The High Court
Case Details
CR-2692- -2021 (O&M) [1] 144 IN THE HIGH COURT OF PUNJAB AND HARYANA AT IN THE HIGH COURT OF PUNJAB AND HARYANA AT IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CHANDIGARH R-2692-2021 (O&M) CR Date of Decision: 17.09.2025 Date of Decision: M/s Sachdeva and Sons Industries Pvt. Ltd. M/s Sachdeva and Sons Industries Pvt. Ltd. M/s Sachdeva and Sons Industries Pvt. Ltd. VERSUS ...Petitioner M/s NRC Industries Ltd. and others M/s NRC Industries Ltd. and others M/s NRC Industries Ltd. and others ...Respondents HARKESH MANUJA CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA CORAM: HON'BLE MR. JUSTICE Amit Jain, Sr. Advocate with Present: Mr.Amit Jain, Sr. Advocate with Present: Mr. Parit Aggarwal, Advocate Mr. Parit Aggarwal, Advocate for the petitioner. Mr.Amit Jhanji, Sr. Advocate with Mr.Amit Jhanji, Sr. Advocate with Mr. Viraj Gandhi, Advocate Mr. Viraj Gandhi, Advocate for respondents No.1 and 2. for respondents No.1 and 2. **** HARKESH MANUJA, J. (ORAL) HARKESH MANUJA, By way of present revision petition, challenge has been By way of present revision petition, challenge has been By way of present revision petition, challenge has been laid to an order dated 15.01.2020 passed by the Court of learned Civil laid to an order dated 15.01.2020 passed by the Court of learned Civil laid to an order dated 15.01.2020 passed by the Court of learned Civil laid to an order dated 15.01.2020 passed by the Court of learned Civil under Judge (Senior Division), Amritsar; whereby an application under Judge (Senior Division), Amritsar; whereby an application Judge (Senior Division), Amritsar; whereby an application Order 38 Rule 5, preferred at the instance of plaintiffs / Order 38 Rule 5, respondents preferred at the instance of plaintiffs / respondents No.1 and 2 was allowed and a direction was issued to attach the No.1 and 2 was allowed and a direction was issued to attach the No.1 and 2 was allowed and a direction was issued to attach the No.1 and 2 was allowed and a direction was issued to attach the
Facts
property of petitioner/ defendant No.5. property of petitioner/ defendant No.5. property of petitioner/ defendant No.5. 2. Briefly stating, respondents No.1 and 2 being plaintiffs Briefly stating, respondents No.1 and 2 being plaintiffs Briefly stating, respondents No.1 and 2 being plaintiffs No.3 to 5, herein, being filed a suit for recovery against respondents No.3 to 5, herein, being filed a suit for recovery against respondents filed a suit for recovery against respondents ts 1 to 3; having impleaded respondent No.4 as defendant defendants 1 to 3; having impleaded respondent No.4 as defendant ts 1 to 3; having impleaded respondent No.4 as defendant defendan No.4 and the petitioner being defendant No.5. The suit was filed for No.4 and the petitioner being defendant No.5. The suit was filed for No.4 and the petitioner being defendant No.5. The suit was filed for No.4 and the petitioner being defendant No.5. The suit was filed for SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [2] with Rs.5 crores as principal amount recovery of Rs.6,71,28,7568/- with Rs.5 crores as principal amount with Rs.5 crores as principal amount recovery of Rs.6,71,28,7568/ that and the remaining towards interest. In short, it was pleaded that and the remaining towards interest. In short, it was pleaded and the remaining towards interest. In short, it was pleaded defendants No.1 to 3 initially approached defendant No.4 Bank for defendants No.1 to 3 initially approached defendant No.4 Bank for defendants No.1 to 3 initially approached defendant No.4 Bank for defendants No.1 to 3 initially approached defendant No.4 Bank for grant of financial assistance and in lieu thereof, defendant No.5 grant of financial assistance and in lieu thereof, defendant No.5 grant of financial assistance and in lieu thereof, defendant No.5 grant of financial assistance and in lieu thereof, defendant No.5 07 title deeds pertaining to different properties situated deposited its 07 title deeds pertaining to different properties situated 07 title deeds pertaining to different properties situated deposited . For in Village Chabbha, Tehsil and District Amritsar, as security. For in Village Chabbha, Tehsil and District Amrit in Village Chabbha, Tehsil and District Amrit convenience, the details thereof are as under:- convenience, the details thereof are as under: convenience, the details thereof are as under: S.NO. DEED NO. DATE DATE AREA 1. 2. 3. 4. 5. 