Calcutta High Court
Utkarsh India Limited vs Aparajita Enterprises & Anr on 5 December, 2022
ORDER SHEET
ODC-5
IA No.GA 1 of 2022
IN
CS 154 of 2022
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
(COMMERCIAL DIVISION)
UTKARSH INDIA LIMITED
VS.
APARAJITA ENTERPRISES & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 5th December, 2022
Appearance
Mr. Rupak Ghosh, Mr. Ayan Dutta, Mr. Dwip Raj
Basu, Advocates for the plaintiff.
The Court : The defendants were represented by Advocates when
the matter was taken up on 17 th November, 2022. On the prayer of the
learned Advocate who had the instruction to appear on behalf of the
defendants, the matter was adjourned to enable him to collect the cause
papers from the plaintiff's Advocate and take necessary instruction from
his clients after perusing the same. The said learned Advocate was also
directed to file the Vakalatnama on behalf of the defendants by 30 th
November, 2022 and inform about the same to the learned Advocate for
the plaintiff.
No one appears on behalf of the defendants even at the second
call. No adjournment is sought for. No one has applied for link to
represent the defendants on virtual mode.
It is submitted by the plaintiff that no intimation has been
received from the learned Advocate who was permitted to file the
Vakalatnama on behalf of the defendants by the order dated 17 th
November, 2022 about the filing of the Vakalatnama.
In this backdrop, there is no question of adjourning the matter.
The matter is taken up in the absence of the defendants.
By an order dated 31st October, 2022 the defendants were
restrained from operating the bank account maintained with Punjab
National Bank, East Gandhi Maidan, Patna, Bihar - 800001 branch
bearing no.3041005500280998 without keeping a balance sum of
Rs.40,00,000/-. This order was passed keeping in mind that two cheques
respectively bearing nos.701713 for a sum of Rs.35,64,000/- and 701714
for a sum of Rs.4,36,000/- aggregating to Rs.40,00,000/- were
dishonoured. These cheques were drawn on Punjab National Bank, East
Gandhi Maidan, Patna, Bihar branch and were both dated 24 th May,
2022.
In absence of the defendants the version of the defendants as to
the issuance and dishonour of cheques are not available. On the other
hand the WhatsApp message which appears at page 46 of the petition
coupled with issuance of the two cheques as aforesaid, immediately
thereafter, prima facie demonstrates that the cheques were issued in
discharge of the obligations of the defendants.
In the aforesaid facts and circumstances, the defendants and
each one of them are directed to put in a security of Rs.40,00,000/- by
cash deposited to the credit of the suit within 5 th January, 2023, failing
which there shall be an automatic decree for the said sum of
Rs.40,00,000/- against the defendants and each one of them, jointly
and/or separately in favour of the plaintiff. The security is provided not
strictly in terms of the provision of Order XXXIII Rule 5 of the Code of
Civil Procedure, 1908 but under the provision of Section 151 of the Code,
considering the instant case to be an appropriate one in the light of the
judgment reported in (2021) 6 SCC 418 (Rahul S Shah Vs.
Jinendrakumar Gandhi).
The application being GA 1 of 2022 is accordingly disposed of
without any order as to costs.
(ARINDAM MUKHERJEE, J.)
pa
