1. This appeal is filed by the present appellant against the order dated 26.9.2011 passed by learned Additional Senior Civil Judge, Gondal below Exh.5 application preferred in Special Civil Suit No.3 of 2011, whereby the Exh.5 application was rejected. The present appellant is the original plaintiff and the present opponents are the original defendants in Special Civil Suit No.3 of 2011 and for the sake of brevity, the parties are referred to as the plaintiff and defendants respectively.
2. The brief facts leading to filing of this appeal are such that the defendant no.1 firm is a partnership firm which is engaged in the business of printing and dyeing of sarees and defendants no.2 and 3 are its partners and they are the relatives of the plaintiff. As per the case of the plaintiff, as the defendant no.1 firm was in need of funds for short term, defendant no.2 approached the plaintiff for and on behalf of defendant no.1 as well as its other partners and requested him to arrange for funds of Rs.10,00,000/-. However, as the plaintiff had Rs.9,50,000/- with him, he lent the same to the defendant no.2 for 15-20 days. The plaintiff states that after 20-25 days, when he demanded his money back, the defendant no.2 issued cheque of defendant no.1 by signing on the same which was drawn on The Rajkot Cooperative Bank Limited, Kanakia Plot Branch, Jetpur bearing no.276678 dated 16.11.2010 for the amount of Rs.9,50,000/-. When the plaintiff deposited the said cheque with the HDFC Bank on 16.11.2010, the same returned dishonoured with the endorsement “Account Closed”. Once again, the plaintiff deposited the said cheque on 18.11.2010 and the same was returned dishonoured with the endorsement “Account Closed”. The plaintiff further states that he issued statutory notice to defendant no.2 in his capacity as partner of defendant no.1 on 29.11.2010 under the provisions of Negotiable Instruments Act. As defendant no.2 failed to pay due and outstanding amount despite service of notice issued to him, suit was filed by the plaintiff along with Exh.5 application praying for interim relief restraining defendants from disposing of the property mentioned in the plaint in any manner by way of sale, mortgage, gift etc. or making change in present title and possession of the property as well as creating any hindrance in their peaceful enjoyment thereof, till final disposal of the suit. The plaintiff gave precise details of immovable properties held by defendant nos.2 to 5 and stated that defendants are trying to dispose of their immovable properties so as to deprive him of his legitimate dues and therefore also he is constrained to file the suit along with the injunction application. The learned trial Judge, after giving opportunity of hearing to both the parties, rejected the Exh.5 application against which this appeal is filed.
3. Heard learned advocates for the parties and perused the papers.
4. Learned advocate Mr.Trivedi for the appellant-plaintiff submits that the trial Court has committed error in holding that no receipt of the said amount is produced by the plaintiff nor any books of accounts are produced. He also submits that defendant no.2 has issued cheque which amounts to receipt and so the trial Court has committed error in not relying on this documentary evidence and came to the wrong conclusion that plaintiff has not produced any receipt. He also submits that the trial Court has committed error in holding that in which capacity defendant no.2 has received money from the plaintiff and therefore committed error in rejecting the injunction application.
5. Learned advocate Mr.Thakore submits that the order passed by the trial Court is legal and proper and need not be interfered with.
6. On perusing the averments made in the injunction application, it seems that notice was issued only to defendant no.2 and not to other partners. The defendants no.2 and 3 have denied the entire allegations made by the plaintiff in the suit and have contended that they have not borrowed any money from the plaintiff and therefore there is no question of repayment. Considering the averments made in the plaint and the denial of the defendants, the learned trial Court has rightly held that at this juncture, without recording the evidence, it cannot be decided that ingredients of Order XXXIX Rule 1 of CPC are not fulfilled and so the plaintiff is not entitled to get any relief as prayed for. Further, except bare statements in the plaint, the plaintiff has not produced any evidence on record which shows that the defendants are likely to dispose of the property with ulterior motive to frustrate the decree, if passed in favour of the plaintiff. It is an admitted fact that the suit is filed for recovery of amount and it could be termed as money suit and in exceptional circumstances where it is prima facie established by the plaintiff that only with an intention to frustrate the decree of the suit, defendants are trying to dispose of the property and if the Court is prima facie satisfied about the same, then only the injunction is required to be granted against the defendants. Here, in this case, as discussed above, there are no such exceptional circumstances which prima facie show that the defendants are trying to dispose of the property with ulterior motive to deprive the plaintiff from getting the fruits of the decree, if ultimately passed in favour of the plaintiff and, therefore, the trial Court has rightly rejected the injunction application and same need not be required to be interfered with by this Court.
( M.D.Shah, J ) srilatha