiff/respondent filed rejoinder affidavit and denied that the

MOU was dissolved. It was submitted that the plaintiff never recovered the

refundable advance of Rs.50,00,000/-. The amount of Rs.45,00,000/- which

was said to have been adjusted by the defendant towards refundable advance

was said to be the profit generated by the plaintiff by the successful sale of

three villas.

II. Order of learned Special Court:

11. The learned Special Court framed the following point for

consideration;

“

Whether attachment before judgment can be ordered or not ?”

12. The learned Special Court held that the partie s filed certain

documents including vouchers/receipts etc., in support of their respective

contentions. The plaintiff’s contention was that he was entitled for recovery of

the amount claimed in the suit and the defendant’s case was of denial by taking

pleas,

inter alia, that the refundable advance amount was refunded by way of

adjustments and there was no provision for payment of interest under the

MOU, as also that the amount as claimed towards alleged expenditure incurred

by the plaintiff was not payable. The learned Special Judge recorded the

finding that, the plaintiff had accounted for most of the documents relating to

the payments received/paid/remitted/refunded and thus, had a

prima facie

claim towards the refundable advance and the amounts remitted to the

defendant. With respect to the claim for interest, the learned Special Court

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CMA No. 698 of 2024

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observed that it was a mixed question of fact and law to be dealt with after trial

in the suit and whether MOU was cancelled or such c ancellation was

permissible, or the validity and bindingness of the MOU and its breach or

otherwise and if so, by which party, plaintiff or defendant, were all matters to

be decided later on i.e., in trial. With respect to the claim for expenditure of

Rs.10,44,987/- also, the learned Special Court observed that it could only be

adjudicated in the trial.

13. The learned Special Court recorded that it was satisfied that there

was

prima facie case in favour of the plaintiff that he had claims against the

defendant and of the specified value and as the property was situated within

the territorial jurisdiction of the learned Special Court, it had the jurisdiction.

The learned Special Court also recorded that at this stage the plaintiff’s

contention that the defendant got a separate brochure in his own name and

started selling vacant plots and instead of constructing and selling Villas as per

MOU, was supported by the affidavit of the third party that the defendant had

been printing brochures in his name without mentioning the name of the

plaintiff and had been attempting to alienate parts of 10½ acres in the form of

vacant plots. It found force in the case of the plaintiff that if the defendant was

successful in selling the entire 10½ acres of land, the decree that might be

passed in the COS for the suit subject may remain as a paper decree.

14. So, considered, the learned Special Court allowed I.A.No.458 of 2023

vide Order dated 09.08.2024.

15. Challenging the aforesaid Order, the present appeal has been filed.

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CMA No. 698 of 2024

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16. From the judgment under challenge in appeal, it is evident that the

defendant was directed earlier vide Order dated 10.11.2023 to furnish security

for the suit claim nearly Rs.3,20,00,000/-, but he did not furnish any security.

So, the attachment of the petition schedule land (2½ acres) was effected. By

the Order under challenge the attachment was made absolute with liberty to

the defendant to seek modification of the attachment, accordingly, providing

further that if such modification was sought as per law, the application would

be decided on merits.

III. Affidavits in this Appeal:

17. In the present appeal, the plaintiff/respondent filed the counter

affidavit to bring on record the Order of the learned Special Court dated

10.11.2023 directing the defendant to furnish security in an amount of

Rs.3,20,00,000/- within a period of three weeks from the date of service of that

Order, providing that failing which, the petition schedule 2½ acres land shall be

attached, in accordance with law. He has also brought on record the copy of

the brochure printed by the defendant/appellant in his only name, without

plaintiff’s name to show that the defendant was making effort to sell the

properties of his own in violation of MOU, so, there was a threat of alienation of

the petition schedule property.

18. Memo of calculations dated 24.07.2024 which wa s filed by the

plaintiff/respondent before the learned Special Court has also been brought on

record along with the counter affidavit. The memo of calculations, contained

the calculation table-1 which lists the total booking amounts received from the

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CMA No. 698 of 2024

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parties, total amounts returned along with the documents filed by the

petitioner/plaintiff. It also contained calculation table-2 which lists all the

amounts paid to the defendant as periodical advance along with the mode of

transactions and relevant documents as filed by the petitioner/plaintiff.

19. At this stage, it may be mentioned that considering that the parties

had filed many documents, including vouchers, receipts etc., in respect of their

respective contentions, the learned Special Court required a co-relation

statement of the amounts received/paid/remitted/refunded vis-à-vis those

documents and the pleadings. The plaintiff filed two such statements, i.e.,

calculation table-1 and calculation table-2 along with the memo dated

24.07.2024, which as stated above, has been brought on record in the present

appeal along with the counter affidavit.

20. As per the calculation tables, the following was stated:

Calculation Tables – 1 & 2 are as under:-

CALCULATION TABLE – 1

1 2 3 4 5 6 7

Sl.

No.

Date of

Booking

CUSTOMER

NAME

TOTAL

BOOKING

AMOUNTS

Amounts

Received

by

Defendant

(Rs.)

Documents

showing Receipt

by Waris

Amounts

received

by

Plaintiff

(Rs.)

1 4.02.21 K. Nava Jyothi 600000 600000 Doc.14

2 4.02.21 E. Janaki

Ramayya

616059 616059 Doc.9

3 4.02.21 E. Janaki

Ramayya

616059 616059 Doc.10

4 4.02.21 E. Janaki

Ramayya

616059 616059 Doc.15

5 4.02.21 E. Janaki

Ramayya

616059 616059 Dco.16

6 8.02.21 CH. Srinivasarao 416750 416750 Doc.17

7 8.02.21 CH. Srinivasarao 416750 416750 Doc.17

8 8.02.21 CH. Srinivasarao 416750 416750 Doc.17

9 8.02.21 CH. Srinivasarao 416750 416750 Doc.17

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10 24.01.21 M. Sarita / M.

