Uco Bank And Others vs Hemant Kanoria And Others
2022 Latest Caselaw 6733 Cal

4-5   20.09.             IN THE HIGH COURT AT CALCUTTA
      2022                        Civil Appellate Jurisdiction
                                    (Commercial Division).
      Ct. No. 37
                                          -----------

Ab

FMAT 320 of 2022 IA No. CAN 1 of 2022 UCO Bank and others.

Vs.

Hemant Kanoria and others.

With

FMAT 327 of 2022 IA No. CAN 1 of 2022 KPMG Assurance and Consulting Services LLP Vs.

Hemant Kanoria and others.

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Mr. Siddhartha Mitra, Mr. Sakabda Roy, Mr. Deepanjan Dutta.

... for the appellants in FMAT 320 of 2022.

Mr. Rupak Ghosh, Mr. Rahul Auddy, Mr. Ayan Dutta, Mr. Aditya Gooptu, ... for the appellant in FMAT 327 of 2022 & for the respondent no. 2 in FMAT 320 of 2022.

Mr. Jishnu Chowdhury, Mr. Rishav Banerjee, Mr. Soumalya Ganguly.

... for the respondent no. 1 in both the appeals.

The instant appeals are directed against a judgment and order dated 18th July 2022 passed by the learned Judge, Commercial Court at Alipore in Title Suit No. 09 of 2022 by which an application for injunction was disposed of by passing the temporary injunction. We do not find any impediment in maintaining the instant appeals under Section 13 of the Commercial Courts Act, 2015. However, the appearing Counsels

pray for an interim order in the form of stay of the operation of the impugned order. After perusing the impugned order, we find that the points, which have been canvassed before us, need to be considered and, therefore, we formally admit the appeals.

So far as the stay is concerned, several directions have been passed in the form of temporary injunction over which the learned Advocate for the appellants has critical vision thereupon. According to him, the said orders do not take into consideration the salient facts and the applicability of the master circulars as well as the other proceedings initiated before the other forum and, therefore, it is should be stayed. The instant appeals are against an order granting temporary injunction and, therefore, in the event the stay of operation of the order is passed at this stage, it would virtually tantamount to allowing the appeals. We are not propounding the proposition that the Court is denuded of such power yet there should be clear distinction in this regard that only in an exceptional and extraordinary circumstances the Court shall stay the operation of the order, which should not be mechanically used at the admission stage. We proposed to hear the appeals and, therefore, we dispensed with all formalities including filing of the paper books.

At this stage, it has been pointed out by the learned Advocate for the appellant in FMAT 327 of 2022 that the audit report, as directed by the Commercial Court in the impugned order, has already been submitted to the bank and, therefore, there is no occasion to go for further audit or to file the original audit report. It further appears that the said appellant was directed to produce the purported audit report in a sealed cover obviously to be taken into consideration at a relevant point of time when the occasion for perusal

thereof arises. As original audit report is with the bank, we, therefore, direct the said appellant to file the authenticated copy of the said audit report in a sealed envelope before this Court within one week after the resumption of functioning of the Court following long vacation. The aforesaid compliance shall be strictly without prejudice to the rights and contentions of the said appellant.

Since we intend to fix a date for hearing the said appeals, we permit the respondents to file affidavit-in- opposition to the stay application within fortnight from date, if they choose to do so and copy thereof shall be served within two days from the date of affirmation upon the learned Advocate for appellants. It is open to the appellants to file reply on reopening of this Court following Puja Vacation and the copy thereof shall be served upon the learned Advocate for the respondents immediately after the affirmation thereof. Let the appeals and the connected application be listed on 7th November 2022.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)