Calcutta High Court
Nagori Ply Arcade Ltd vs Punjab National Bank on 5 July, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
ORDER SHEET
GA 2407 of 2016
GA 2773 of 2016
CS 293 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
NAGORI PLY ARCADE LTD.
Versus
PUNJAB NATIONAL BANK
BEFORE:
The Hon'ble JUSTICE SAHIDULLAH MUNSHI
Date : 5th July, 2017.
Appearance:
Mr. Ratananko Banerjee, Adv.
Mr. Shaunak Mitra, Adv.
Mr. Sanjoy Jhunjhunwala, Adv.
...for the plaintiff
Mr. Joy Saha, Sr. Adv.
Ms. Shyantee Dutta, Adv.
Ms. Samita Das Chowdhury, Adv.
...for the defendant
The Court : Both the applications being GA 2407 of 2016 (application for
amendment) and GA 2773 of 2016 (application praying for an order directing the
defendant to furnish the security of rupees one crore seventy-five lakh) are taken
up together. However, for convenience, GA 2407 of 2016 is taken up first. G.A.
2407 of 2016 has been filed in C.S. No.293 of 2014 by the defendant, Punjab
National Bank, praying for amendment to the written statement filed by it earlier.
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It is stated that the defendant filed a written statement on 17th November, 2014.
Subsequent to the filing of the written statement certain events occurred which
are extremely relevant and material for the purpose of adjudication of the issues
involved in the suit and, according to the defendant, those subsequent events
should be incorporated in the written statement by way of amendment and the
defendant prays for filing additional written statement on such amendment being
allowed.
According to the defendant, subsequent to the institution of the suit
plaintiff filed an application being G.A. No.2490 of 2014 and made the following
prayers :
"(a) Injunction restraining the respondent and/or its men, servants, agents
or assigns from disposing of, alienating, transferring and/or encumbering the said properties, particulars whereof are given in annexure "C" hereto in any manner whatsoever, excepting in favour of the petitioner;
(b) Ad interim order of stay of operation of the letter dated 8th July, 2014;
(c) Injunction restraining the respondent from acting and/or relying on the letter dated 8th July, 2014;
(d) A Receiver be appointed to make inventory and take possession of the said properties, particulars whereof are given in annexure "C" hereto;
(e) Ad-interim orders in terms of prayers above;
(f) Costs of and incidental to this application be paid by the respondent;
(g) Such further order or orders be passed and/or direction or directions
be given as this Hon'ble Court may deem fit and proper."
The said application was allowed by an order dated 27th August, 2014 by a Hon'ble Single Bench of this Court. In the said order it was recorded by the 3 Hon'ble Single Judge that the plaintiff deposited earnest money and was ready and willing to deposit the balance consideration. It was, prima facie, appeared before the Hon'ble Judge that the defendant Bank was unable to convey the property and in view thereof, the Hon'ble Judge restrained the defendant from dealing with and/or encumbering and/or disposing of the property in question until further orders.
An appeal was carried out from the said order dated 27th August, 2014 under A.P.O.T. No.529 of 2014. An application being G.A. 3056 of 2014 was filed in connection with A.P.O.T. No.529 of 2014 by the appellant/defendant and the Hon'ble Division Bench, by an order dated 26th September, 2014, directed the plaintiff to deposit a sum of Rs.1 Crore with the Registry of the High Court at Calcutta within a limited period of time. The order being not carried out by the plaintiff by a subsequent order dated 28th November, 2014, the Hon'ble Division Bench observed that the order of injunction passed by the Hon'ble Single Judge would no more be operative in between the parties. According to the defendant, order dated 22nd August, 2014, passed in G.A. No.2490 of 2014 stood vacated.
Mr. Saha, learned senior advocate appearing on behalf of the defendant Bank, submits that failure on the part of the plaintiff to deposit the said sum of Rs.1 Crore also demonstrates the plaintiff's failure to show its ready and willingness to purchase the said property. Such submission has been seriously disputed by Mr. Banerjee, learned senior advocate appearing for the plaintiff. Mr. Saha further submits that after the aforesaid order dated 28th November, 2014, the borrowers of the Bank approached the defendant Bank for a settlement of the 4 matter and in pursuance whereof the Bank, in its meeting held on 13th April, 2015, agreed to settle its disputes with its borrower for a total sum of Rs.1 Crore 75 Lakh. Mr. Saha submits that the Bank made payment of the entire settled amount together with interest for the delayed period and thus the entire claim of the Bank against the petitioner has been settled. He relies on a letter of the Bank written on 17th April, 2016 to this effect. He also submits that acceptance of the said settlement and the terms and conditions thereof contained in an internal letter of the Bank dated 16th April, 2015. Acceptance of the said settlement offered by the borrower was duly communicated by the Bank to the borrower by its letter dated 17th April, 2015.