6. 7. 4607 9283 1270 2724 9282 3788 558 10.07.1974 10.07.1974 7 K 10 M 07.03.1973 07.03.1973 16K 1M 28.04.1975 28.04.1975 4K 2M 23.07.1976 23.07.1976 8K 07.03.1973 07.03.1973 7K 10M 07.09.1979 07.09.1979 14K 8M 29.04.1977 29.04.1977 12K 13M TOTAL 68k 8M ater, under a mutual It was further pleaded that, later, under a mutual It was further pleaded that, l agreement between the parties, financial assistance to the tune of agreement between the parties, financial assistance to the tune of agreement between the parties, financial assistance to the tune of agreement between the parties, financial assistance to the tune of in favour of defendants No.1 to 3 by the Rs.5 crores was granted in favour of defendants No.1 to 3 by the in favour of defendants No.1 to 3 by the Rs.5 crores was plaintiffs and the title deeds belonging to defendant No.5 were plaintiffs and the title deeds belonging to defendant No.5 were plaintiffs and the title deeds belonging to defendant No.5 were plaintiffs and the title deeds belonging to defendant No.5 were pleaded handed over by defendant No.4 to the plaintiffs. It was also pleaded handed over by defendant No.4 to the plaintiffs. It was handed over by defendant No.4 to the plaintiffs. It was loan facility got that the cheques issued towards discharge of the said loan facility got that the cheques issued towards discharge of the that the cheques issued towards discharge of the dishonoured and in the complaints preferred dishonour under Section 138 of the preferred under Section 138 of the SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [3] Negotiable Instruments Act, 1881, for short ‘the Act’, defendants No.1 Negotiable Instruments Act, 1881, for short ‘the Act’, defendants No.1 Negotiable Instruments Act, 1881, for short ‘the Act’, defendants No.1 Negotiable Instruments Act, 1881, for short ‘the Act’, defendants No.1 to 3 were declared proclaimed offenders. to 3 were declared proclaimed offenders. to 3 were declared proclaimed offenders. 3. During pendency of the suit, plaintiffs filed an application During pendency of the suit, plaintiffs filed an application During pendency of the suit, plaintiffs filed an application 5 CPC with a prayer for attachment of the under Order 38 Rule 5 CPC with a prayer for attachment of the 5 CPC with a prayer for attachment of the under Order 38 Rule properties ies owned by defendant No.5 owned by defendant No.5 in terms of 07 titled deeds of 07 titled deeds; expressing their apprehension that defendant No.5 in connivance expressing their apprehension that defendant No.5 in connivance expressing their apprehension that defendant No.5 in connivance expressing their apprehension that defendant No.5 in connivance with other defendants was trying to dispose of said propert with other defendants was trying to dispose of with other defendants was trying to dispose of properties abbha, Tehsil and District Amritsar. situated in Village Chabbha, Tehsil and District Amritsar. situated in Village Ch 4. The aforesaid application was opposed at the instance of The aforesaid application was opposed at the instance of The aforesaid application was opposed at the instance of defendant No.5/ petitioner. The learned trial Court vide its order defendant No.5/ petitioner. The learned trial Court vide its order defendant No.5/ petitioner. The learned trial Court vide its order defendant No.5/ petitioner. The learned trial Court vide its order dated 15.01.2020 allowed the application filed at the instance of dated 15.01.2020 allowed the application filed at the instance of dated 15.01.2020 allowed the application filed at the instance of dated 15.01.2020 allowed the application filed at the instance of plaintiffs and directed the attachment of plaintiffs and directed the attachment of aforementioned properties properties. ence the present revision petition. Hence the present revision petition. 