Kiran Kumar

501116 501116 Docs.12, 18 & 22

11 10.05.21 B. Srinivas / K.

Sanyasi Rao

500000 500000

12 31.07.21 M. Anjani Kumar 1000000 500000 Docs.25&26 500000

13 22.08.21 Jogimahanthi

Venkatesh

1000000 500000 Doc.36 500000

14 17.08.21 K. Naresh 500000 500000

15 28.08.21 P. Kanaka Rao 500000 500000

16 28.08.21 R. Dharma Rao 505000 500000 Doc.8 5000

17 10.09.21 Ch. Jaya Lakshmi 500000 500000

18 27.10.21 K. Srinivas

Tagore

550000 500000 Doc.35 50000

19 18.01.22 Sattupalli

Lalitabhai

500000 500000

20 31.01.2021 Sathivada

Dhilliswari

1630000 1630000 Docs.5,27,28,30,31

& 39

21 11.08.21 Akula Lalitha 1500000 1500000 Docs.4, 23 & 24

22 10.09.21 Davala Raju 1500000 1500000 Docs.7 & 29

23 Total Collection = 15417352 Total Amt.

received by

Plaintiff =

3555000

24 Total

Amt.received by

Defendant =

11862352

25 Periodical

Advances =

6808000

26 MOU Advance = 5000000

27 Marketing

Expenses =

10,44,987

28 Interest As on 06-

10-23

72,60,204

29 Total Claim Amt.

as per suit =

3,19,75,543

Table continue…..

CALCULATION TABLE – 1 (contd….)

8 9 10 11 12

AMOUNTS

RETURN

DATE

Amounts

Returned by

Amounts Returned by

Plaintiff (Rs.)

Doc.No.3 series Amounts

Returned by

Defendant (Rs.)

22.03.22 PLAINTIFF 600000 3U

13.04.22 PLAINTIFF 616059 3N

13.04.22 PLAINTIFF 616059 3M

13.04.22 PLAINTIFF 616059 3P

13.04.22 PLAINTIFF 616059 3O

22.03.22 DEFENDANT 3R 416750

22.03.22 DEFENDANT 3W 416750

22.03.22 DEFENDANT 3X 416750

22.03.22 PLAINTIFF 416750 3T

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CMA No. 698 of 2024

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14.06.22 DEFENDANT 3L 50116

26.04.22 PLAINTIFF 500000 3Q

17.06.22 &

14.06.22

PLAINTIFF &

DEFENDANT

500000 3D by plaintiff &

3C by defendant

500000

15.07.22 &

21.08.22

PLAINTIFF &

DEFENDANT

500000 3E by defendant

and 3G & 3H by

plaintiff

500000

25.06.222 PLAINTIFF 500000 3S

14.04.22 PLAINTIFF 500000 3F

16.06.22 &

25.7.22

PLAINTIFF &

DEFENDANT

5000 3A by Defendant 500000

20.06.22 PLAINTIFF 500000 3V

14.06.22 PLAINTIFF &

DEFENDANT

50000 3I by defendant &

3Y by plaintiff

500000

16.08.22 PLAINTIFF 500000 3B

8.09.21 REGISTERED

19.08.21 REGISTERED

8.10.21 REGISTERED

Total Amt

returned by

plaintiff =

7035986 Total Amt.

returned by

defendant =

3751366

CALCULATION TABLE – 2

Sl.No. Date of Payment Amount (Rs.) Mode of Payment Document No.

1 5.01.2021 20,00,000 CASH 6

2 17.02.21 10,00,000 CASH 11

3 26.12.20 20,00,000 CASH 13

4 5.04.2021 24,000 ONLINE 19

5 5.04.2021 24,000 ONLINE 20

6 5.04.2021 4,00,000 CH: 970817 21

7 5.04.2021 2,00,000 ONLINE 22

8 6.04.2021/22.03.21 2,00,000 ONLINE 33

9 6.04.2021 1,00,000 ONLINE 34

10 6.04.2021 4,30,000 ONLINE 37

11 6.04.2021 4,30,000 ONLINE 38

Total Advances

paid by the

plaintiff

68,08,000

21. The appellant has filed the reply affidavit. In the said replay

affidavit, in para-5, referring to the statement calculation table-1 and

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CMA No. 698 of 2024

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calculation table-2 of the Memo dated 24.07.2024, the following contentions

have been raised, which read as under:

“5. Without prejudice to the above contention, the documents relied upon by the

parties were totally misread by the commercial court and thus, its finding are based on

surmises and conjectures and contrary to the evidence on record. Being a final fact-

finding court, I humbly request this Hon’ble Court to kindly consider whether the

findings of the trial court are based on evidence or they run contrary to the evidence on

record. The calculation memo filed by the respondent before the trial court during the

course of hearing of the I.A.No.453 of 2023 is herewith filed. Similarly, I also filed

the rebuttal table in the written statement and the counter affidavit in the lower

Court. The following facts are clear from the perusal of the calculation memo filed by

the respondent/plaintiff and the documents relied upon by him.

i) The amounts allegedly received by me are shown as Rs.1,18,62,352/- (Column 5

Sl.No.24) is not correct as Sl.No.6 to 9 is only one transaction as evident from

document No.17, without admitting, Rs.1,06,12,102/- Column No.5, Sl.No.24,

after deducting multiple entries in Sl.No.6 to 8, it ought to be Rs.1,06,12,102/-

ii) Document No.3 filed by the respondent is bunch of self serving vouchers which

do not even bare revenue stamps except one or two, so the alleged refund of

amounts allegedly made by the respondent/plaintiff to the others have not been

established. No bank statement is filed to show those payments. Thus, the

contract in respect of Sl.1 to 19 did not fructify.

iii) Admittedly column No.12 at Sl.No.13 shows the amounts refunded by me to

others are totaled as Rs.37,51,366/-.