It is the case of the defendant Bank that the said amount of the borrower being fully settled, the Bank filed an application before the Debts Recovery Tribunal - I, Kolkata, praying, inter alia, that the proceedings pending before the said Tribunal be permanently dropped. According to Mr. Saha, since the Bank and its borrower having not been settled and the borrower having made payment of the entire dues of the Bank, the Bank no longer has any mortgage or security in respect of the said property and the total dues thereof are to be returned to the borrower and as such, there can be no sale of the said property in favour of the plaintiff.
In such background of the development arose subsequent to the filing of the written statement by the Bank Mr. Saha submits that those subsequent development must be brought on record for proper adjudication of the suit. 5
The prayer for amendment by the defendant Bank is seriously opposed by Mr. Banerjee, learned senior advocate appearing for the plaintiff. He submits that although, the incorporation sought to be introduced by way of amendment in the form of subsequent events, but such subsequent events have no impact on the suit filed by the plaintiff. According to Mr. Banerjee, the written statement which has been field, is sufficient to deal with the pleadings made in the plaint. He submits that the attempt is frivolous one particularly that despite order for expeditious hearing such an attempt has been taken by the defendant for the obvious reason to delay the hearing of the suit. Mr. Banerjee submits that it is an undisputed position that pursuant to sale notice the plaintiff offered to purchase the property under sale. The defendant Bank has accepted the earnest money way back in 2008 and on the defendant's unwillingness to execute a Deed of Conveyance in favour of the plaintiff despite its readiness and willingness, the plaintiff had to file the suit praying for specific performance of contract. According to Mr. Banerjee, the entire attempt is to frustrate the plaintiff's suit. The attempt made by Mr. Saha's client praying for amendment is opposed by filing an opposition affirmed on 16th September, 2016. In the said opposition the plaintiff has alleged that the settlement referred to by Mr. Saha's client in his affidavit seeking amendment is not genuine which would be evident from the fact that Bank's letter dated 16th April, 2015 itself will show that the total recoverable dues from Chinky Plastics Pvt. Ltd. was in excess of Rs.2.42 Crore and as per the respondent Bank's own purported valuation, the property was valued at approximately Rs.2 Crore. According to Mr. Banerjee, in such circumstances 6 there can be no justifiable reason for the respondent Bank agreeing to allegedly settle with the borrower for a sum much below the Bank's own valuation of the property. Mr. Banerjee alleges that there must be some hidden understanding between the parties to frustrate the plaintiff's claim.
Mr. Banerjee has also contended that the proposed amendments are belated one. According to him, alleged settlement was purportedly arrived sometime in April, 2015. There is no reason given in the application for approaching this Court by way of instant application to amend the written statement at such a belated stage and further that the purported documents relied on relating to the alleged settlement with Chinky Plastics Pvt. Ltd., are not genuine. Mr. Banerjee submits that the proposed amendments in the written statement of the defendant in the suit are motivated and cannot be permitted to be made. According to him, defendant Bank has effectively dealt with the property in question to the detriment and exclusion of the plaintiff. According to Mr. Banerjee, plaintiff is entitled to the conveyance in respect of the properties in terms of the contract dated 18th March, 2008 and his client is entitled to specific performance of the said contract which the defendant has wrongfully refused to perform his part of obligation under the contract. Mr. Banerjee submits that the alleged settled transaction between the defendant Bank and its borrower is a sham transaction which is evident from the facts disclosed in the affidavit itself. He submits that the defendant Bank cannot be permitted to rely on the said settlement and to incorporate those subsequent events into the pleadings of the 7 written statement by way of amendment as the attempt itself is to frustrate the plaintiff's claim.