5. Learned counsel for the petitioner submits that the Learned counsel for the petitioner submits that the Learned counsel for the petitioner submits that the order dated 15.01.2020 learned trial Court while passing the order dated 15.01.2020 learned trial Court while passing learned trial Court while passing exceeded its jurisdiction. He contends exceeded its jurisdiction. He passing the order contends that before passing the order of attachment of the properties, the learned trial Court was to first of attachment of the properties, the learned trial Court was to first of attachment of the properties, the learned trial Court was to first of attachment of the properties, the learned trial Court was to first adjudicate upon, as to whether the petitioner/ defendant No.5 adjudicate upon could as to whether the petitioner/ defendant No.5 could be called upon to furnish adequate security against the amount be called upon to furnish adequate security against the amount be called upon to furnish adequate security against the amount be called upon to furnish adequate security against the amount e further points out that in the sought to be recovered in the suit. He further points out that in the sought to be recovered in the suit. H sought to be recovered in the suit. H application, no details were mentioned to support the apprehension application, no details were mentioned to support the apprehension application, no details were mentioned to support the apprehension application, no details were mentioned to support the apprehension the expressed by the plaintiffs about alienation of the properties by the expressed by the plaintiffs about alienation of the properties expressed by the plaintiffs about alienation of the properties that the impugned order was liable to be set petitioner and thus prays that the impugned order was liable to be set that the impugned order was liable to be set petitioner and thus aside. SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [4] 6. he other hand, learned Senior counsel appearing on On the other hand, learned Senior counsel appearing on he other hand, learned Senior counsel appearing on submits that the apprehension of behalf of respondents No.1 and 2 submits that the apprehension of submits that the apprehension of behalf of respondents No.1 and 2 the plaintiffs/ respondents No.1 and 2 was fully substantiated from the the plaintiffs/ respondents No.1 and 2 was fully substantiated from the the plaintiffs/ respondents No.1 and 2 was fully substantiated from the the plaintiffs/ respondents No.1 and 2 was fully substantiated from the fact that the cheques issued by defendants No.1 to 3 towards fact that the cheques issued by defendants No.1 to 3 towards fact that the cheques issued by defendants No.1 to 3 towards fact that the cheques issued by defendants No.1 to 3 towards rge of discharge of the loan were dishonoured and liability were dishonoured and were dishonoured and in in in the the the proceedings under Section 138 of the Act, they were declared proceedings under Section 138 of the Act, they were declared proceedings under Section 138 of the Act, they were declared proceedings under Section 138 of the Act, they were declared proclaimed offenders. Learned Senior Counsel thus proclaimed that . Learned Senior Counsel thus contends that the attachment of the property was rightly ordered by the learned trial the attachment of the property was rightly ordered by the learned trial the attachment of the property was rightly ordered by the learned trial the attachment of the property was rightly ordered by the learned trial t so as to safeguard the interest of the plaintiffs against the Court so as to safeguard the interest of the plaintiffs against the t so as to safeguard the interest of the plaintiffs against the t so as to safeguard the interest of the plaintiffs against the as such financial assistance extended to defendants No.1 to 3 and as such financial assistance extended to defendants No.1 to 3 and financial assistance extended to defendants No.1 to 3 and the impugned order calls for no interference. the impugned order calls for no interference. the impugned order calls for no interference. 7. I have heard learned counsel for the parties and gone I have heard learned counsel for the parties and gone I have heard learned counsel for the parties and gone . I find substance in the submissions made through the paper-book. I find substance in the submissions made . I find substance in the submissions made through the paper on behalf of the petitioner/ defendant No.5. on behalf of the petitioner/ defendant No.5. on behalf of the petitioner/ defendant No.5. 