watershed case of Premraj Mundra v. Mohd. Maneck Gazi, several principles were laid down with respect to order of attachment of property before judgement, some of them were:
watershed case of Premraj Mundra v. Mohd. Maneck Gazi, several principles were laid down with respect to order of attachment of property before judgement, some of them were:
- Where a property’s small portion, that belongs to the defendant is being disposed of, it cannot be automatically inferred that the alienation is necessarily to hurdle the claim of the Plaintiff.
- A mere accusation that the property is being sold by the Defendant is not enough and particulars must be stated.
- Before the suit is filed, prior transactions could be taken into consideration, but attachment’s main aim is to preclude the Defendant from alienating or transferring the property in future.
- Simply transfer of property is not sufficient as one can’t be precluded from exercising his rights with respect to the property only because a suit has been filed. It must be apparently shown by the Plaintiff that such a transfer was made in order to defeat or delay the claim of the Plaintiff. An inference can then be drawn by the court as to the Defendant’s intentions behind the disposal of the property, if any. The court would examine the parties’ conduct before the suit was filed and the circumstances surrounding.
- Defendant’s insolvent circumstances or financial crisis can be a pertinent circumstance, but it should not be the sole reason.
- Strictest alertness should be maintained in the case of running businesses, and just because the turnover is meagre, is not sufficient.
- Taking away properties outside court’s jurisdiction is not sufficient, however, if the Defendant, after receiving the notice of Plaintiff’s claim, suddenly begins removal of his properties outside the appropriate court’s jurisdiction.
- There lies no responsibility on the Defendant to administer his affairs with extra care.
- In cases where the property is sold as per benami transfers or if it is undervalued, it can be indications of the fact that the Defendant’s intention is to defeat the plaintiff’s claim. Nevertheless, the court must still ascertain the evidence with cautiousness and should not rely on mere allegations.
- If such circumstances lie, then it would be a question of fact which should be proved to the court’s satisfaction. It would not be justified on court’s part to issue an attachment order, or seek to furnish security only on a mere thought that no harm would be caused to the Defendant and it shouldn’t be at the prejudice of the Defendant.
- The submissions of the applicant’s affidavits wherein contentions are stated must not be indistinct and should be properly verified. It should fulfill the essential ingredients of an affidavit with the source disclosed and should mention the rounds for believing the claim.
- Conditional attachment: A notice is not necessary under these cases. However, an opportunity lies with the Defendant to show cause against attachment of his property. It is only after Defendant has been given an opportunity to be heard that a final attachment order is passed. Therefore, this is not an attachment by itself as it will be ineffective until attachment is carried out in accordance with the procedure laid down in the code.
Mode of attachment