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CMA No. 698 of 2024

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iv) In respect of Sl.No.20, 21 and 22, the amounts received is only Rs.46,30,000/-

only (column 5, Sl.No.20, 21 and 22). In fact, I am entitled to receive as per

MOU is Rs.56,99,999/- x 3 = Rs.1,76,99,997/-. Thus, the balance amount to be

received by me is Rs.1,30,69,997/-.

v) The refundable advance amount of Rs.50,00,000/- shown at Column 5 Sl.No.26

payable to the respondent, if adjusted from this Rs.1,30,69,997 – 50,00,000 =

Rs.80,69,997/-. Thus, I have to receive an amount of Rs.80,69,997/- from the

respondent.

vi) The calculation shown in Table-2 is absolutely incorrect for a simple reason

Sl.Nos.4 to 11 are the amounts which have received as hand loans from third

parties and the respondent has nothing to do with those amounts. Thus, the

claim in Table-2 to an extent of Rs.18,30,000/- is absolutely incorrect and

misleading.

vii) Without admitting the correctness of items 1 to 3 shown at Sl.No.1 to 3 of Table-

2, even if this amount is adjusted out of the balance amount payable to me

Rs.30,69,997/-.

viii) The amounts received by me in respect of Sl.Nos.1 to 19 as per Column 5 of the

calculation memo Table-1 are Rs.66,32,352/- after deducting multiple entries at

Sl.No.68.

ix) As already submitted Column 12 of Table-1 at Sl.No.23 shows that I have

refunded Rs.37,51,366/-. If the said amount is adjusted towards the amounts

received by me in respect of Sl.Nos.1 to 19 the balance amount to be paid by me

is Rs.28,80,366/-.

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CMA No. 698 of 2024

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x) If the said amount payable by me is deducted from the amount to be paid by the

respondent i.e., Rs.30,69,997/- The balance amount payable to me is

Rs.1,89,631/-.

xi) In addition, I incurred Rs.15,50,000/- towards GST in respect of the concluded

in respect of plots 26, 27 and 24 (Sl.No.20, 21 and 22).

xii) Additionally the respondent/plaintiff collected Rs.10,00,000/- towards extra

work of the interiors. Thus, the respondent illegally retained Rs.25,50,000/-,

which has not been adjusted.

xiii) Once Sl.No.24, 25 (at Column 5) are wrong whole calculation memo is wrong.

xiv) The marketing expenses allegedly incurred by the respondent has not been

established. Thus, Column 5, at Sl.No.26 cannot be acceptable.

xv) In fact there is no such a clause in MOU of paying interest on amounts due and

the respondent cannot make any claim in this respect. Thus, the claim for

interest is totally misconceived and vitiated and column 28 cannot be considered

at all and beyond the scope of MOU. Further, the said claim is totally vitiated,

once the Sl.Nos.24 to 27, Column 5 are vitiated. In fact, I have to receive the

amounts from the respondent and I need not pay any amounts to the respondent.

xvi) Thus, the claim for Rs.3,19,75,543/- is totally baseless and the suit claim itself is

bad. Once suit claim is not establishes, the question of invoking Order 38 Rule 5

of CPC does not arise.”

IV. Submissions of the learned counsels:

i) For the Appellant:

22. Learned counsel for the appellant submitted that the plaintiff failed

to establish

prima facie case for the Order of attachment before judgment. The

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finding on prima facie case, as recorded by the learned Special Judge, was

erroneous. He further submitted that the finding was not based on any

evidence and no documents were marked. Learned counsel for the appellant

further submitted that the impugned Order is a non-speaking Order.

23. Referring to para-5 of the reply affidavit, learned counsel for the

appellant submitted that the calculation tables were not correct and in fact the

plaintiff had to pay to the defendant/appellant. So, in consideration of those

tables there could be no

prima facie case to pass the Order of attachment.

24. Learned counsel for the appellant submitted that merely because the

defendant did not furnish security pursuant to the initial Order, the Order of

attachment could not be passed, as in his submission, no

prima facie case for

the claim was made out based on the incorrect calculation/tabulation charts.

25. Learned counsel for the appellant placed reliance in the following

cases:

1)

Sk.Ameer Basha v. Manthana Vani and another

1

2)

Raman Tech. & Process Engg.Co. v. Solanki Traders

2

3)

R. B. M. Pati Joint Venture v. Bengal Builders

3

4)

Mandala Suryanarayana @ Babji v. Barla Babu Rao

4

1

2023 (2) ALD 47 (AP)

2

(2008) 2 SCC 302

3

2003 SCC OnLine Cal 320

4

2009 SCC OnLine AP 708

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ii) For the Respondent:

26. Learned counsel for the respondent submitted that there was no

illegality in the Order under challenge. He submitted that

prima facie case for

the claim was made out. The learned Special Court rightly recorded that

prima

facie

a claim towards refundable advance and the amounts remitted to the

defendant had been made out by the plaintiff who had accounted for most of

the documents, payments received/paid/remitted/refunded.

27. He submitted that the co-relation calculation tables filed with memo

before the learned Special Court were correct and disputed the submission of

the learned counsel for the appellant based on para-5 of the appellant’s reply

affidavit, submitting

inter alia that there were no double entries. The alleged

double entries were different transactions of the same date vide same

document number.

28. Learned counsel for the respondent further submitted that there was

threat of alienation of the petition schedule property by the defendant in trying

to alienate the property in his own name which was evidenced by the copy of

the brochure filed before the Special Court and the affidavit of the third party.

