Calcutta High Court
Tata Chemicals Ltd vs M/S. Kshitish Bardhan Chunilal ... on 16 March, 2021
ORDER SHEET
OD-10 & 11
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
IA No. GA 1 of 2019
(Old No. GA 725 of 2019)
In
CS No. 50 of 2019
TATA CHEMICALS LTD.
VERSUS
M/S. KSHITISH BARDHAN CHUNILAL NATH AND 4 OTHERS.
IA No. GA 1 of 2019
(Old No. GA 733 of 2019)
In
CS No. 51 of 2019
TATA CHEMICALS LTD.
VERSUS
ASHOK KUMAR SAHA AND ANR.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date: 16th March, 2021.
(Via Video Conference)
Appearance:
Mr. S. N. Mookherjee, Sr. Adv.
Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Lokenath Chatterjee, Adv.
Mr. Jaydeb Ghorai, Adv.
Mr. Sougata Banerjee, Adv.
For the petitioners.
Mr. Jishnu Chowdhury, Adv.
Mr. Syed Nurul Arefin, Adv.
Ms. Saswati Chatterjee, Adv.
Mr. Ratul Das, Adv.
Mr. Rahul Singh, Adv.
For the respondent no.1 in item no. 11.
Ms. Urmila Chakraborty, Adv.
Mr. Ovik Sengupta, Adv.
Mr. Vivek Basu, Adv.
Mr. Arindam Paul, Adv.
For the defendant no.5 in GA No. 725 of 2019 and
Defendant no.2 in GA No. 733 of 2019.
Mr. Subhamoy Bhattacharya, Adv.
Mr. Shankar Mukherjee, Adv.
Ms. Ishani Kundu, Adv.
For the respondent nos.1-4 in item no.10.
The Court :- Two interlocutory applications in two suits are taken up for
final hearing after completion of affidavits. There subsists an ad interim order of
injunction sustained up to the Appeal Court.
The claim of the plaintiff as against the defendants in the suit are in
relation to damages that the plaintiff allegedly suffered by reason of the
defendant no.5 in CS No. 50 of 2019 and the defendant no.2 in CS No. 51 of
2019, as an employee of the plaintiff handling the affairs of the plaintiff in
relation to the other defendants of the two suits. It is the case of the plaintiff that,
the defendant nos. 1to 4 in CS No. 50 of 2019 and the defendant no.1 in CS No.
51 of 2019 were distributors or dealers of the plaintiff in respect of the four
regions. The employee of the plaintiff, that is, the defendant no.5 in CS No. 50 of
2019 and the defendant no.2 in CS No. 51 of 2019 entered into an unholy
arrangement with the other defendants of the two suits whereby and
whereunder. Such employee allowed the other defendants to take delivery of the
goods belonging to the plaintiff, such defendants did not pay the plaintiff for such
goods. In turn, the employee of the plaintiff received 25% as kickback from the
other defendants with regard to excess delivery made by the plaintiff.
Learned Senior Advocate appearing for the plaintiff in two suits submits
that, delivery of the goods is admitted and acknowledged. There is price circular
governing the delivery. He submits that, on the plaintiff becoming aware of the
misdeeds, two audits were conducted and one of them a forensic audit. Such
misdeeds of the defendants came to light and the defendants and the employee
were accosted when they acknowledged their liability and promised to make
payments. He submits that, the electronic mails of the defendants in the two
suits indicate the quantum of the claim of the plaintiff. He relies upon 2021 SCC
OnLine Cal 413 (Anumati Consultancy and Services Private Limited-Versus-
Wellside Global Private Limited) and submits that, even in a case where there
is a dispute as to the quantum of the claim of the plaintiff an order of injunction
can be granted.
Learned Advocate appearing for the defendant nos. 1to 4 in CS No. 50 of
2019 submits that, so called admissions of his clients was obtained by coercion
and such admissions were retracted immediately thereafter by his clients and/or
prior to filing of the suits. He submits that, the written statements of his clients
are ready along with counter claim. He seeks to file the written statement along
with the counter claim.
Learned Advocate appearing for the defendant no.5 in CS No. 50 of 2019
submits that, her client also retracted the so-called admissions. According to her,
the plaintiff did not disclose the retraction in the injunction petition.
In reply, learned Senior Advocate appearing for the plaintiff submits that,
the retractions were disclosed in the petition.
Learned Advocate appearing for the defendant no.1 in CS No. 51 of 2019
submits that, the writing claimed to be an acknowledgement cannot be construed
to be one. He submits that, the business relationship between the parties were
over a period of time. Moreover, the defendants retracted the so-called
admissions at least in the affidavit. He submits that, on the basis of
unascertained claim and order of injunction cannot be granted. In support of
such contention, he relies upon (2010) 4 CHN 87 (Cal) (Jai Balaji Industries
Ltd.-Versus-Hyquip Systems Pvt. Ltd.).
Learned Advocate appearing for the defendant no.2 in CS No. 51 of 2019
submits that, the written statement is ready and that, the same can be filed in
the event of Court granting leave. The defendant no.2 retracted the so-called
admissions. No relief should be granted to the plaintiff.
The claim of the plaintiff is unascertained. At this stage, it is essentially a
claim for damages for the misdeeds that the defendants allegedly did in respect of
the affairs of the plaintiff. The so-called admissions stands retracted. At the
interlocutory stage, the Court need not enter into the arena of the evidence
analysis and evaluate the same to arrive at the finding of the actual claim of the
plaintiff and the admission if there be any. The parties to the suit should be
afforded one opportunity at trial to lead evidence before ascertaining the merits
respective claim.
In Jai Balaji Industries Ltd (supra) the Court is of the view that, the claim
of the plaintiff in that suit was in damages and was required to be ascertained. It
expresses the view that, for a claim, which is essentially for an unliquidated
amount in damages no order in the nature of attachment before judgment is
ordinarily passed.
In Anumati Consultancy and Services Private Limited (supra) the
parties were litigating on the basis of a contract over which the parties were
having difference in opinion with regard to the quantum of liability under the
contract. In such circumstances, the Court returned a finding that there was an
amount due and payable by the defendant to the plaintiff and proceeded to grant
an order of injunction. The claim was not for liquidated damages.
In the facts of the present case, unless, the claims are assessed or
evaluated on evidence at the trial, it cannot be said that, any of the claims of any
of the parties are quantified. The defendant nos. 1 to 4 have a counter claim as
against CS No. 50 of 2019.
In such circumstances, in my view, the claim of the plaintiff being in the
nature of damages an order of injunction is not called for. The subsisting ad
interim order stands vacated. It would be appropriate to expedite the hearing of
the suits. The defendants in the two suits are allowed to file their written
statement along with the counter claim, if any, by March 19, 2021. The plaintiff
is at liberty to file the additional written statement to the counter claim within
March 26, 2021. The parties will discover their respective documents within four
weeks from date; inspection forthwith thereafter. The plaintiff will prepare the
Judge's Brief of Documents.
The plaintiff is at liberty to mention the two suits for early hearing.
IA No. GA 1 of 2019 (Old No. GA 725 of 2019) in CS No. 50 of 2019 and IA
No. GA 1 of 2019 (Old No. GA 733 of 2019) in CS No. 51 of 2019 are disposed of.
(DEBANGSU BASAK, J.)
snn.