I have gone through the pleadings of the plaintiff in the plaint wherein the plaintiff has claimed that by issuing a letter dated 18th March, 2008, the defendant unequivocally accepted the offer of the plaintiff for purchase of the properties and created a binding contract with the plaintiff in that regard. On 18th March, 2008, the defendant issued letter intimating the plaintiff that the tender price of Rs.61 Lakh offered by the plaintiff for purchase of the said property was accepted subject to payment of the entire amount in accordance with the terms and conditions of sale. According to the plaintiff, terms and conditions relating to sale of the properties, inter alia, provided that the successful bidder declared to be purchaser, should pay forthwith after such declaration, 25% of the purchase price (i.e, 25% of the amount of bid accepted by the authorized officer including the earnest money deposit already made); the purchaser would also purchase the assets on 'as is where is basis' upon payment of the purchase price in full and all costs, charges and expenses mentioned in the terms and conditions, the authorized officer or his authorized representative would execute such papers and documents as may be necessary for transfer of the said property in the name of the purchaser; successful bidder would also be required to sign on agreement to complete the same.
According to the plaintiff, it issued a cheque dated 18th March, 2008 amounting to Rs.9,56,500/- (Rupees Nine Lakh Fifty Six Thousand Five Hundred) only, in favour of the defendant Bank drawn on IDBI Bank, Brabourn 8 Road, Kolkata - 700001, being the balance sum of 25% of the said amount taking into account the earnest money deposit already made. According to the plaintiff, it issued a letter dated 31st March, 2008 to the defendant enclosing a cheque dated 31st March, 2008 for a sum of Rs.45,75,000/- (Rupees Forty Five Lakh Seventy Five Thousand) only, drawn in favour of the defendant being the full and final consideration of the sale price of the properties. However, the defendant issued a letter dated 1st April, 2008 to the plaintiff alleging that by virtue of an order dated 27th March, 2008 passed by the learned Debts Recovery Tribunal, Kolkata, the defendant was not in a position to receive the balance payment until further orders were passed by Debts Recovery Tribunal and that is how the suit was filed by the plaintiff.
I have perused the original written statement filed by the defendant Bank. It is the stand of the defendant that upon the cheque for Rs.45,75,000/- (Rupees Forty Five Lakh Seventy Five Thousand) only, being returned to the plaintiff by the defendant, the plaintiff took advantage thereof and never insisted that the said cheque should be accepted and encashed and the property should be made over to the plaintiff on 'as is where is basis'. According to the written statement, the plaintiff has taken advantage of the disputes between the defendant and its borrower. The defendant has denied that the plaintiff is entitled to the said properties upon payment of Rs.45,75,000/- (Rupees Forty Five Lakh Seventy Five Thousand) only, as alleged. It has denied that the defendant owes any duty or obligation to the plaintiff to execute a Deed of Conveyance in favour of the plaintiff.
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An amendment would generally not to disallow except where a time-barred claim is sought to be introduced. It may be disallowed in a case where it changes the nature and character of the suit itself or it is mala fide or the other side has lost sight of a valid defence by subsequent event. Mere delay and laches as sought to be pointed out by the plaintiff-respondent, is also not sustainable to refuse amendment. Amendment is discretionary matter and, although, amendment at a late stage is not to be granted as a matter of course, the Court must hold in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed can be compensated by cost or otherwise. However, in the present case, trial has not yet commenced and delay as pointed out by the plaintiff-respondent is not of substantial delay nor is it the case that by such amendment any right accrued to the plaintiff is being taken away.
Order VI, Rule 17 of the Code of Civil Procedure confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceeding and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. In this case, although, there is a direction from the Appellate Court that the suit should be expeditiously disposed of but such direction ipso facto does not debar the 10 defendant to amend his pleading on a proper cause which is to bring on record the subsequent events happened during the pendency of the suit. Therefore, the approach made by the defendant to amend the written statement deserves to be allowed. The circumstances in which the said amendments have been sought is based on justifiable ground and, therefore, I am not inclined even to impose any cost in allowing such prayer for amendment. The settled principles which are required to be considered for adjudication of an application for amendment are -
i) Whether the defendant has sought to change the nature and character of the suit by virtue of the amendment'
ii) Whether any inconsistent plea has been taken by the plaintiff by way of amendment;
iii) Whether any accrued right is sought to be taken away by virtue of the proposed amendment.