8. , it may Before delving into the merits of the case in hand, it may Before delving into the merits of Order 38 Rule 5 be essential to minutely go through the provisions of Order 38 Rule 5 be essential to minutely go through the provisions of be essential to minutely go through the provisions of cation, which are extracted CPC as well as para 3 of the application, which are extracted CPC as well as para 3 of the appli CPC as well as para 3 of the appli hereunder:- hereunder: “Order 38 Rule 5: Where defendant may be called Where defendant may be called Where defendant may be called upon to furnish security for production of upon to furnish security for production of upon to furnish security for production of property. Where, at any stage of a suit, the Court is (1) Where, at any stage of a suit, the Court is Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the satisfied, by affidavit or otherwise, that the satisfied, by affidavit or otherwise, that the to obstruct or delay the defendant, with intent to obstruct or delay the defendant, with intent execution of any decree that may be passed execution of any decree that may be passed execution of any decree that may be passed against him,- SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [5] (a) is about to dispose of the whole or any part of is about to dispose of the whole or any part of 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 is about to remove the whole or any part of his is about to remove the whole or any part of his property from the local limits of the jurisdiction of property from the local limits of the jurisdiction of property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be the Court may direct the defendant, within a time to be the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as fixed by it, either to furnish security, in such sum as fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at may be specified in the order, to produce and place at may be specified in the order, to produce and place at the disposal of the Court, when required, the said the disposal of the Court, when required, the said the disposal of the Court, when required, the said the same, or such portion property or the value of the same, or such portion property or the value of thereof as may be sufficient to satisfy the decree, or to thereof as may be sufficient to satisfy the decree, or to thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish appear and show cause why he should not furnish appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise The plaintiff shall, unless the court otherwise The plaintiff shall, unless the court otherwise directs, specify the property required to be directs, specify the property required to be directs, specify the property required to be attached and the estimated value thereof. attached and the esti (3) The Court may also in the order direct the The Court may also in the order direct the The Court may also in the order direct the conditional attachment of the whole or any conditional attachment of the whole or any conditional attachment of the whole or any portion of the property so specified. portion of the property so specified. (4) If an order of attachment is made without If an order of attachment is made without If an order of attachment is made without rule (1) of complying with the provisions of sub-rule (1) of complying with the provisions of sub attachment shall be void.” this rule, such attachment shall be void.” “PARA 3 OF THE APPLICATION: “PARA 3 OF THE APPLICATION 3. That a huge amount is sought to be recovered That a huge amount is sought to be recovered That a huge amount is sought to be recovered from the defendants as per the details mentioned in from the defendants as per the details mentioned in from the defendants as per the details mentioned in the plaint. That however defendant No.5 in connivance the plaint. That however defendant No.5 in connivance the plaint. That however defendant No.5 in connivance with the other defendants is trying to dispose of by with the other defendants is trying to dispose of by with the other defendants is trying to dispose of by truct selling the property with the malafide intent to obstruct selling the property with the malafide intent to obs and delay the execution of decree which is likely to be and delay the execution of decree which is likely to be and delay the execution of decree which is likely to be passed by this Hon'ble Court against it. That the title passed by this Hon'ble Court against it. That the title passed by this Hon'ble Court against it. That the title deeds of deeds of deeds of the said property have already been the said property have already been the said property have already been deposited by the defendant No.5 as security of the deposited by the defendant No.5 as security of the deposited by the defendant No.5 as security of the title deed loan advanced to defendants No.1 to 3 i.e. title