Injunction

 

Statute 

1. Order XXVIII Rule 5 CPC
1. Attachment before Judgment
2. where the petitioner  seeks to execute order
3. applies to an order which lends finality to the suit and aims at preserving the state of affairs after the interim stage in the suit is over.
2. Order XXXIX Rule 1(b) CPC
1. Temporary Injunction may be granted if it is proved by affidavit or otherwise that the respondent threatens to cause injury to the petitioner in relation to any property in dispute* 
2. Where in the court may restrain such act for the purpose of preventing the alienation of property or any injury caused to the petitioner if court deems it fit to do so untill disposal of suit.
3. Wide berth to the court to grant any injunction of a temporary nature which would give a protective cover to the petitioner from suffering the consequences of any act by respondent to the property in dispute which would result in damage, wasting of or alienation of the property or the petitioner being dispense of the property.

Loan 

• an advance, whether on any monetary terms or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881

Negotiable Instrument

• has been defined as promissory note, bill of exchange or cheque payable either to order or to bearer

Case Law

1. Harleen Jirath Vs Prabha Surana 2019(4) CHN(cal) 412
1. Drawing a distinction between Order XXXVIII Rule 5 and Order XXXIX Rule 1(b) CPC 1908
2. Raman Tech & Process Eningeering Co Vs Solanki Traders (2008) 2 SCC 302
1. Purpose of Order XXXVIII Rule 5 is not to convert an unsecured debt into a secured debt