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Calcutta High Court (Appellete Side)

Swapan Guha vs Smt. Pratima Bagchi on 25 April, 2017

Author: Sanjib Banerjee

Bench: Sanjib Banerjee

                                          1



Sl. No1
25-04-2017.
  S.d.
                                 F.A 40 of 2017
                                      With
                                CAN 10095 of 2016


                                 Swapan Guha
                                        -vs-
                                 Smt. Pratima Bagchi.


                          Mr. Sabyasachi Bhattacharya
                          Mr. Hiranmoy Bhattacharya
                          Mr. Kamal Mishra
                                           ..for the appellant.

                          Mr. Probal Kumar Mukherjee
                          Mr. Suhrid Sur
                                           ..for the respondent.

The appeal arises out of the dismissal of a money claim. The short case of the appellant is that the appellant paid a sum of Rs.20 lakh to the respondent under an agreement which envisaged that the respondent would construct a building and sells flats therein and pay a sum of Rs.125 per sq. ft of the sold area to the appellant. The suit has been dismissed, primarily on the trial court's appreciation of how profits were to be calculated in the real estate business. Prima facie, it does not appear that the calculation of profit in the real estate business bore any nexus with the appellant's claim in the suit.

During the pendency of the suit, the appellant enjoyed an order for security. The security was refused by the trial court and, ultimately, this court directed security to the extent of Rs.18 lakh to be furnished. Such security was furnished and the deposit still remains.

The appellant says that the security should be directed to remain deposited till the appeal is decided. To this, the respondent joins issue and exhorts that there is no question of any security being furnished upon the money claim being dismissed. The logic of the respondent is that since the claim has been dismissed, the unimpeachable quality of the claim can no longer be asserted and, as such, the primary consideration in exercising the discretion under Order XXXVIII of the Code would not apply. At any rate, the respondent says that such an order cannot be passed at the ad interim stage and an affidavit is called for from the respondent in such regard. It is the further contention of the respondent that in the application for appropriate orders filed by the appellant, no case is made out for an order in the nature of an attachment before judgment or for security to be furnished.

The respondent refers to Order XLI Rule 5 of the Code and the instructions therein on an appellate court for complying with certain conditions before staying the operation of a decree. The respondent suggests that in an appeal from the dismissal of a 3 money claim there is no question of a stay of the operation of the order; and, as such, a security cannot be required to be furnished.

An appeal from a decree is nothing but the continuation of the suit. The authority of the appellate court is not only to re- appreciate the evidence, but also to call for fresh evidence, if the appellate court feels necessary. Since it, prima facie, appears that the appellant has a valid claim and may be entitled to the decree that the appellant seeks, the order for security that prevailed during the tenure of the suit ought to be continued till the disposal of the appeal. For such purpose, no fresh ground need be made out by an appellant in the position of the present appellant. The appellant does not have to demonstrate afresh that the situation is such as of now that there is a possibility of the respondent jumping the jurisdiction or secreting her assets to defeat the decree that may be passed. Once such conditions were found to have been met during the pendency of the suit and an order for security lasted till the suit continued, it is perfectly in order for the appellate court finding prima facie merit in the appeal to continue such order without searching for fresh conditions in a needless exercise under Order XXXVIII of the Code.

The quantum of security, however, may now have to be rationalised since the previous order for security covered merely the principal claim of the appellant. The appellant has referred to 4 dishonoured cheques of value of Rs.20 lakh. Such cheques were dishonoured some time in 2011. If the value of the dishonoured cheques be, tentatively, regarded as the extent of the respondent's indebtedness to the appellant as in 2011, with reasonable interest, the claim of the plaintiff would be well above Rs.30 lakh now. For the moment, the order for security as passed during the currency of the suit, will continue and the respondent will show cause why it should not be directed to furnish additional security such that the total quantum of security is Rs.30 lakh. The balance of convenience also demands that the security already furnished not be taken away.

The lower court records be called for.

The appeal will be heard immediately after the summer vacation. The present application will appear a fortnight hence for receipt of the response from the respondent and to consider whether the quantum of security needs to be enhanced.

The lower court records be brought by a special messenger, the costs whereof will be put in by the appellant within a fortnight from date. Paperbooks incorporating all the documents before the court below should be filed on the day after the reopening of court following the summer vacation. The appellant will have liberty to immediately mention the appeal for its inclusion within a week of the reopening.

Since the sole respondent has appeared, the appeal will be treated as ready on account of service.

(Sanjib Banerjee, J.) ( Siddhartha Chattopadhyay, J. )