If these situations do not appear then Court will be reluctant to refuse the prayer for amendment. It is the settled principle of law that Courts are more generous in allowing the amendment of written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take even an alternative plea in defence which, however, is subject to an inspection that by the proposed amendment other side will not be subjected to injustice and that any admission made by the defendant would not stand withdrawn by the proposed amendment. Therefore, I am inclined to allow the prayer for amendment of written statement filed by the defendant-petitioner. 11
On perusal of the written statement filed by Mr. Saha's client and the present affidavit filed under G.A. 2407 of 2016, it does not in any way convince this Court that the stand taken by the defendant to amend the written statement in any way shows to be mutually destructive or that any stand taken in the proposed amendment may either change the nature and character of the original written statement or the defence taken in the original written statement or the defence taken in the original written statement by the defendant Bank. It also does not appear and cannot be disputed by Mr. Banerjee's client that the incorporation sought to be made by Mr. Saha's client by way of additional amendment is not the subsequent events related to the facts emanating from the pleading made in the original written statement.
It is the settled law that subsequent events after filing of a suit are always to be brought on record and if necessary, amendment may be carried out, which is the subject matter of the present case and I find no hesitation to allow the prayer made by Mr. Saha's client for incorporation of the proposed amendment sought to be made in the written statement save and except paragraph M at page 34 and paragraph Q at page 36 of the proposed amendment. So far the statements made in paragraph M of the proposed amendment, it is a matter of record which will be evident from the Court's order and this is not required to be incorporated in the pleading by way of amendment. The stand taken in paragraph Q, although, may be considered to be a subsequent event, but, it is contrary to the stand earlier taken by the defendant in the original written statement and such stand will change the nature and character of the suit. 12
Therefore, I decline to allow incorporation of paragraph Q of the proposed amendment. Save and except paragraph M and Q as aforesaid, the proposed amendment is allowed.
The department is directed to incorporate the amendments in the original written statement filed by the defendant within a fortnight.
Application being G.A. 2407 of 2016 is disposed of, however, without any order of costs.
G.A. 2773 of 2016 has been filed by the petitioner who is the plaintiff in C.S. 293 of 2014. In the aforesaid suit the petitioner has, inter alia, made the following prayers :
"a) Decree for specific performance of the contract as contained in the letter of acceptance dated March 18, 2008, being annexure-H hereto;
b) A decree for specific performance directing the defendant to execute and register a Deed and/or Deeds of Conveyance in respect of the said properties, particulars whereof are mentioned in Annexure "C"
hereto, in favour of the plaintiff within such time as this Hon'ble Court may deem suitable;
c) Decree for mandatory injunction directing the defendant to execute the Deed of Conveyance for sale of the said property, particulars whereof have been given in Annexure-C to the plaint;
d) Decree for perpetual injunction restraining the defendant from alienating, disposing of and/or in any manner dealing with the said property except for the purpose of execution of a Deed of Conveyance in favour of the plaintiff;
e) Decree that the letter dated July 8, 2014 is illegal, null and void;
f) Decree that the letter dated July 8, 2014 be adjudged void and be delivered up for cancellation;
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g) Decree for perpetual injunction restraining the defendant from relying on or giving any effect or further effect to the letter dated July 8, 2014;
h) Decree for a sum of Rs.50,00,000/- as claimed in paragraph 33 hereinbefore;
i) Alternatively, an enquiry into the loss and damages suffered by the plaintiff and a decree for such sum as may be found due upon such enquiry;
j) Decree for perpetual injunction restraining the defendant from parting with or dealing with in any manner the original title deed with regard to the said property, particulars whereof have been given in Annexure- C to the plaint except for the purpose of handing over the same to the plaintiff;
k) Injunction;
l) Receiver;
m) Attachment before judgment;
n) Costs;
o) Further or other reliefs."