So, there was no illegality in passing the Order of attachment and particularly,

when the defendant failed to furnish the security in an amount of

Rs.3,20,00,000/- of the plaintiff’s claim pursuant to the Order dated 10.11.2023

passed by the learned Special Court.

29. Learned counsel for the respondent placed reliance in the following

cases.

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21

1) Premraj Mundra v. Md. Maneck Gazi

5

, and

2) Ramakant Ambalal Choksi v. Harish Ambalal Choksi

6

V. Point for determination:

30. In view of the submissions advanced, the following point arises for

our consideration and determination:

“Whether the impugned Order dated 09.08.2024 of attachment

before judgment passed under Order 38 Rules 5 & 6 CPC suffers from

any illegality and calls for any interference by this Court in the exercise

of appellate jurisdiction?”

VI. Analysis:

31. We have considered the aforesaid submissions and perused the

material on record.

i) Attachment before judgment:

32. Order 38 Rules 5 and 6 CPC reads as under:

“5. Where defendant may be called upon to furnish security for

production of property.

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or

otherwise, that the defendant, with intent to obstruct or delay the execution of

any decree that may be passed against him,-

(a) is about to dispose of the whole or any part of his property, or

(b) is 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 in the order, to produce and place at the disposal of the Court, when

required, the said property or the value of the same, or such portion thereof as

5

1951 SCC OnLine Cal 20

6

2024 SCC OnLine SC 3538

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may be sufficient to satisfy the decree, or to appear and show cause why he

should not furnish security.

2) The plaintiff shall, unless the court otherwise directs, specify the property

required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the

whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of

sub-rule (1) of this rule such attachment shall be void.

6. Attachment where cause not shown or security not furnished.

(1) Where the defendant fails to show cause why he should not furnish security,

or fails to furnish the security required, within the time fixed by the Court, the

Court may order that the property specified, or such portion thereof as appears

sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause of furnishes the required security,

and the property specified or any portion of it has been attached, the Court shall

order the attachment to be withdrawn, or make such other order as it thinks fit.”

33. From perusal of Order 38 Rules 5 and 6 CPC, it is evident that where,

at any stage of a suit, the Court is satisfied by affidavit or otherwise that the

defendant with intent 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 is 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 in the order to produce and place at the disposal of the Court, when

required, the said property or the value of the same or such portion thereof as

may be sufficient to satisfy the decree or to appear and show cause why he

should not furnish security. When the defendant fails to show cause why he

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should not furnish security or fails to furnish security required within the time

fixed by the Court, the Court may order that the property specified or such

portion thereof as appears sufficient to satisfy the decree that may be passed in

the suit, may be attached. Where the defendant shows such cause of

furnishing the required security, and the property specified or any portion of it

has been attached, the Court shall order the attachment to be withdrawn or

make such other order as it thinks it.

34. In

Raman Tech. & Process Engg. Co. (supra) the Hon’ble Apex

Court held that the object of supplemental proceedings (applications for arrest

or attachment before judgment, grant of temporary i njunctions and

appointment of receivers) was to prevent the ends of justice being defeated.

The object of Order 38 Rule 5 CPC in particular, was to prevent any defendant

from defeating the realization of the decree that may ultimately be passed in

favour of the plaintiff, either by attempting to dispose of, or remove from the

jurisdiction of the court, his movables. The scheme of Order 38 and the use of

the words “to obstruct or delay the execution of any decree that may be passed

against him” in Rule 5 make it clear that before exercising the power under the

said Rule, the court should be satisfied that there is a reasonable chance of a

decree being passed in the suit against the defendant. This would mean that

the court should be satisfied that the plaintiff has a prima facie case. If the

averments in the plaint and the documents produced in support of it, do not

satisfy the court about the existence of a prima facie case, the court will not go

to the next stage of examining whether the interest of the plaintiff should be

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protected by exercising power under Order 38 Rule 5 CPC. It is well settled that

merely having a just or valid claim or a prima facie case, will not entitle the

plaintiff to an order of attachment before judgment, unless he also establishes

that the defendant is attempting to remove or dispose of his assets with the

intention of defeating the decree that may be passed. Equally well settled is the

position that even where the defendant is removing or disposing his assets, an

attachment before judgment will not be issued, if the plaintiff is not able to

satisfy that he has a prima facie case.

35. The Hon’ble Apex Court further observed in Raman Tech. &

Process Engg. Co. (supra) that the power under Order 38 Rule 5 CPC is a

drastic and extraordinary power. Such power should not be exercised

mechanically or merely for the asking. It should be used sparingly and strictly in

accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an

unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the

provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle

the suit claim should be discouraged. The Hon’ble Apex Court further observed

that a defendant is not debarred from dealing with his property merely because

a suit is filed or about to be filed against him. Shifting of business from one

premises to another premises or removal of machinery to another premises by

itself is not a ground for granting attachment before judgment. A plaintiff

should show, prima facie, that his claim is bona fide and valid and also satisfy

the court that the defendant is about to remove or dispose of the whole or part

of his property, with the intention of obstructing or delaying the execution of

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any decree that may be passed against him, before power is exercised under

Order 38 Rule 5 CPC.

36. In

Premraj Mundra (supra), upon which, the learned counsel for

the respondent placed reliance, the Calcutta High Court observed and laid down

the guiding principles for an Order, under Order 38 Rules 5 and 6 as to under

what circumstances and on consideration of, what factors, an Order of

attachment before judgment should be passed.

Premraj Mundra (supra) was

followed by another judgment of the Calcutta High Court by the Division Bench

in

R. B. M. Pati Joint Venture (supra) upon which learned counsel for the

appellant also placed reliance.

