Calcutta High Court (Appellete Side)
Satyavama Commotrade Private Ltd. And ... vs Global Motocorp Llp And Another on 11 November, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
04
11.11.2019
Ct. No. 16
ssd
FMA 1522 of 2019
(FMAT 1137 of 2019)
with
CAN 10625 of 2019
Satyavama Commotrade Private Ltd. and others
Vs.
Global Motocorp LLP and another
Mr. Ashok Banerjee
Mr. Aniruddha Chatterjee
Mr. Sanjib Dawn
...for the appellants.
Mr. Abhrajit Mitra
Mr. Jishnu Chowdhury
Ms. R. Singh
...for the respondents.
The appeal arises out of an order dated November 1, 2019 passed in a suit, apparently pertaining to an immovable property.
It is fairly submitted on behalf of the plaintiff- respondent that despite substantial payments in excess of Rs.61,00,000/- made to the defendants for obtaining possession of an immovable property off the Eastern Metropolitan Bypass, possession of the property was not handed over and the plaintiff was constrained to institute a suit in May, 2018, primarily seeking refund of the money since utterly untenable deductions had been sought to be 2 made from the deposit while the defendants purported to terminate the agreement and offer to refund the balance.
There is no dispute that on May 28, 2018 an ex parte ad interim injunction was passed by the trial court restraining the defendants from transferring the suit premises till June 18, 2018. According to the appellant- defendants, they applied for vacating the ex parte order and also filed their objection to the injunction application, but the injunction originally issued on May 28, 2018 was not extended any time prior to June 18, 2018 when such injunction was to run out in terms of the original order. It appears from the order-sheet that the matter was heard some time in June, 2018 and was next posted on July 17, 2018 without the original injunction being specifically extended. On July 17, 2018, the order reveals that the parties filed their haziras; but it does not appear that any hearing took place and the order records a mechanical extension of the original injunction.
According to the appellant-defendants, on or about July 12, 2018 the appellants entered into an agreement with a third party for handing over the same property to such third party. The appellants claim that possession in respect of such immovable property has already been handed over to 3 the third party and the third party operates a Mercedes Benz showroom and garage thereat.
Applications were brought, inter alia, under Section 151 of the Code and under Order XXXIX Rule 2A thereof, by the plaintiff for the perceived breach of the subsisting order of injunction and the alienation of the suit property in favour of another by the appellants herein. It is on such applications that the order impugned dated November 1, 2019 was passed.
The trial court recorded that though the order originally passed on May 28, 2018 had not been expressly extended prior to the expiry thereof on June 18, 2018, but it was implicit from the order of June 27, 2018, which recorded that the matter had been heard in part, that the injunction stood extended. The trial court observed that it was a fault on the part of the court to not specifically extend the order and if there was any fault on the part of the court, the parties could not be allowed to take advantage thereof or suffer any prejudice on such account. As to the recording of the order on July 17, 2018, the trial court noticed that it was the appellants' case that it was a fictitious extension, since no hearing of the matter took place on such date. 4
At the very least, what is apparent is that the order dated July 17, 2018 was no more than a mechanical extension of the order dated May 28, 2018 which had lapsed in the interregnum and the court did not conclude the hearing on the pending applications before extending such order.
It further appears from the impugned order that the trial court took umbrage at the agreement of July 12, 2018 being executed by the appellants in favour of the third party since the trial court perceived that the extension effected on July 17, 2018 would have taken care of the period between June 18, 2018 and July 17, 2018 when no order of injunction subsisted.
It is not necessary to go into the fine details as to whether there was a fault on the part of the court or as to the effect of the mechanical extension of an order of injunction when the objection was already on record; particularly, since the essence of the suit is to obtain refund of the deposit made by the plaintiff from the defendants. If it is the admitted position, notwithstanding the contrary assertions by the defendants in some of their pleadings, that the plaintiff was never put in possession of the relevant property, the plaintiff could not have obtained an order of injunction affecting the 5 possession of the immovable property in the present suit. If the purpose of the present suit is seen to be for obtaining refund of the money deposited by the plaintiff, an order of injunction pertaining to the relevant property would amount to the exercise of the authority under Order XXXVIII of the Code in the absence of any case in the nature of attachment before judgment having been made out. The trial court clearly fell into error; possibly infuriated by the conduct of the defendants at a time when the trial court perceived the injunction to be subsisting.
Since the essential basis for passing any order pertaining to the relevant immovable property cannot be discovered, the order of the trial court cannot be sustained. However, since it appears that there is a substantial claim and it is well known that suits take years for adjudication, the defendants are directed to deposit a sum of Rs.25,00,000/- with the trial court within a fortnight from date for the present order to be effective. In the event such deposit is not made within the time permitted, this order will be of no effect and the order dated November 1, 2019 will stand affirmed and this appeal will be deemed to have been dismissed.
6
Further, it does not appear that the suit was marked as a commercial cause or such suit was taken up by the available commercial bench. The parties agree that the suit is a commercial suit.
The suit will be immediately transferred to the relevant commercial bench. Since it is submitted by the defendants that the written statement has already been filed, such written statement will be taken on record. A copy of the written statement should be forwarded to Advocate for the plaintiff in this court in course of this week.
Subject to the above, FMA 1522 of 2019 and CAN 10625 of 2019 are disposed of without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Kausik Chanda, J.)