Ladymoon Towers Private Limited vs Mahendra Investment Advisors ...
2021 Latest Caselaw 461 Cal/2

ODC- 6

                                   IA NO.GA/3/2021
                                          IN
                                      CS/99/2020

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


                    LADYMOON TOWERS PRIVATE LIMITED
                                 Versus
               MAHENDRA INVESTMENT ADVISORS PRIVATE LIMITED


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA

Date :14th July, 2021 (Via Video Conference)

Appearance:

Mr. Shailendra Jain, Adv.

Ms. Swati Agarwal, Adv.

Mr. Aritra Basu, Adv.

Mr. Abhijit Sarkar, Adv.

The Court: This is an application filed by the defendant for return of the

plaint and alternatively for rejection of the suit.

Although this matter was heard on 9th July, 2021 at some length, learned

counsel appearing for the applicant seeks to withdraw the application on the

ground that the applicant/defendant has recently come to know of an order

passed by the National Company Law Tribunal, Hyderabad on 28th April, 2021

initiating Corporate Insolvency Resolution Process against the defendant.

Counsel submits that the said order was stayed by an order of the National

Company Law Appellate Tribunal on 5th July, 2021. It is submitted that the

present application which was filed on 30th April, 2021 could not have been filed

since the order of the NCLT was subsisting as on that date. Counsel seeks to

withdraw and file the application afresh.

Learned counsel appearing for the plaintiff resists the prayer for

withdrawal on the ground that the defendant has suffered an order of injunction

which was preceded by other orders passed by a learned Single Judge of this

Court in an application for interim relief filed by the plaintiff. By an order dated

23rd December, 2020, the defendant was restrained from alienating its assets and

the parties were directed to file their affidavits. On 3rd February, 2021, the

learned Single Judge passed a further order directing the defendant to furnish

cash security of Rs. 64,50,000/- to the Registrar, Original Side as security for the

claim of the plaintiff. The cash security was to be deposited within a period of

two weeks from the date of the order. Counsel submits that none of these facts

have been disclosed in the application.

Although the prayer is for withdrawing the application simpliciter, the

conduct of the defendant should be taken note of. Admittedly, the defendant has

not filed its written statement or the affidavit-in-opposition to pending

applications including in an application for summary judgment. The fact of the

CIRP proceedings do not find place in the application. The defendant has failed

to comply with the orders of Court including furnishing of security as directed in

the order dated 3rd February, 2021. The alleged miscommunication between the

defendant and its advocate-on-record is wholly incredible in the facts as stated

above and the excuse given of the pandemic cannot be believed at this stage.

The defendant can therefore only be permitted to withdraw the application

on terms. The defendant shall accordingly pay costs assessed at Rs. 25,000/- to

the State Legal Services Authority towards financial assistance of women who

have lost the sole earning member of their families in the pandemic.

The costs shall be paid within a period of a week from date.

IA No.GA/3/2021 is dismissed as withdrawn with liberty to file afresh on

the self-same cause of action.

(MOUSHUMI BHATTACHARYA, J.)

bp.