37. We shall reproduce para-15 of the

R. B. M. Pati Joint Venture

(supra), in which para-10 of Premraj Mundra (supra) has been cited.

“15. The said Rule 5 is under the heading Attachment before judgment. It

appears from the said provision that Court was entitled to exercise the power

for attachment before judgment only when the defendant with intent 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 from the local limits of the

jurisdiction of the Court. It appears from the impugned order that the said

aspects were not at all taken into consideration and no satisfaction in that

respect was recorded by the trial Court as appears from the impugned order.

Law in this regard as settled in the case of Premraj Mundra (supra) is relevant

and in paragraph 10 of the said judgment, guiding principles have been noted as

follows:—

“10. From a perusal of all the authorities, I think that the following guiding

principles to be deduced:

(1) That an order under O. 38 Rr. 5 & 6, can only be issued, if circumstances, exist

as are stated therein.

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(2) Whether such circumstances exist is a question of fact that must be proved to

the satisfaction of the Court.

(3) That the Court would not be justified in issuing an order for attachment before

judgment, or for security, merely because it thinks that no harm would be done

thereby or that the defts, would not be prejudiced.

(4) That the affidavits in support of the contention of the applicant, must not be

vague, & must be properly verified. Where it is affirmed true to knowledge or

information or belief, it must be stated as to which portion is true to knowledge

the source of information should be disclosed, and the grounds for belief should

be stated.

(5) That a mere allegation that the deft. was selling off his properties is not

sufficient. Particulars must be stated.

(6) There is no rule that transaction before suit cannot be taken into consideration,

but the subject of attachment before judgment must be to prevent future transfer

or alienation.

(7) Where only a small portion of the property belonging to the deft. is being

disposed of, no inference can be drawn in the absence of other circumstances

that the alienation is necessarily to defraud or delay the pltf.'s claim.

(8) That the mere fact of transfer is not enough, since nobody can be prevented

from dealing with his properties simply because a suit has been filed; There

must be additional circumstances to show that the transferrer is with an

intention to delay or defeat the plft.'s claim. It is open to the Court to look to the

conduct of the parties immediately before suit, and to examine the surrounding

circumstances, and to draw an inference as to whether the deft. is about to

dispose of the property, and if so, with what intention. The Court is entitled to

consider the nature of the claim and the defence put forward.

(9) The fact that the deft. is in insolvent circumstances or in acute financial

embarrassment, is a relevant circumstance, but not by itself sufficient.

(10) That in the case of running businesses, the strictest caution is necessary and

the mere fact that a business has been closed, or that its turnover had

diminished, is not enough.

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(11) Where however the deft. starts disposing of his properties one by one,

immediately upon getting a notice of the plft.'s claim, and/or where he had

transferred the major portion of his properties shortly prior to the institution of

the suit, and was in an embarrassed financial condition, these were grounds

from which an inference could be legitimately drawn that the object of the deft.

was to delay and defeat the plft.'s claim.

(12) Mere removal of properties outside jurisdiction, is not enough, but where the

deft. with notice of the plft.'s claim, suddenly begins removal of his properties

outside the jurisdiction of the appropriate Court, and without any other

satisfactory reason, an adverse inference may be drawn against the deft. where

the removal is to a foreign country, the inference is greatly strengthened.

(13) The deft. in a suit is under no liability to take any special care in administering

his affairs, simply because there is a claim pending against him. Here neglect,

or suffering execution by other creditors, is not a sufficient reason for an order

under O. 38 of the Code.

(14) The sale of properties at a gross undervalue, or benami transfers, are always

good indications of an intention to defeat the plft.'s claim. The Court must

however be very cautious about the evidence on these points and not rely on

vague allegations.”

38. In Raman Tech. & Process Engg. Co. (supra) the Hon’ble Apex

Court observed that Courts should also keep in view the principles relating to

grant of attachment before judgment, referring to the judgment of the Calcutta

High Court in Premraj Mundra (supra), for a clear summary of the principles.

39. We find that the learned trial Court has clearly recorded a finding

that prima facie case has been made out. The documents and the calculation

sheets submitted by the respondent prima facie supported the claim of the

plaintiff. It also recorded the finding that in view of the brochure and the

affidavit of the third party, the defendant was trying to alienate the plaint

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schedule property which might defeat the very decree that might be passed in

the suit. This is based on material before it. So, we are of the view that the

reasons have been assigned in the Order and on consideration of the relevant

facts and on being satisfied with the pre-conditions as under Rule 5 of Order 38

CPC, recording the findings, prima facie, the Order of attachment has been

passed with due opportunity to the defendant/appellant.

40. In Dalpat Kumar v. Prahlad Singh

7

the Hon’ble Apex Court

observed that prima facie case is not to be confused with prima facie title which

has to be established on evidence at the trial. Only prima facie case is

substantial question raised, bona fide, which needs investigation and a decision

on merits.

41. Recently, in State of Kerala v. Union of India (UOI)

8

the Hon’ble

Apex Court observed that generally speaking, the phrase ‘prima facie case’ is

not a term of art and it simply signifies that at first sight the plaintiff has a

strong case.

42. We find that the learned Special Court considered the calculation

charts 1 and 2 filed by the respondent/plaintiff vide Memo dated 04.12.2024.

The learned Special Court has observed that any objection to that memo was

not filed by the defendant/appellant and he also did not file any separate co-

relate calculation memo and both the sides argued based on co-relation

calculation memo filed by the plaintiff.

7

(1992) 1 SCC 719

8

(2024) 7 SCC 183

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43. The learned Special Court in para-12 of its judgment, clearly

recorded and noted that “

…….Learned counsel for the plaintiff filed two such

statements which were not disputed and to which no counter statements or

objections were filed, however, both learned counsels submitted on those

statements

”.