On an interlocutory application filed by the plaintiff one of the Hon'ble Single Judges of this Court was pleased to pass an order on 27th August, 2014 restraining the defendant from dealing with and/or encumbering and/or disposing of the property in question until further orders. An appeal therefrom being A.P.O.T. No.529 of 2014 was filed and on an application for stay filed by the respondent the Hon'ble Division Bench observed that in the interest of justice the plaintiff should deposit a sum of Rs.1 Crore within four weeks with the Registry of High Court at Calcutta with a prayer that the suit be disposed of within six months. The appeal was disposed of. By a subsequent order dated 28th November, 2014 the Hon'ble Division Bench held that if the plaintiff fails to 14 deposit the said amount, the benefit, if any, accrued to the plaintiff by depositing the above amount within the stipulated time could not be extended to him. He should not have allowed the benefit of the order of injunction granted by the Trial Court. After recording an order that in the event of failure on the part of the plaintiff to deposit the said sum of Rs.1 Crore as directed by the aforesaid order dated 26th September, 2014, the plaintiff may not have the benefit of continuing with the order of injunction passed by the Hon'ble Trial Court, the respondent bank filed an application before the Debts Recovery Tribunal in a pending proceeding being case no.SA/23/2008 (United Bank of India - Vs. - Punjab National Bank & Ors.) for early hearing on the ground that the bank was suffering an order of status quo. As it could be conceived from the averments made in the application before the Debts Recovery Tribunal, the bank filed the application with a plea that the petitioner being highest bidder, had given only 25% of the bid amount for sale of the suit property by Punjab National Bank and balance amount could not be obtained in view of a mortgage of the suit property. However, since the petitioner/auction purchaser was not a party to the proceeding, Punjab National Bank was directed to inform the auction purchaser to appear positively on a next date of hearing. It is the grievance of the petitioner that despite such order Punjab National Bank kept the highest bidder in dark and taking advantage of the petitioner's absence before the Debts Recovery Tribunal got case no. S.A. 23 of 2008 re-numbered as T.S.A. 13 of 2015, transferred before the Debts Recovery Tribunal- III from Debts Recovery Tribunal-II, Kolkata. Ultimately, by an order dated 31.03.2005 the Debts 15 Recovery Tribunal - III, Kolkata, passed its final order and held that there is no stay existing and respondent no.1, Punjab National Bank would be at liberty to take a fresh auction for sale of the property as per the rules under SARFAESI Act, 2002.
Mr. Banerjee, learned counsel appearing for the petitioner, submits that taking advantage of the order passed by the Debts Recovery Tribunal - III, Kolkata, behind his client's back, the respondent Punjab National Bank, in a deceptive manner with a fraudulent attitude, has entered into a settlement for sale of the property with Chinky Plastics Private Limited, a defaulting borrower of the respondent bank and has received a sum of Rs.1 Crore 75 Lakh. Mr. Banerjee submits that on perusal of the SARFAESI application filed by United Bank of India being the applicant in T.S.A. 30 of 2015 it would appear that SARFAESI applicant granted a loan of Rs.3 Crore to one M/s. Tarun Enterprise Private Limited vide sanction letter dated 26th September, 2005 and the loan was secured by the mortgage of the properties. According to Mr. Banerjee, if this is the position, respondent bank cannot go for one-time settlement with Chinky Plastics Private Limited, borrower of the property to have the matter settled with the respondent in lieu of 1.75 Crore only and Punjab National Bank being a nationalized bank, cannot act prejudicially to public interest. Mr. Banerjee submits that since he is the highest bidder and according to the terms of the agreement, he has already deposited the earnest money and accepted by the respondent bank, it is only because of the order of status quo the bank refused to accept the balance consideration money and refused to complete sale in favour of 16 the petitioner. But, since there is no embargo now in view of the fact that the SARFAESI application has already been dismissed, the petitioner sought for decree for specific performance by the aforesaid suit. According to Mr. Banerjee, the respondents are delaying hearing of the suit on some pretext or the other despite the direction for expeditious hearing passed by the Hon'ble Division Bench of this Court and keeping the suit pending they are trying to sale the property in favour of some other person to defraud the claim of the petitioner. Mr. Banerjee submits that his client has, therefore, by this application, prayed for securing the said sum of Rs.1 Crore 75 Lakh. It is the amount settled between the respondent bank and Chinky Plastics Private Limited. The petitioner has prayed that the respondent bank should furnish a security with the Registrar, Original Side for the said sum of Rs.1 Crore 75 Lakh. Mr. Banerjee further submits that it is already recorded by the Debts Recovery Tribunal in its various orders that the property has been sold to the petitioner. Therefore, if any gain is made from the said property, it would be reasonable for the plaintiff to pray for securing the said amount. According to Mr. Banerjee, since respondent bank has received a sum of Rs.1 Crore 75 Lakh as one-time settlement with its borrower Chinky Plastics Private Limited, there can be no reason to disallow the petitioner's prayer for securing the said amount with the Registrar of Original Side of this Court.
