Calcutta High Court
Bimla Devi Halwasiya vs Bhavin Jayant Soni on 29 January, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-3
ORDER SHEET
IA No.GA 2 of 2024
In
CS 202 of 2023
IN THE HIGH COURT AT CALCUTTA
ORIDNARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
BIMLA DEVI HALWASIYA
VS.
BHAVIN JAYANT SONI
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 29th January, 2024.
Mr. Reetobroto Kr. Mitra, Mr. Ayan Dutta, Ms. Debolina Dey, Advocates for the plaintiff.
Mr. Mayank Kakrania, Mr. Tanmoy Sett, Advocates for defendant. The Court : In this application inter alia for injunction in a suit for recovery of money lent and advanced, the plaintiff has been able to prima facie satisfy that a principal sum of money aggregating to Rs.55 lakhs was given to the defendant's father who carried on business under the name and style of Joy Builders as a sole proprietor thereof. The tax deducted at source certificates show payment of interest under Section 194A of the Income Tax Act, 1961 which also prima facie demonstrate payment of interest on the money received. There is also a dishonour of a cheque issued by the defendant's father. The defendant under the testamentary bequeath made by his father has inherited the estate. The Will has been duly probated. In law the defendant, therefore, becomes liable to the extent of the estate he has inherited from his father for the debts owed by his father, since 2 deceased. The plaintiff by relying upon the averments made in the application with supporting documents prays for an order of injunction in respect of the operation of the bank account against the permanent account number of the defendant without leaving a balance of the principal sum with accrued interest.
The defendant, on the other hand, says that the plaintiff's claim is simplicitor a money claim. Injunction is spurringly granted in a money claim. The application also does not fulfil the requirements needed to maintain an application for attachment before judgment under the provision of Order XXXIII Rule 5 of the Code of Civil Procedure, 1908. The application, therefore, is not maintainable. The defendant has, however, produced no document wherefrom even a slightest indication is available that the defendant's father had returned the money or any part thereof. The defendant has also not refunded any part or portion of the said money. The defendant has relied upon a judgment reported in (2009) 3 CHN 417 (Sunil Kakrania & Ors. Vs. M/s. Saltee Infrastructure Ltd. & Anr.) in support of his contention that in a claim for money attachment before judgment is a rare one.
In reply, the plaintiff says that the view in Saltee Infrastructure Ltd. (supra) has been subsequently diluted by a Division Bench of this Court in the judgement reported in 2019 (4) CHN 412 (Harleen Jairath vs. Prabha Surana & Anr.). By referring to the judgment reported in (2021) 6 SCC 418 (Rahul S. Shah Vs. Jinendra Kumar Gandhi) the plaintiff says that it clearly observes that in a money claim before settlement of issues if the Court intends can call for affidavit from the defendant disclosing the details of his properties and assets. The Supreme Court in Rahul S. Shah (supra) 3 has also held in an appropriate case security can be sought for.
After considering the rival submissions, I am inclined to pass an order in favour of the plaintiff. However, by injuncting the operation of bank account without keeping at least the principal sum as prayed for by the plaintiff may cause hindrance to the business of the defendant. As an alternative, since the defendant is a builder, the defendant shall inform the Court about an immovable property in unencumbered state, the tentative valuation whereof may be around Rs.55 lakhs so that the alienation of such property shall remain restrained till the disposal of the two applications being GA 1 of 2024 and GA 2 of 2024 filed in the suit.
Let this matter appear in the list on 7th February, 2024 when the defendant shall apprise the Court as to the immovable property as referred to hereinabove.
(ARINDAM MUKHERJEE, J.) pa