44. The learned Special Judge recorded the finding of

prima facie case in

plaintiff’s favour to pass the Order of attachment before judgment on perusal of

those statement, as is clearly observed in para-13 of the judgment.

45. It has not been submitted before us and any such ground has not

been raised before us that the defendant also filed any co-relation statement of

amounts received/paid/remitted/refunded nor that the defendant filed any

objection to the co-relation statement of the amounts filed by the plaintiff. The

statement of fact in para-12 of the judgment of the learned Special Court to

that effect and as reproduced, as also to the effect that “

both the learned

counsels

submitted on those statements”, has not been disputed before us.

46. From para-5 of the reply affidavit filed in this appeal, it is evident

that in this appeal, the appellant is in fact raising objections with respect to the

calculation tables filed by the respondent/plaintiff and is disputing the same

with respect to certain entries, and based thereon is denying the claim of the

plaintiff as totally baseless and also showing that the defendant is entitled for

some amount from the plaintiff by submitting that there was illegal retention by

the plaintiff and there was no adjustment made, and also that some entries

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could not be considered at all being beyond the scope of MOU. Based on such

argument, the existence of

prima facie case is being disputed. 47. Though as submitted in para-5 of the reply affidavit, the defendant

had filed the written statement disputing the claim of the plaintiff by giving the

tables as also in the objections to the application, but, we are of the view that

once the learned Special Court, might be because of or in consideration of

various documents and various details of particulars as reflected from the plaint

as also the written statement, application for attachment and objections

thereto, had called for a co-relation memo/tables and the same was filed by the

plaintiff, along with the memo, if there was something according to the

defendant not correct, it ought to have pointed out the same to the learned

Special Court, by filing the objections to the co-relation memo containing the

tables 1 and 2 or he ought to have filed his own tables for clarity and for the

sake of convenience of the learned Special Court to appreciate the factual

position with respect to the accounts, which was not done. The learned Special

Court in consideration of those tables filed along with the memo, upon which

the defendant’s counsel also argued, passed the Order. No fault can be found

with the Order of the learned Special Court on the ground that statement

contained in those tables was not correct, which is being raised for the first

time in this appeal vide the reply affidavit.

48. We are not inclined to interfere with the impugned Order of the

learned Special Court on the aforesaid submission. The learned Special Court

has to finally decide that aspect during trial, and at this stage, considering

inter

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alia the memo and co-relation tables filed by the plaintiff, against which the

defendant did not file any objection or co-relation table before the learned

Special Court, which fact is reflected in the impug ned Order, the

appellant/defendant cannot be permitted to challenge the impugned Order on

such ground, as the same is also disputed by the learned counsel for the

respondent. In any case, we are of the view that if there is some truth in the

contentions raised, as raised in para-5 of the reply affidavit in this appeal, the

appellant is at liberty to file appropriate application before the learned Special

Court. Learned Special Court in the operative part of the impugned Order has

already granted liberty to the defendant/appellant to seek modification and

providing further that the same if filed shall be considered and decided as per

law.

49. Learned counsel for the appellant placed reliance in Mandala

Suryanarayana @ Babji (supra), in which, a coordinate Bench of this Court

held that the power to attach before judgment cannot be exercised in a routine

manner. If the Court is satisfied prima facie with regard to conditions

enumerated in Rule 5 of Order 38 CPC, those reasons should be found in the

Order at least at the stage of ordering warrant of attachment. The non-

furnishing of reasons while issuing an Order of attachment would render the

remedy of appeal very ineffective as the appellate Court would not be in a

position to know as to which are the grounds that weighed with the learned

trial Court for arriving at satisfaction of Order of attachment before judgment.

This judgment was cited to contend that the impugned Order is a non-reasoned

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Order, raising the submission that the reason has not been assigned and

consequently, the Order cannot be sustained in view of the judgment in

Mandala Suryanarayana @ Babji (supra).

50. There is no dispute on the proposition of law as laid down in

Mandala Suryanarayana @ Babji (supra) that the reasons should be

recorded for the Order of attachment before judgment, so that the party may

know as to why the attachment Order has been passed and it may be agitated

in the appellate Court by taking appropriate grounds, so as to meet those

reasons or to show that those are non-existent or even if existing, not

furnishing the ground for order of attachment. It is also so necessary that the

Order being appealable, the appellate Court must know about the reasons

which persuaded the Court to pass the Order of attachment. The reasons are

the backbone of every order and not only the Order of attachment. But, we are

not in agreement with the submission advanced by the learned counsel for the

appellant that in the present case the impugned Order is not a reasoned Order.

Specific reasons have been assigned for passing the Order of attachment.

51. Learned counsel for the appellant by placing further reliance on the

judgment in Sk. Ameer Basha (supra), submitted that in the said case also

reasons were not recorded for the satisfaction of the Court and the Order of

attachment before judgment was set aside.

52. We have already observed that in the present case, we are satisfied

that the cogent reasons have been assigned in the Order of the learned Special

Court. In Sk. Ameer Basha (supra), the Court had not assigned the reasons

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for its satisfaction for ordering conditional attachment. Further, no time was

fixed for furnishing security or to show cause as to why the defendant should

not furnish security, which was contrary to Rule 5 of Order 38 CPC. So, finding

that there was non-compliance with the pre-conditions for granting an Order of

attachment before judgment under Order 38 Rule 5 CPC, the Order in Sk.