Mr. Banerjee has cited a decision in the case of Sarvinder Singh - Vs. - Dalip Singh & Ors., reported in (1996) 5 SCC 539. By citing the said judgment Mr. Banerjee reiterated that during pendency of the suit even a property is 17 alienated, the same is hit by the doctrine of lispendens despite the fact that injunction was granted in favour of the plaintiff restraining the defendant from interfering with his possession and enjoyment of the land was vacated on a subsequent date before the alienation was made. There is no dispute about the proposition and the submissions made by Mr. Banerjee. It cannot be disputed that simply because the order of injunction was lifted, the petitioner's case for specific performance will come to an end simply because in absence of any injunction the defendant might create a third party interest in respect of the suit property.
Mr. Banerjee has also cited another decision in the case of Smt. Muktakesi Dawn & Ors. - Vs. - Haripada Mazumdar & Anr., reported in AIR 1988 Cal 25. This judgment is based on the principle that an injunction should be rejected restraining pendentelite transfer as the rule of lispendens as enacted in Section 52 of the Transfer of Property Act is there to take care of such transfer. However, ratio decided in those judgments cited by Mr. Banerjee may help him in the trial of the suit but, I am afraid, those can have any manner of application in deciding the present application.
Mr. Saha, learned Senior Counsel appearing for the respondent, has disputed the stand taken by Mr. Banerjee's client by filing an affidavit-in- opposition. Mr. Saha has drawn the attention of this Court that the petitioner was not correct to point out before this Court that the property has already been sold to Mr. Banerjee's client as has been wrongly recorded by the Debts Recovery Tribunal. He submits that since this Hon'ble Court directed the petitioner to 18 deposit a sum of Rs.1 Crore as a condition precedent for continuing with the order of injunction a sum having not been defaulted, the order of injunction stood vacated, there can be no reason to agitate that the respondent bank cannot have any right to deal with the property. According to Mr. Saha, a sale is effected only by virtue of a registered Deed of Conveyance and not otherwise. Mr. Saha has referred to the provisions of Section 54 of the Contract Act. He has also drawn attention of this Court to the provisions of Transfer of Property Act to show that it is only by virtue of a Deed of Conveyance a property can be sold out and not otherwise and that being absent in the present case, it cannot be agitated that the property has been sold to Mr. Banerjee's client. He has also relied on a decision in the case of Dipak Kumar Mukherjee - Vs. - Kolkata Municipal Coporation & Ors., reported in (2013) 5 SCC 336. The judgment cited by Mr. Saha relates to regularization of portion of a building which has been constructed in deviation of the sanction plan. Paragraph 26 and 29 referred to by Mr. Saha has no manner of application in the present case which relates to Rule 25 of the Kolkata Municipal Corporation's building Rules framed under Kolkata Municipal Corporation Act, 1980.
