Calcutta High Court (Appellete Side)
Alok Kumar Banerjee & Ors vs Rajib Guha & Ors on 18 September, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ashis Kumar Chakraborty
F.M.A.T. No. 950 of 2017
With
CAN No. 8199 of 2017
Alok Kumar Banerjee & Ors.
-Versus-
Rajib Guha & Ors.
For the Appellants :Mr. Raja Basu Chowdhury,
Mr. Kallol Saha,
Mr. Tanmoy Chakraborty,
Mr. Abhishek Singh
For the Respondent No. 1 :Mr. Probal Kumar Mukherjee,
Mr. Sanjoy Mukherjee For the Respondent nos. 2-3 : Mrs. Sayani Roy Chowdhury Heard on: 18th September, 2017.
Judgement on: 18th September, 2017.
Jyotirmay Bhattacharya, J. :-
This First Miscellaneous Appeal is directed against an order being No. 2 dated 9th August 2017 passed by the Learned 2 Civil Judge (Senior Division), 2nd Court at Howrah in Title Suit No. 356 of 2017 at the instance of the defendants/appellants.
This appeal will be heard.
Lower court records need not be called for.
Since all the respondents are now before this court and they are represented by their learned advocates, service of notice of appeal upon the respondents is dispensed with. The appeal thus be treated as ready as regards service.
In Re:- Application for stay being CAN No. 8199 of 2017. After the appeal was admitted, when we are taking up the application for stay filed by the appellants in connection with this appeal, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merits on the basis of the materials available before us.
We are informed by the learned advocate for the parties that all relevant papers which are necessary for disposal of the appeal are annexed to the stay application.
3On such prayer being made, we have decided to dispose of the appeal by dispensing with the requirement of filing paper books in this appeal.
Let us now consider the merits of the instant appeal in the facts of the instant case. By the impugned order, the following ad interim injunction was passed by the learned trial court:-
"The defendants are hereby restrained from operating the Account No. 916020049656587 lying with the defendant nos. 4 and 5 and not to change the signatories of the defendant no. 5 in giving effect to the Board resolution dated 17th July 2017 till 23- 08-2017."
Here in this appeal we find that admittedly the plaintiff, defendant no.1 and defendant no. 2, are Directors of A.K. Hirise Private Limited, the defendant no. 3. It is also an admitted fact that the plaintiff is the authorised signatory of the said Company for operating the Bank Account of the Company. Subsequently, by a resolution adopted in the Board meeting on 17th July 2017, the authorised signatory was changed and the defendant nos. 1 and 2 were nominated as the authorised signatories for operating 4 the Bank account of the defendant no. 3, Company. The resolution adopted in the said Board meeting on 17th July 2017 remains unchallenged. As such, the plaintiff cannot operate the Bank account of the defendant no. 3, Company. However, by the interim order of injunction, the defendants are restrained from operating the Bank account of the defendant no. 3, as a result, the defendant no. 3 cannot run its business. The defendants have not yet appeared in the suit. They have also not yet filed any objection to the plaintiff's application for temporary injunction. The defence, which the said defendants will put up in the suit as well as in the injunction proceeding, is still unknown to the court. In such circumstances, we feel that justice will be sub-served if some interim arrangement is made by this court so that the defendant no. 3, Company can run its business and at the same time the plaintiff's claim in the suit is secured. We, thus, permit the Bank Account of the defendant no. 3, namely Current Account No. 916020049656587 with the Axis Bank Limited, the respondent no. 4 herein to be operated by the authorised signatories in terms of the resolution adopted in the 5 Board meeting on 17th July 2017 by maintaining minimum balance of Rs. 20 lakhs in the said Bank account with this rider that the said Company will be permitted to withdraw an amount from the said Bank account which the Company requires to run the day-to-day business of the said Company. This arrangement will continue until disposal of the plaintiff's application for temporary injunction.
We, thus, clarify that the plaintiff/appellant will not be permitted to operate the said Bank account. The impugned order is modified to the above extent.
Leave is granted to the defendants-respondents to file affidavit-in-opposition to the plaintiff's application for temporary injunction within two weeks after the reopening of the court after the Puja Vacation. Reply, if any, be filed by the plaintiff-appellant within a week thereafter.
We request the learned trial judge to dispose of the plaintiff's application for temporary injunction, preferably by the end of December of this year.
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We make it clear that while disposing of the plaintiff's application for temporary injunction, the learned trial judge will be free to decide the plaintiff's application for temporary injunction on its own merit and according to his own wisdom without being influenced by any of the observations made hereinabove and/or the interim arrangement, which we have made hereinabove.
Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.
The application for stay being CAN No. 8199 of 2017 is thus, deemed to be disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately. pk (Jyotirmay Bhattacharya, J.) (Ashis Kumar Chakraborty, J.)