Ameer Basha (supra) was set aside. The present case is not the case of the

nature as in Sk. Ameer Basha (supra). Additionally, the present case is a

case of an Order under Rule 6. It is not a case at the stage of Rule 5, nor it

has been contended before us that the Order passed under Rule 5 did not

specify the time for furnishing security or to show cause. In fact, vide Order

dated 10.11.2023 under Rule 5 time was fixed for the defendant to furnish

security in an amount of Rs.3,20,00,000/- or to sho w cause. The

appellant/defendant did not furnish security but filed objections, and

considering the objections, the Order has been passed. So, in our view, the

appellant cannot derive any benefit of the judgment in Sk. Ameer Basha

(supra) to support his contention.

ii) Appellate jurisdiction under Order 43 Rule 1 CPC:

53. Learned counsel for the respondent placed reliance in

Ramakant

Ambalal Choksi

(supra) with respect to the appellate jurisdiction under Order

43 of the Code of Civil Procedure in relation to the grant or non-grant of interim

injunction, that is Order in interlocutory application, in which, the Hon’ble Apex

Court, referring to its judgment,

inter alia, in Wander Ltd. V. Antox India P.

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Ltd.

9

and Printers (Mysore) v. Pothan Joseph

10

, as also Mohd. Mehtab

Khan v. Khushnuma Ibrahim Khan

11

and other cases observed and held

that the appellate Court should not assume unlimited jurisdiction and should

guide its powers within the contours laid down in

Wander (supra) case. In

Wander (supra), the Hon’ble Apex Court observed and held that the appellate

Court ordinarily should not substitute its own discretion in an appeal preferred

against a discretionary order, except where the discretion has been shown to

have been exercised arbitrarily or capriciously or perversely, or where the Court

has ignored the settled principles of law, also that, the appellate Court will not

reassess the material and seek to reach a conclusion different from the one

reached by the trial Court. If the discretion has been exercised by the trial

Court reasonably and in a judicial manner, the fact that the appellate Court

would have taken a different view may not justify interference with the trial

Court’s exercise of discretion.

54. It is apt to refer the discussion in

Ramakant Ambalal Choksi

(supra) under the head ‘Appellate Jurisdiction under Order 43 of the CPC’ as

under:

“APPELLATE JURISDICTION UNDER ORDER 43 OF THE CPC

20. Order 43 of the CPC specifies the orders against which an appeal lies.

Sub-Rule (r) of Rule 1 of the said order provides that an appeal would lie

against an order made under Rules 1, 2, 2A, 4 and 10 of Order 39 of

the CPC respectively.

9

1990 Supp SCC 727

10

(1960) SCC OnLine SC 62

11

(2013) 9 SCC 221

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21. The law in relation to the scope of an appeal against grant or non-grant

of interim injunction was laid down by this Court in Wander Ltd. v. Antox India

P. Ltd., 1990 Supp SCC 727. Antox brought an action of passing off against

Wander with respect to the mark Cal-De-Ce. The trial court declined Antox's

plea for an interim injunction, however, on appeal the High Court reversed the

findings of the trial judge. This Court, upon due consideration of the matter,

took notice of two egregious errors said to have been committed by the High

Court:

a. First, as regards the scope and nature of the appeals before it and the limitations

on the powers of the appellate court to substitute its own discretion in an appeal

preferred against a discretionary order; and

b. Secondly, the weakness in ratiocination as to the quality of Antox's alleged user

of the trademark on which the passing off action is founded.

22. With regards to (a), this Court held thus:

“In such appeals, the appellate court will not interfere with the exercise of

discretion of the court of the first instance and substitute its own discretion,

except where the discretion has been shown to have been exercised arbitrarily

or capriciously or perversely, or where the court had ignored the settled

principles of law regulating grant or refusal of interlocutory injunctions … the

appellate court will not reassess the material and seek to reach a conclusion

different from the one reached by the court below … If the discretion has been

exercised by the trial court reasonably and in a judicial manner the fact that the

appellate court would have taken a different view may not justify interference

with the trial court's exercise of discretion.”

23. This Court, while arriving at the above findings, relied on its earlier

judgment in Printers (Mysore) v. Pothan Joseph, 1960 SCC OnLine SC

62 where it was held thus:

“[…] as has been observed by Viscount Simon LC in Charles Osenton &

Co v. Johnston - the law as to reversal by a court of appeal of an order made by

a judge below in the exercise of his/her discretion is well established, and any

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difficulty that arises is due only to the application of well-settled principles in

an individual case.”

24. It is pertinent to note that in Printers (supra) this Court had held that

ignoring relevant facts is also a ground for interfering with the discretion

exercised by the trial court. Furthermore, Viscount Simon LC in Charles

Osenton & Co v. Johnston, [1942] A.C. 130, after stating the above, went on to

quote Lord Wright's decision in Evans v. Bartlam, [1937] A.C. 473:

“It is clear that the court of appeal should not interfere with the discretion

of a judge acting within his jurisdiction unless the court is clearly satisfied that

he was wrong. But the court is not entitled simply to say that if the judge had

jurisdiction and had all the facts before him, the court of appeal cannot review

his order unless he is shown to have applied a wrong principle. The court must,

if necessary, examine anew the relevant facts and circumstances in order to

exercise a discretion by way of review which may reverse or vary the order.”

25. In Evans (supra) case, Lord Wright made it clear that while adjudicating

upon the discretion exercised by the trial court, the appellate court is obliged to

consider the case put forward by the appellant in favour of its argument that the

trial court exercised its discretion arbitrarily or incorrectly in the circumstances.

26. What flows from a plain reading of the decisions in Evans (supra)

and Charles Osenton (supra) is that an appellate court, even while deciding an

appeal against a discretionary order granting an interim injunction, has to:

a. Examine whether the discretion has been properly exercised, i.e. examine

whether the discretion exercised is not arbitrary, capricious or contrary to the

principles of law; and

b. In addition to the above, an appellate court may in a given case have to

adjudicate on facts even in such discretionary orders.

