Calcutta High Court (Appellete Side)
Subhashish Addy vs Haripada Das & Anr on 16 November, 2017
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Acting Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
F.M.A. 1328 of 2017
(CAN 9534 of 2017)
Subhashish Addy
-versus-
Haripada Das & Anr.
For the Appellant : Mr. Anirban Roy,
Ms. Sohini Chakraborty,
Mr. Partha Banerjee,
Mr. Debabrata Das.
For the Respondents : Mr. Gopal Chandra Ghosh.
Heard On : 16th November, 2017.
Judgement On : 16th November, 2017.
Jyotirmay Bhattacharya, J.
This First Miscellaneous Appeal is directed against an order being no. 2 dated 29th August, 2017 passed by the learned Civil Judge, Senior Division, Suri, Birbhum, in Money Suit No. 12 of 2017 at the instance of the plaintiff/appellant.
By the impugned order, the plaintiff's prayer for ad-interim injunction was refused by the learned Trial Judge.
The legality and the propriety of the said order is under challenge in this appeal.
After filing a suit for recovery of money against the defendants/respondents herein, the plaintiff filed an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure praying for an order of temporary injunction for restraining the defendants, their men, agents and servants from dealing with in any manner and/or transferring and/or disposing and/or alienating and/or encumbering and/or creating any third party interest in the property being described as schedule 'A' of the plaint till the disposal of the suit.
An ad-interim relief in similar term was also prayed for in the said application.
The learned Trial Judge refused to grant ad-interim relief to the plaintiff/appellant. The order impugned is not a speaking order.
Be that as it may, since the defendants/respondents have already entered appearance before us, we feel that instead of entering into the merit of this injunction proceeding at this stage, justice will be subserved if we direct the parties to exchange their affidavits in connection with the injunction proceeding within a time bound period so that the plaintiff's application for temporary injunction can be decided at an early date.
Accordingly, we direct the defendants/respondents to file affidavit-in- opposition to the plaintiff's application for temporary injunction in the court below within two weeks from date, reply, if any, be filed by the plaintiff/appellant herein within two weeks thereafter.
We request the learned Trial Judge to make all endeavour to dispose of the plaintiff's application for temporary injunction preferably by the end of January, 2018 without granting any unnecessary adjournment to any of the parties.
The interim order which was passed earlier will continue till the disposal of the plaintiff's application for temporary injunction.
It is, however, made clear that while disposing of this mandamus appeal, we have not entered into the merit of the plaintiff's application for temporary injunction. As such, the learned Trial Judge is absolutely free to decide the plaintiff's application for temporary injunction on his own merit and according to his own wisdom without being influenced by the interim arrangement made hereinabove.
Mr. Ghosh, learned advocate, appearing for the respondents submits that Civil Court has no jurisdiction to entertain the matter in view of the provision contained in Section 430 of the Companies Act, 2013.
Needless to mention here that if such a question is raised by the defendants/respondents in their affidavit, the learned Trial Judge will consider the same while disposing of the plaintiff's application for temporary injunction.
The appeal and the application filed in connection with this appeal are, thus, disposed of.
(Jyotirmay Bhattacharya, A.C.J.) (Arijit Banerjee, J.) ac