deed loan advanced to defendants No.1 to 3 i.e. SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [6] No.4607 qua the area of 7 kanal 10 marlas dated No.4607 qua the area of 7 kanal 10 marlas dated No.4607 qua the area of 7 kanal 10 marlas dated 10.07.1974, title deed No.9283 qua the area of 16 10.07.1974, title deed No.9283 qua the area of 16 10.07.1974, title deed No.9283 qua the area of 16 kanal 1 marla dated 07.03.1973, title deed No 1270 kanal 1 marla dated 07.03.1973, title deed No 1270 kanal 1 marla dated 07.03.1973, title deed No 1270 qua the area of 4 kanal 2 marla dated 28.04.1975, title qua the area of 4 kanal 2 marla dated 28.04.1975, title qua the area of 4 kanal 2 marla dated 28.04.1975, title ated deed No. 2724 qua the area of 8 kanal dated deed No. 2724 qua the area of 8 kanal d 23.07.1976, title deed No.9282 qua the area of 7 kanal 23.07.1976, title deed No.9282 qua the area of 7 kanal 23.07.1976, title deed No.9282 qua the area of 7 kanal 10 marlas dated 07.03 1973, title deed No. 3788 qua 10 marlas dated 07.03 1973, title deed No. 3788 qua 10 marlas dated 07.03 1973, title deed No. 3788 qua the area of 14 kanal 8 marla dated 07.09.1979, title the area of 14 kanal 8 marla dated 07.09.1979, title the area of 14 kanal 8 marla dated 07.09.1979, title deed No.558 qua the area of 12 kanal 13 marlas dated deed No.558 qua the area of 12 kanal 13 marlas dated deed No.558 qua the area of 12 kanal 13 marlas dated , Tehsil and 29.04.1977 situated at village Chabbha, Tehsil and 29.04.1977 situated at village Chabbha District Amritsar.” In short, perusal of Order 38 Rule 5 CPC clearly reflects perusal of Order 38 Rule 5 CPC clearly reflects that the order of attachment of property has to mandatorily preceded that the order of attachment of property has to mandatorily preceded that the order of attachment of property has to mandatorily preceded that the order of attachment of property has to mandatorily preceded by an order directing the defendant No.5 to furnish security at the first by an order directing the defendant No.5 to furnish security at the first by an order directing the defendant No.5 to furnish security at the first by an order directing the defendant No.5 to furnish security at the first instance. instance. 9. In the present case, no such order directing defendant In the present case, no such order directing defendant In the present case, no such order directing defendant towards the amount sought to be No.5/ petitioner to furnish security towards the amount sought to be towards the amount sought to be No.5/ petitioner to furnish security was ever passed in terms of Order 38 Rule 5 (1) recovered in the suit was ever passed in terms of Order 38 Rule 5 (1) was ever passed in terms of Order 38 Rule 5 (1) recovered in the suit erty in (b) CPC before passing the order of attachment of subject property in (b) CPC before passing the order of attachment of subject prop (b) CPC before passing the order of attachment of subject prop impugned exercise of powers under Order 38 Rule 5 (4) thereof, the impugned exercise of powers under Order 38 Rule 5 (4) t exercise of powers under Order 38 Rule 5 (4) t order was unsustainable in law was unsustainable in law. 10. Be that as it may, from the contents of the application Be that as it may, from the contents of the application Be that as it may, from the contents of the application under preferred at the instance of plaintiffs/ respondents No.1 and 2 under preferred at the instance of plaintiffs/ respondents No.1 and 2 preferred at the instance of plaintiffs/ respondents No.1 and 2 Order 38 8 Rule 5 CPC, it could not be even
Legal Reasoning
C, it could not be even prima facie found that that in the petitioner/ defendant No.5 was trying to dispose of what manner the petitioner/ defendant No.5 was trying to dispose of the petitioner/ defendant No.5 was trying to dispose of what manner the property forming part of the aforementioned title deeds. The the property forming part of the aforementioned title deeds. The the property forming part of the aforementioned title deeds. The the property forming part of the aforementioned title deeds. The SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [7] by plaintiffs/ respondents No.1 and 2 was apprehension expressed by plaintiffs/ respondents No.1 and 2 was by plaintiffs/ respondents No.1 and 2 was apprehension expressed nowhere substantiated as even the basic minimum facts in this substantiated as even the basic minimum facts in this