Calcutta High Court
Skipper Limited vs Prabir Kumar Sasmal on 11 March, 2024
OCD-6
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[Commercial Division]
IA NO. GA-COM/1/2024
In CS-COM/11/2024
SKIPPER LIMITED
Vs
PRABIR KUMAR SASMAL
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : March 11, 2024.
Appearance:
Mr. Sayantan Bose, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Ms. Ankita Chowdhury, Adv.
...for the plaintiff.
The Court: Mr. Shounak Mukhopadhyay, learned Counsel, is appearing for the plaintiff.
The plaintiff has filed affidavit of service showing that the notice was served upon the defendant on 2nd March, 2024 but none appears on behalf of the defendant.
The plaintiff has filed the present application being GA-COM/1/2024 in CS-COM/11/2024 praying for judgement and decree on admission and an interim order restraining the defendant or his men, agents, servants and/or assigns from operating his bank account being account No. 2130002100001750 maintained with Punjab National Bank, Mangalamaro (Midnapur) Branch with permanent account No. (PAN) BNOPS6808Q for a sum of Rs.20,08,276.03/-.
Counsel for the plaintiff submits that as per the request of the defendant, the plaintiff has supplied PVC pipes and fittings of different specifications to the defendant during the financial year 2017-2019. 2
As on 3rd October, 2019 the balance principal amount is required to be paid by the defendant to the plaintiff was Rs.20,08,276.03/-. The defendant had issued a cheque of Rs.23,50,228/- dated 8th February, 2019 to the plaintiff of Punjab National Bank and the plaintiff had presented said cheque for encashment but the same was returned with the endorsement insufficient fund. The plaintiff has issued notice upon the defendant calling upon the defendant to pay the cheque amount but the defendant had not paid the said amount.
Accordingly, the plaintiff had initiated the case under Section 138 of the Negotiable Instrument Act before the Chief Metropolitan Magistrate at Calcutta and the same is pending.
Learned Counsel for the plaintiff submits that in spite of receipt of notice, the plaintiff failed to pay the said amount. There is every apprehension that the plaintiff will siphone/ divert the amount and the plaintiff will not be in a position to get the fruit of the decree if this Court pass a judgement in favour of the plaintiff. Annexure A at page 16 of the application reveals that there are several transactions with regard to the business between the plaintiff and the defendant were made. From page 19 it reveals that as on 3rd October, 2019 the principal amount of Rs.20,08,276.03 /- was balance to be paid by the defendant to the plaintiff. The cheque issued by the defendant is also enclosed with the instant application at page 100 which prima facie established that the amount payable and due to plaintiff.
The plaintiff has taken out the present application for interim protection till its prayer for judgement on admission is finally decided in apprehension 3 that the defendant will deal with or dispose of his assets to delay and defeat the plaintiff's claim.
In an application for judgment upon admission ordinarily the defendant is afforded an opportunity to deal with the admission alleged before a final order is passed. Only on the party being called up fails to show cause order of security is ordered. The Courts are always cautious while considering the application for judgment on admission as a decree follows under the provisions of Order XII Rule 6(2) of the Code of Civil Procedure, 1908 ( in short CPC) in the event a judgment and order is passed under the provisions of Order XII Rule 6(1) of CPC.
The interim protection sought for by the plaintiff is security. An order directing the defendant to furnish security is an order under Order XXXVIII Rule 5 of the CPC. The classical view in case of passing an order for attachment before judgment, the plaintiff has to satisfy certain parameters as indicated in Order XXXVIII Rule 5 of CPC and explained in the judgments reported in (2008) 2 SCC 302 (Raman Tech. & Process Engg. Co. Vs. Solanki Traders), (2008) 2 SCC 724 (Rajendra & Ors. Vs. Shankar Sundaram & Ors.) and (2009) SCC OnLine Cal 1638 (Sunil Kakrania & Ors Vs. M/s. Saltee Infrastructure Ltd. & Anr.).
There has been, however, a departure from this view in case of a commercial disputes being the subject matter of a suit filed in commercial division of this Court as expressed in the judgment reported in (2021) 6 SCC 418 (Rahul S. Shah Vs. Jitendra Kumar Gandhi).
The plaintiff in the instant case has submitted that the defendant unless is restrained by an appropriate order, there is every chance of 4 diversion/siphoning of the assets by the defendant to defeat the execution of any decree passed in the instant suit.
Considered the submission made by the Counsel for the plaintiff, perused the document on record. This Court prima facie satisfied that the plaintiff has made out a good prima facie case and balance of convenience and inconvenience are in favour of the plaintiff and if at this stage interim protection is not granted to the plaintiff, the same would cause multiplicity of the proceeding in future.
In view of the above, the defendant is restrained from operating the bank account maintained in the Punjab National Bank being Account No. 2130002100001750 with permanent account No. BNOPS6808Q or any other accounts of the defendant without leaving the principal amount of Rs.20,08,276.03/- till 18th April, 2024.
The plaintiff is directed to serve the copy of this order along with copy of the plaint and document and copy of the present application along with all documents within a week from date and to file affidavit of service on the next date fixed.
Let the matter appear on 18th April, 2024.
(KRISHNA RAO, J.) Sbghosh