Dakalia Brothers Pvt. Ltd vs Weaverly Jute Mills Pvt. Ltd
2021 Latest Caselaw 481 Cal/2

ODC-5

                                IA No. GA/3/2021
                                   CS/40/2021
                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                 ORIGINAL SIDE
                              (Commercial Division)


                        DAKALIA BROTHERS PVT. LTD.
                                  Versus
                       WEAVERLY JUTE MILLS PVT. LTD.


 BEFORE:
 The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
 Date : 2nd August, 2021.
 [Via Video Conference]


                                                                         Appearance:
                                                                Mr. Aritra Basu, Adv.
                                                        Mr. Souradeep Banerjee, Adv.
                                                                    Mr. S. Laha, Adv.

                                                               Mr. Reetobroto Mitra, Adv.
                                                                   Mr. A. P. Gomes, Adv.

        The Court : The petitioner in the present application seeks an order

 against the respondent from creating any third party rights in respect of a Jute

Mill which belongs to the respondent. It appears that the petitioner is enjoying

an order of injunction passed by a learned single Judge on 22nd February,

2021 in GA No.1 of 2021 by which the respondent was restrained from selling

its fixed assets without obtaining prior leave of the Court. It appears that the

said order is subsisting as on date.

Learned counsel appearing for the petitioner submits that the

respondent is in the process of creating a long term lease in respect of the Jute

Mill and that if the respondent is not restrained from doing so, the petitioner's

claim for judgment on admissions will be frustrated by the time the earlier

application is taken up for hearing.

Learned counsel appearing for the respondent objects to the prayers on

the ground that no material has been shown for seeking such prayer and

further that the respondent is not in the process of creating any long term

lease or otherwise in respect of the Jute Mill.

Upon hearing learned counsel, this Court is of the view that although

Order XXXIX Rule 1(b) of The Code of Civil Procedure, 1908 has been referred

to in respect of the prayers in the present application, the application is

singularly bereft of any particulars to show that the respondent is, indeed,

alienating or in the process of alienating or transferring its fixed asset which is

the Jute Mill. It is clear from the provision relied on that the Court must be

satisfied upon affidavits or otherwise for passing such an order. There are

judicial pronouncements including those of a Division Bench of this court

which hold that for obtaining an order in the nature of Order XXXIX Rule 1 (b),

there must be corroborative material-on-record to show that the defendant is,

indeed, threatening to remove his property beyond the local limits of the

concerned Court. It is also undisputed that the petitioner is already protected

by an order of injunction which continues till date.

This Court also relies on the assurance given by learned counsel

appearing for the respondent, who submits on instruction, that there is

presently no factual basis to the apprehension raised by the petitioner for

further reliefs.

In view of the above, this Court finds no reason to allow the present

application which is, accordingly, dismissed without any order as to costs.

(MOUSHUMI BHATTACHARYA, J.)

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