I have gone through in details the averments made in the application being G.A. No.2773 of 2016, opposition filed by Mr. Saha's client and reply by Mr. Banerjee's client as also the document annexed in both the applications and the affidavit-in-opposition as also reply thereto. I have specifically gone through the order dated 31st March, 2015, passed by the Debts Recovery Tribunal -III, Kolkata in T.S.A. 30 of 2015. On perusal of the records and considering the 19 submissions made on behalf of the parties I do not find any justification to allow the prayer of Mr. Banerjee so that Mr. Saha's client, the Punjab National Bank, can be directed to furnish a security of Rs.1.75 Crore with the Registrar of Original Side of this Court for the alleged gain made by the bank from out of the property which is the subject-matter of the suit filed by Mr. Banerjee's client. It is true that Mr. Saha's client suppressed the order of the Debts Recovery Tribunal even before the Hon'ble Division Bench of this Court on 26th September, 2014 when the Hon'ble Division Bench directed the plaintiff to deposit a sum of Rs.1 Crore as a condition precedent for continuing with the order of injunction passed on 27th August, 2014. It is also apparent that the conduct of Mr. Saha's client is bad enough to hold that they attempted to frustrate the claim of Mr. Banerjee's client by not informing the petitioner about the development of T.S.A. 30 of 2015 despite directions made to that effect by the Debts Recovery Tribunal. Be that as it may, Mr. Saha's client has made a deal with Chinky Plastics Private Limited, a borrower of respondent bank. If any amount has been paid by the borrower to the respondent bank whether that would tantamount to an illegal gain made by the respondent bank or not cannot be decided at the present moment. Mr. Banerjee's client has other remedies to take appropriate steps against the respondent bank, if at all, any transaction has been made with regard to the sale of the suit property and if such transaction, according to Mr. Banerjee, becomes illegal, his client ought to have taken legal recourse to challenge the orders passed by the Debts Recovery Tribunal, which ultimately led to a situation whereby Mr. Saha's client was able to deal with Chinky Plastics Private Limited, 20 is virtually an attempt to defraud the claim of the petitioner. The petitioner at best can say that his suit may not be frustrated by virtue of any act either on the part of the respondent or on the part of any other third party. If it comes to the knowledge of the petitioner that his claim is being frustrated at the instance of any party, the petitioner being the plaintiff in the suit, will always be at liberty to take such steps to stop such action. In fact, the petitioner filed an application being G.A. No.3869 of 2015 before this Hon'ble Court praying, inter alia, for following orders :
"a) An order of injunction restraining the respondent and/or its men, servants, agents and/or assigns from in any manner disposing of and/or dealing with and/or transferring and/or alienating the property at Rajarhat, District-24 Parganas except in favour of the Petitioner till disposal of C.S. No.293 of 2014;
b) An order of injunction restraining the Respondent and/or its agents, servants or assigns from handing over possession of the subject property at Rajarhat, District-24 Parganas to Chinki Plastics Private Limited till disposal of C.S. No.293 of 2014;
c) Ad-interim orders in terms of prayer above;
d) Costs of and incidental to this application be paid by the respondent;
e) Such further order or orders be passed and/or direction or directions
be given as this Hon'ble Court may deem fit and proper."
The said application being G.A. No.3869 of 2015 was disposed of by this Hon'ble Court by an order dated 22nd December, 2015 whereby this Hon'ble Court held that the interim order passed in favour of the petitioner being no longer subsisting pursuant to the order passed by the Hon'ble Division Bench on 28th November, 2014, no further interlocutory reliefs could be granted once again 21 in favour of the petitioner. However, record reveals that the Hon'ble Single Bench directed the suit to be listed for hearing. Therefore, considering the pros and cons of the matter I do not deem it appropriate to pass an order directing Mr. Saha's client to furnish any security as prayed for by Mr. Banerjee's client, but it appeals to my conscience that as prayed for by virtue of the conduct of Mr. Saha's client the claim of the highest bidder in the auction floated by the respondent cannot be frustrated particularly when such action was taken behind the back of the petitioner despite directions were issued upon the respondent bank to put Mr. Banerjee's client on notice about the development of the proceeding being T.S.A. 30 of 2015. In such circumstances, I dispose of this application holding that the action taken by Mr. Saha's client thereby making one-time settlement with Chinky Plastics Private Limited by virtue of the order of the Debts Recovery Tribunal - III, Kolkata, passed on 31st March, 2015 in T.S.A. 30 of 2015 shall abide by the result of the suit. Refusal to the prayer made by Mr. Banerjee's client in this application, however, shall not deprive his client from taking any steps either against Chinky Plastics Private Limited, or any other third party in accordance with law as he may be advised. If any deal is made with regard to the suit property in favour of Chinky Plastics Private Limited at the instance of the respondent bank or any third party interest is created at the instance of Mr. Saha's client, the same shall not create any equity. I also hold that justice will be subserved if the suit is directed to be listed for hearing forthwith keeping in view of the direction already passed by the Hon'ble Division Bench of this Court.22
Accordingly, I direct that the suit be listed for hearing at the top of the list immediately after the amendment of the written statement is carried out as per direction passed in the other application being G.A. No.2407 of 2016.
In the facts and circumstances of the case, there will be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned counsels for the parties upon compliance with all usual formalities.
(SAHIDULLAH MUNSHI, J.) sp3