substantiated as even the basic minimum facts in this regard were not even pleaded in the application. No date or month regard were not even pleaded in the application. No date or month regard were not even pleaded in the application. No date or month regard were not even pleaded in the application. No date or month knowledge about the besides any source even based on hearsay knowledge about the besides any source even based on besides any source even based on was petitioner/ defendant No.5 about to alienate the subject property was petitioner/ defendant No.5 about to alienate the subject property petitioner/ defendant No.5 about to alienate the subject property aded in the application. pleaded in the application. 11. order shows that Furthermore, a perusal of the impugned order shows that Furthermore, a perusal of the defendant No.5/ even the satisfaction recorded by the Court about defendant No.5/ even the satisfaction recorded by the Court even the satisfaction recorded by the Court petitioner going to sell the subject petitioner property is not based on any subject property is not based on any material on record. Moreover, the learned trial Court material on record failed to the learned trial Court eve failed to record its satisfaction that the petitioner/ defendant No.5 intended record its satisfaction that the petitioner/ defendant No.5 record its satisfaction that the petitioner/ defendant No.5 intended to the execution of any decree that may be passed obstruct or delay the execution of any decree that may be passed the execution of any decree that may be passed obstruct or delay . Before exercising power under this rule, the Court needs against it. Before exercising power under this rule, the Court needs . Before exercising power under this rule, the Court needs against it that there is a reasonable chance of a to be satisfied prima facie that there is a reasonable chance of a that there is a reasonable chance of a to be satis decree being passed in the suit against the defendants. The power decree being passed in the suit against the defendants. The power decree being passed in the suit against the defendants. The power decree being passed in the suit against the defendants. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power as under Order 38 Rule 5 CPC is a drastic and extraordinary power as under Order 38 Rule 5 CPC is a drastic and extraordinary power as under Order 38 Rule 5 CPC is a drastic and extraordinary power as such, should not be exercised mechanically but be used sparingly such, should not be exercised mechanically but be used sparingly such, should not be exercised mechanically but be used sparingly such, should not be exercised mechanically but be used sparingly d strictly in accordance with the Rule. and strictly in accordance with the Rule. d strictly in accordance with the Rule. 12. As per the discussion made hereinabove, in the given As per the discussion made hereinabove, in the given As per the discussion made hereinabove, in the given comply with the mandate of Order facts, the impugned order does not comply with the mandate of Order comply with the mandate of Order facts, the impugned order does no Accordingly, the revision petition is allowed. Order 38 Rule 5 CPC. Accordingly, the revision petition is allowed. Order Accordingly, the revision petition is allowed. Order 38 Rule 5 CPC. dated 15.01.2020 passed by the dated 15.01.2020 pas learned Civil Judge (Senior sed by the learned Civil Judge (Senior Division), Amritsar allowing the application filed by the plaintiffs/ Division), Amritsar allowing the application filed by the plaintiffs/ Division), Amritsar allowing the application filed by the plaintiffs/ Division), Amritsar allowing the application filed by the plaintiffs/ SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document CR-2692- -2021 (O&M) [8] respondents No.1 and 2 under Order 38 Rule 5 CPC is hereby set respondents No.1 and 2 under Order 38 Rule 5 CPC is hereby set respondents No.1 and 2 under Order 38 Rule 5 CPC is hereby set respondents No.1 and 2 under Order 38 Rule 5 CPC is hereby set aside. 13. y, shall also Pending miscellaneous application(s), if any, shall also Pending miscellaneous application(s), if an
Decision
stand disposed of. stand disposed .09.2025 17.09.2025 sanjay ( HARKESH MANUJA) JUDGE Whether speaking/reasoned ? Whether speaking/reasoned ? Whether Reportable ? Yes/No Yes/No SANJAY GUPTA 2025.09.22 17:45 I attest to the accuracy and integrity of this document