27. The principles of law explained by this Court in Wander's (supra) have

been reiterated in a number of subsequent decisions of this Court. However,

over a period of time the test laid down by this Court as regards the scope of

interference has been made more stringent. The emphasis is now more on

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perversity rather than a mere error of fact or law in the order granting injunction

pending the final adjudication of the suit.

28. In Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC

672 this Court held that the Appellate Court should not flimsily, whimsically or

lightly interfere in the exercise of discretion by a subordinate court unless such

exercise is palpably perverse. Perversity can pertain to the understanding of law

or the appreciation of pleadings or evidence. In other words, the Court took the

view that to interfere against an order granting or declining to grant a temporary

injunction, perversity has to be demonstrated in the finding of the trial court.

29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, (2013) 9 SCC

221 this Court emphasised on the principles laid down in Wander (supra) and

observed that while the view taken by the appellate court may be an equally

possible view, the mere possibility of taking such a view must not form the

basis for setting aside the decision arrived at by the trial court in exercise of its

discretion under Order 39 of the CPC. The basis for substituting the view of the

trial court should be malafides, capriciousness, arbitrariness or perversity in the

order of the trial court. The relevant observations are extracted below:

“20. In a situation where the learned trial court on a consideration of the

respective cases of the parties and the documents laid before it was of the view

that the entitlement of the plaintiffs to an order of interim mandatory injunction

was in serious doubt, the Appellate Court could not have interfered with the

exercise of discretion by the learned Trial Judge unless such exercise was found

to be palpably incorrect or untenable. The reasons that weighed with the

learned Trial Judge, as already noticed, according to us, do not indicate that

the view taken is not a possible view. The Appellate Court, therefore, should not

have substituted its views in the matter merely on the ground that in its opinion

the facts of the case call for a different conclusion. Such an exercise is not the

correct parameter for exercise of jurisdiction while hearing an appeal against a

discretionary order. While we must not be understood to have said that the

Appellate Court was wrong in its conclusions what is sought to be emphasized

is that as long as the view of the trial court was a possible view the Appellate

Court should not have interfered with the same following the virtually settled

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principles of law in this regard as laid down by this Court in Wander

Ltd. v. Antox India (P) Ltd.”

(Emphasis supplied)

30. This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries

Ltd., (2023) 1 SCC 634 observed that the hierarchy of the trial court and the

appellate court exists so that the trial court exercises its discretion upon the

settled principles of law. An appellate court, after the findings of the trial court

are recorded, has an advantage of appreciating the view taken by the trial judge

and examining the correctness or otherwise thereof within the limited area

available. It further observed that if the appellate court itself decides the matters

required to be decided by the trial court, there would be no necessity to have the

hierarchy of courts.

31. This Court in Monsanto Technology LLC v. Nuziveedu Seeds

Ltd., (2019) 3 SCC 381, observed that the appellate court should not usurp the

jurisdiction of the Single Judge to decide as to whether the tests of prima facie

case, balance of convenience and irreparable injury are made out in the case or

not.

32. The appellate court in an appeal from an interlocutory order granting or

declining to grant interim injunction is only required to adjudicate the validity

of such order applying the well settled principles governing the scope of

jurisdiction of appellate court under Order 43 of the CPC which have been

reiterated in various other decisions of this Court. The appellate court should

not assume unlimited jurisdiction and should guide its powers within the

contours laid down in the Wander (supra) case.”

55. We are of the view that the learned trial Court has passed the Order

of attachment before judgment specifically recording that

prima facie case was

made out on the material on record for the claim of the plaintiff, as also that

the defendant appellant in order to defeat the claim of the plaintiff, for which

the decree might have been passed in the suit, was trying to alienate the

subject property or part thereof, has rightly passed the Order and with such

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39

findings in the exercise of the appellate jurisdiction, this Court should not

interfere as the trial Court has taken a reasonable view and in arriving at the

findings recorded, it has taken into account the material before it and any

settled principles of law have also not been violated.

56. We are of the further view that as the matter is pending before the

learned Special Court for trial, we should not make appreciation of the material

on record in the light of the objections raised in para-5 of the reply affidavit, in

the exercise of the appellate jurisdiction under Order 43 Rule 1 CPC, as

generally in the exercise of power of appellate jurisdiction under Order 43 Rule

1 CPC, this Court is not supposed to substitute its finding, unless a strong case

for such substitution is made out and particularly, when we are satisfied that

the finding on

prima facie case as also the defendant trying to alienate the

plaint schedule property as recorded by the learned Special Court, are based on

consideration of the material on record placed before the learned Special Court,

and also for the reason, that the learned Special Court has granted liberty to

the appellant to apply for modification of its Order, in the operative part of the

impugned Order.

VII.

Conclusions:

57. Thus, considered. We do not find any illegality in the Order

impugned, on the grounds of challenge. Point for determination is answered

accordingly.

58. So far as the correctness of the calculation charts 1 and 2 filed by

the plaintiff along with the memo before the learned Special Court is concerned,

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which is now being disputed in the appeal vide reply affidavit, it shall be open

to the appellant/defendant to file appropriate application, if so advised, in terms

of the impugned Order itself, which has permitted to file application for

modification of the Order and if any such application is so filed, the same would

be decided, in accordance with law.

VIII. Result:

59. The Civil Miscellaneous Appeal is dismissed, with the observations

made above in para-58 (supra).

60. No order as to costs.

Pending miscellaneous petitions, if any, shall sta nd closed in

consequence.

_______________________

RAVI NATH TILHARI, J

________________________

CHALLA GUNARANJAN, J

Date: 09.07.2025

Dsr

Note:

LR copy to be marked

B/o

Dsr