IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP No. 1009 of 2025 In Civil Suit No. 51 of 2024. Reserved on : 31st July, 2025 Decided on : 6th August, 2025 Rameshwar Shah …...Plaintiff/applicant. Versus M/s GRHM Hotel Pvt. Ltd. …Defendant/Respondents. Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the plaintiff/applicant: Mr. Tarunjeet Singh Bhogal, Advocate. For the Defendant/respondent: Mr. Ajay Kumar, Senior Advocate with Mr. Rohit, Advocate. Satyen Vaidya, Judge This application has been filed under Order XXXVIII Rule 5 read with Section 151 of the Code of Civil Procedure (for short “the Code”) with following prayer:- “It is, therefore, most respectfully prayed that the application preferred by the plaintiff may kindly be allowed and the defendant may kindly be restrained from changing the nature, possession, title and 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ownership or disposing off land and/or structure comprised in Khata Khatauni No. 20/27, Khasra No.406/390/348/306/2, measuring 1 bigha 7 biswas situated at Mohal Tikari, Tehsil Kandaghat, District Solan until the pendency of the present suit, or in the alternate, order the defendant to furnish adequate security before this Hon’ble Court to satisfy the decree that may be passed in favour of the plaintiff.” 2. The applicant/plaintiff has filed a suit against defendant for recovery of Rs.1,63,41,333/- along with future interest @18% per annum. 3. The applicant/plaintiff claims himself to be a contractor. It is averred that the defendant had awarded the construction work of his hotel to plaintiff vide agreement dated 28.07.2023. It is further submitted that another agreement dated 19.09.2023 was executed between the parties, whereby scope of initially agreed work was widened. 4. The case as set up by the plaintiff is that on the basis of aforesaid agreements, he started construction work, but he did not receive his running payments within time. He had to raise a loan of Rs.27 lakhs to continue with the construction work. 3 5. Plaintiff is further stated to have completed work to the tune of approximately Rs.38 lakhs, whereas, only Rs. eight lakhs have allegedly been paid to him by the defendant. 6. The plaintiff has also shown grievance against rescission of the contract by defendant vide notice dated 07.11.2023. 7. In the aforesaid backdrop, the suit amount has been calculated under following heads: - a. Amount of work done Rs.31,20,333/- b. Mental harassment and stress Rs.50,00,000/- c. Loss of profit Rs.57,00,000/- d. Interest on loan raised Rs.25,00,000/- e. Interest @18% on aforementioned amounts f. Cost of legal Notice Rs.21,000/- Total (excluding interest) Rs.1,63,41,333/- 8. The applicant/plaintiff has further averred that the defendant is about to dispose of the whole or part of his property comprised in Khata Khatauni No. 20/27, 4 Khasra No.406/390/348/306/2, measuring 1 bigha 7 Biswas situated at Mohal Tikari, Tehsil Kandaghat, District Solan, which is the property on which the defendant is raising construction of a hotel. As per the applicant/plaintiff, the defendant is trying to dispose of the above noted property to evade legitimate dues of plaintiff/applicant and with intent to obstruct or delay the execution of any decree that may be passed against him. It is further submitted that in case the defendant is not restrain from alienating the property, applicant/plaintiff will suffer irreparable loss and injury and the recovery of the amount due to him may become extremely difficult. 9. Reply has been filed to the application. It has been submitted that the suit of the plaintiff is based on illusory, non-existent, imaginary and self-invented alleged remote loss/damages which is not permissible under law. It has also been contended that the suit is not based upon any actual damages suffered by the plaintiff. The non- applicant/defendant has sought justification of his action in rescinding the contract with plaintiff on the ground that 5 the plaintiff had failed to execute the work in terms of the contract. As regards, allegations with respect to intended sale of property by defendant, it has been submitted that the suit property is mortgaged with Punjab National Bank, Shoghi against a loan of Rs. Two Crore. 10. I have heard learned counsel for the parties and have also gone through the entire record carefully. 11. Rule 5 of Order XXXVIII of the Code empowers the Court to issue direction against the defendant 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, where, at any stage of a suit, the Court is satisfied, that the defendant with intent to obstruct or delay the exe- cution of any decree that may be passed against him is about to dispose of or remove the whole or any part of his property from the local limits of the jurisdiction of the Court. 6 12. The applicant/plaintiff has made a vague aver- ment that the defendant is about to dispose of the prop- erty mentioned in the application. The defendant has specifically replied that the property referred to in the ap- plication has already been mortgaged with the Punjab Na- tional Bank, Shoghi. There is no rebuttal to this factual aspect of the matter. 13. Except for the bald averment, there is nothing in the application to suggest the basis on which the appli- cant/plaintiff has formed the opinion. In every case for re- covery of amount, the power under Rule 5 of Order XXXVIII of the Code cannot be exercised at the ipse dixit of plaintiff. The court has to record its satisfaction regarding existence of jurisdictional facts to exercise power under the aforesaid provision. In the instant case, since, the plaintiff/applicant has failed to produce any material to support his contention, thus, there is nothing before the Court to get satisfied about the apprehension expressed by the plaintiff. 7 14. Further, the applicant/plaintiff has not made any mention or disclosure regarding all the properties owned by the defendant. It is also not the case of the plaintiff/applicant that the property mentioned in the ap- plication is the only property owned by the defendant. Rule 5 of Order XXXVIII speaks about the disposal of whole or any part of the property and the purpose is to se- cure the interest of the plaintiff in the facts of a given case. Thus, on this count also the plaintiff has failed to satisfy the Court that his interest will be jeopardized by alienation of the property mentioned in the application. 15. The applicant/plaintiff has failed to make out a case for indulgence by this court under order XXXVIII rule 5 of the Code. In result, the application fails and is accord- ingly dismissed. (Satyen Vaidya) 6th August, 2025. Judge (jai)