Calcutta High Court
Khazana Projects & Industries Pvt. Ltd vs Jay Bharat Construction & Ors on 24 February, 2011
Author: Bhaskar Bhattacharya
Bench: Sambuddha Chakrabarti, Bhaskar Bhattacharya
APO No. 40 of 2011
GA No. 385 of 2011
CS No. 14 of 2010
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
KHAZANA PROJECTS & INDUSTRIES PVT. LTD.
Versus
JAY BHARAT CONSTRUCTION & ORS.
For Appellant : Mr.Joy Saha, Advocate
For Respondent Nos. 1-3 : Mr.Amitava Das, Advocate
For Respondent No.4 : Mr. D. K. Singh, Advocate BEFORE:
The Hon'ble JUSTICE BHATTACHARYA A n d The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI Date : 24th February, 2011.
Instead of disposal of the application we propose to hear out the appeal itself by treating it as on day's list.
This appeal is at the instance of plaintiff in a suit for declaration and injunction and is directed against order dated 22nd December, 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed an application for injunction filed by the appellant after vacating the ad interim order earlier granted. The only relief granted to the plaintiff, while disposing of 2 this application, was a direction upon the defendant no.4 to forward copies of covering letters under which payments would be made to the defendant no.1 by the defendant no.4 for the relevant project.
Being dissatisfied, the plaintiff has come up with the present appeal.
The appellant before us filed a suit in the Original Side of this Court being CS No.14 of 2010 thereby praying, inter alia, for the following reliefs:
"a. Declaration that plaintiff is entitled to 50% share of the profits of the Joint Venture and/or of all profits from the said contract dated 5th May, 2005;
b. Decree directing the defendants to render, settle and finalise the accounts of the Joint Venture and of the dealings and transactions between the parties; c. An enquiry be made into the profits earned by the Joint Venture and/or by the defendant nos. 1, 2 and 3 and a decree be passed for payment to the plaintiff of 50% of such profits as may be found to be due upon such enquiry; d. Decree for interest on the profit share of the plaintiff on and from 1st April 2007 until realization; e. Decree directing the plaintiff to be entitled to participate in the arbitration in respect of the said contract between the defendant No.4 and the defendant No.1/Joint Venture; f. Permanent injunction restraining the defendant No.4 from making any further payment in respect of the said contract to the defendant Nos. 1, 2 and 3;3
g. Permanent injunction restraining the defendant Nos. 1, 2 and 3 from receiving any further payment in respect of the said contract from the defendant No.4 or at all;
h. Receiver;
i. Injunction;
j. Attachment;
k. Costs; and
l. Further and other reliefs;"
The case made out by the plaintiff in the plaint was that there was an agreement for joint venture between the plaintiff in one hand and the defendant nos. 1 - 3 on the other for participation in a railway tender. The defendant no.1 is a partnership firm of which the defendant nos. 2 and 3 are the partners. In the suit the railway authority has been made defendant no.4. The plaintiff claimed that pursuant to such agreement the plaintiff is entitled to get 50 per cent of the share in the said venture on contribution of his money and labour, but the defendant has refused to recognize the right of the plaintiff in the said venture.
In such circumstances, the plaintiff prayed for interlocutory relief in the following form:
"(a) Injunction restraining the defendant No.4 from making any further payment in respect of the said contract to the defendant Nos. 1, 2 and 3;
(b) Injunction restraining the defendant Nos.1, 2 and 3 from receiving any further payment in respect of the said contract from the defendant No.4 or at all;4
(c) Injunction restraining the respondent Nos.1, 2 and 3 from operating and/or from withdrawing any amounts from their bank accounts;
(d) The respondent Nos. 1, 2 and 3 be restrained from opening any further and other bank accounts for the purpose of receiving any payment or cheques to be issued by the railway authority;
(e) A fit and proper person be appointed receiver for the purpose of receiving all payments to be made by the respondent No.4;
(f) The receiver to be appointed herein be directed to take charge of all bank accounts of the respondent Nos. 1, 2 and 3;
(g) The receiver to be appointed be directed to take charge or custody of all books of accounts of the respondent Nos. 1, 2 and 3;
(h) Mandatory injunction directing the respondents to disclose all particulars and documents relating to the arbitration proceedings so that the petitioner may take effective steps therein;
(i) Ad-interim orders in terms of prayers above;
(j) Costs of and incidental to the petition be paid by the respondents;
(k) Such further and other order or orders be made and/or direction or directions be given as to which the Hon'ble Court may deem fit and proper;"5
The said application for injunction was opposed by the defendant nos.1 to 3 by filing written objection thereby denying the material allegations made in the plaint and the specific defence of the defendant nos. 1 - 3 was that the agreement for the said transaction was entered into between the railway in one hand and the defendant no.1 on the other and in the said agreement, the joint venture of plaintiff and defendant nos. 1- 3 was not a party and at the same time, neither any amount of money nor any labour was contributed by the plaintiff in performing the duties entrusted to the defendant no.1 by virtue of such contract.
As indicated earlier, initially an interim order of injunction was granted but on contested hearing the learned Single Judge vacated such order with specific finding that the plaintiff had failed to prove any prima facie case to have an order of injunction. The learned Single Judge further noted that the claim of the plaintiff being basically a monetary one, no injunction could be granted as prayed for by the plaintiff.
Being dissatisfied, the plaintiff has come up with the present appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find that although there was an agreement of joint venture between the plaintiff and the defendant nos. 1 - 3, yet, it is rightly found by the learned Single Judge that so far as the transaction with the railway is concerned, the agreement was between the defendant no.1 and railway and the plaintiff had failed to prove any material indicating his participation in such project entrusted by the railway authority.
6
Learned Single Judge, in our opinion, was quite justified in holding that there is no question of allowing the plaintiff to participate in the arbitration with the railway when the plaintiff is not a party to any arbitration agreement. Over and above, the claim being purely a monetary claim, we are at one with the learned Single Judge that in this type of a suit, Court should not pass any order of injunction from realizing money from the railway when the plaintiff failed to prove any prima facie case as it cannot be said that the plaintiff would suffer irreparable loss and injury in the event the suit succeeds and injunction is refused. It is now well-settled law that in a suit for recovery of money no order of injunction should be granted the effect of which will be to pass virtually an order of attachment before judgment unless ingredients of Order 38 are present. It is needless to mention that in this case, no averment has been made in the plaint or in the application for interlocutory relief which justifies grant of injunction in the nature of attachment before judgment.
On consideration of the entire materials on record, we, therefore, find that the learned Single Judge, in the facts of the present case, rightly found that there exists no prima facie case in favour of the plaintiff and as such, it is not a fit case for grant of temporary injunction as prayed for.
The appeal is, thus, devoid of any substance and is, consequently, dismissed.
It is needless to mention that our observations are all tentative in nature and for the purpose of disposal of the present appeal against order refusing to grant injunction.
In view of disposal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. 7
Urgent xerox certified copy of this order, if applied for, be supplied to the parties within a week subject to compliance with all requisite formalities.
(BHATTACHARYA, J.) (DR. SAMBUDDHA CHAKRABARTI, J.) sm AR[CR]