Arcuttipore Tea Company Ltd vs Eastern Housing Udyog Finance ...
2021 Latest Caselaw 460 Cal/2

ODC-1

                    IN THE HIGH COURT AT CALCUTTA
                        Civil Appellate Jurisdiction
                              ORIGINAL SIDE
                         [COMMERCIAL DIVISION]


                              APOT/103/2021
                             WITH CS/104/2021

                        IA NO:GA/1/2021
                  ARCUTTIPORE TEA COMPANY LTD.
                               VS.
         EASTERN HOUSING UDYOG FINANCE COMPANY LIMITED
                             ............

BEFORE:

The Hon'ble JUSTICE I. P. MUKERJI AND The Hon'ble JUSTICE ARINDAM MUKHERJEE Date : 14th July, 2021.

[VIA VIDEO CONFERENCE]

Mr. Debal Kumar Banerjee, Sr. Adv., Mr. Rajnish Kumar Kalawatia, Mr. Rudraman Bhattacharyya, Advs...for appellant.

Mr. S. N. Mookherjee, Sr. Adv., Mr. K. Thaker, Ms. Suchismita Ghosh, Mr. Anurag Bagaria, Advs...for respondent.

The Court : We admit the appeal.

As the respondent is appearing, we dispense with issuance and service of

the notice of appeal.

We expedite the hearing of the appeal dispensing with other formalities.

Advocate on record for the appellant will file an informal paper book in this

Court by 30th July, 2021 serving a copy thereof on the advocate on record for

the respondent at least one week before the date of hearing of the appeal.

List the appeal for hearing on 11th August, 2021.

The impugned judgment and order was passed at the ad interim stage.

The appellant/defendant did not have a chance to file an affidavit in

opposition. Their alleged dues to the respondent/plaintiff is disputed, though

the hypothecation of assets of the appellant/defendant including their tea

crop is admitted. Appreciating the prima facie case at the ad interim stage the

learned judge has held and observed as follows :

"There are four letters of demand from 22nd June, 2020 to 7th December, 2020 from the petitioner to the respondent including a letter of 10th September, 2020 recalling the loan. The respondent has not shown a single letter disputing the letters of demand or that the respondent has made part payment of the outstanding amount. The letters of demand in fact mention that cheques given by the respondent have been dishonoured. The ledger accounts are also prima facie evidence of loans being advanced by the petitioner to the respondent which can also be found from certain documents in the first compilation of papers filed by the respondent. The fact of the respondent's cheques being dishonoured shows that the respondent is in involved circumstances which supports the petitioners prayer for interim relief. The respondent's contention that the ledger accounts have manipulated entries is without corroboration and is a question which can only be determined at trial.

........

Since the petitioner's prayer involves tea leaves which are perishable commodities and are presumably being stored at the respondent's garden and since the petitioner's monetary claim has been established, this Court is of the view that a Receiver may be appointed to make an inventory of the green tea leaves which is being stored in the respondent's warehouse/gardens in Silchar, Assam."

At this stage, we are in no position to comment on this finding. However,

prima facie, on scrutiny of the documents annexed to the petition shown to

us, it does not appear that at the ad interim stage a finding could be entered

that the respondent/plaintiff's claim had been prima facie 'established' or

was admitted by the appellant.

Since admittedly the tea crops are hypothecated and perishable, at this

stage, we modify the impugned interim order to the extent below :

The appellant shall be entitled to run the tea garden including sale of the

tealeaves in the manner they have been doing. However, running of the

garden and sale of the tealeaves shall be carried out under the Receiver. The

Receiver will be entitled to appoint such personnel as authorised by the

impugned order, to assist him in his work. The buyer shall make payment

directly to the Receiver. An inventory of the tea leaves being despatched by the

appellant to the organisation, which is entrusted with cutting, drying,

winnowing, etc. of the tealeaves and their sale shall be counter checked by the

Receiver or his agent and a list be prepared and retained by the Receiver and

the parties. Similarly, copies of documents evidencing sale of the tea leaves,

e.g., challans, invoice, receipts, etc. shall also be scrutinised by the Receiver

or his agent and thereafter retained by the Receiver.

The proceeds of sale of tealeaves shall be kept by the Receiver, for the

time being in a savings bank account with a nationalised bank. Out of the

sale proceeds 50% shall be retained by the Receiver and 50% made over to the

appellant to defray their expenses towards labour/wage, statutory dues and

for other essential purposes. The 50% retained with the Receiver shall be

invested by him, as directed by the impugned order. The appellant will

maintain and furnish statements of accounts of such expenditure to the

Receiver and the respondent on a monthly basis.

This interim arrangement is made by this Court on the submission of Mr.

Banerjee, learned senior advocate for the appellant that tea garden labour is

very sensitive particularly in the Covid 19 pandemic period. They are paid

every week, out of the sale of tealeaves. The impugned interim order would

have the effect of stopping this payment completely resulting in

unmanageable unrest in the garden and complete stoppage of the appellant's

business.

We make it clear that in the event the learned single judge proceeds to

dispose of the interim application on affidavits, any prima facie observation or

finding in this order will not influence that proceeding or order in any way.

As affidavits were not invited, the allegations in the stay petition are

deemed not to be admitted.

The connected application is disposed of accordingly.

(I. P. MUKERJI, J.)

(ARINDAM MUKHERJEE, J. )

pkd.