Talat Ahmed And Ors vs Prabhadeep Construction Private ...
2021 Latest Caselaw 508 Cal/2

ODC-7
                                   ORDER SHEET

                                    EC/100/2021

                         IN THE HIGH COURT AT CALCUTTA
                          Ordinary Original Civil Jurisdiction
                                   ORIGINAL SIDE

                         TALAT AHMED AND ORS.
                                  VS
            PRABHADEEP CONSTRUCTION PRIVATE LIMITED AND ORS.


BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 12th August, 2021.

[Via video conference]

                                                                          Appearance:
                                                              Mr. Rajarshi Dutta, Adv.
                                                             Mr. Sandip Kr. Datta, Adv.

                                                           Mr. Swatarup Banerjee, Adv.
                                                                  Ms. Manali Bose, Adv.
                                                                Mr. Paritosh Sinha, Adv.
                                                          Mr. Saubhik Chowdhury, Adv.
                                                              Mr. Dripto Majumder, Adv.
                                                              Ms. Ayusmita Sinha, Adv.


          The Court : This is an application for execution of an Award dated 15th

  September, 2015. The present position is that the award-debtor nos.3 and 4 filed

  their affidavits of assets sometime in 2018 prior to judgment of a co-ordinate

  Bench of 7th April, 2021 by which certain matters including the present

  execution case was transferred to the Commercial Division. The first question is

  whether the existing affidavits of the award-debtor nos.3 and 4 can be taken on

  board if they were filed when the matter was before a regular Bench. This Court

  is of the view that since both the affidavits were already before the Court before
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the judgment dated 7th April, 2021, the affidavits of assets can be taken on board

before this Court and made part of the present proceedings.

       The second question is whether the petitioner being the award-holder can

be entitled to interim orders pending all four judgment-debtors being heard in a

trial. The judgment-debtor nos.1 and 2 have not filed their affidavits of assets

despite an order of a learned single Judge dated 7th September, 2018. By the said

order, the judgment-debtor no.4 was directed to file its affidavit of assets by the

returnable date on behalf of the judgment-debtor nos.1 and 2. The judgment-

debtor no.4 has not complied with the direction of the aforesaid order till date.

The interim order prayed for is for an order of attachment of the property of the

respondent nos.1, 2 and 3 on the basis of two documents shown by learned

counsel to the Court. According to counsel, the affidavit of assets of the

respondent/award-debtor no.3 suppresses material facts since these two

documents would show that the respondent no.3 is a director of one Siddharth

Construction and Trading Private Limited and also holds substantial number of

shares in Siddharth Construction and Trading Private Limited which is a solvent

company. The contention therefore is that the respondent no.3 despite having

substantial assets has failed to disclose the same in his affidavit.

Learned counsel appearing for the respondent nos.3 and 4 resists the

interim prayer on the ground that the relevant paragraph in the application does

not support the prayer. Counsel seeks time to bring the respondent no. 3 for the

purpose of trial.

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

documents shown in support of prayer for attachment of the properties of the

respondent nos.1, 2 and 3 are not sufficient. The documents only show that the

respondent no.3 is a director and a share holder of a company which may or may

not be a prosperous company - that question has to be decided at the time of

cross-examination of the respondent no.3. The relevant paragraph also gives the

particulars of the residential apartment of the respondent no.3 which makes it

arguable whether a residential property of an individual can form part of an order

of attachment of the assets of the judgment-debtor. A very strong case must be

made out for passing an order of attachment of a residential property of a

judgment-debtor. The other property mentioned in paragraph 69 of the

application does not show the value of such property or any other details which

would convince the Court that the property would satisfy part of the claim of the

petitioner. This Court is therefore not inclined to pass any interim orders pending

cross-examination of the judgment -debtors. The respondent no.3 (mentioned as

judgment-debtor no.4 in the order dated 7th September, 2018) is however

directed to comply with the order passed by a learned single Judge on 7th

September, 2018 within a period of three weeks from date.

The respondent no. 3 shall appear for cross-examination before this Court

on 10th September, 2021 at 2.00 p.m.

(MOUSHUMI BHATTACHARYA, J.)

RS