Calcutta High Court (Appellete Side)
Maritime Electrical (P) Ltd vs Sg Naba Kumar Naskar on 27 September, 2022
SA 93 of 2022
Item-30.
27-09-2022
Maritime Electrical (P) Ltd.
Versus
sg Naba Kumar Naskar
Ct. 8
The appeal was tendered in the year 1998 but no attempt
was made to move this appeal for admission. The matter initially
appeared in the warning list thereafter transferred to regular list on
9th September, 2022 and since then, the matter appearing in the
list. The appellant is not represented nor any accommodation is
prayed for on behalf of the appellant.
The appellate decree dated 30th July, 1997 confirming the
judgment and decree passed by the trial court dated 18th
September, 1995 in a suit for permanent injunction is the subject
matter of challenge in this second appeal. The trial court
dismissed the suit on merits. The appeal court affirmed the said
decree. The suit was dismissed as the plaintiff simplicitor filed a
suit for permanent injunction without claiming for recovery of
possession. Both the courts found that the appellant before the
institution of the suit was out of possession and it further
transpired that the suit property has been transferred in favour of
third party. The appellant claimed that the respondent is a sole
proprietor of one Metal Engineering Industries and according to
the agreement between the parties, the said proprietorship will be
converted to a private limited company in which the respondent
would be appointed a director. The respondent sold all the assets
in favour of the plaintiff at a consideration amount of Rs.60,000/-
on condition that the newly constructed company will repay the
bank loan of Metal Engineering Industries on receiving
Rs.60,000/- from the newly formed company, the appellate
company would possess all the assets of the erstwhile
proprietorship concerned. The agreement was marked as Exhibit
7. In the said exhibit, there is no schedule therein. The said
agreement only mentions about the machineries. No other
property was sold in favour of the appellant. In the present suit
reliance was placed on exihibit-9 i.e. plaint filed by the respondent
in TS 536 of 1986 which would show that the appellant company
carried on business for a period from June 1993 to June 1996. The
respondent/defendant also appears to have received Rs.27,500/-
from the appellant towards recovery of the loss he suffered
because of the steps taken by the bank. However, it appears from
paragraph 10 of the plaint that on 18th April, 1997, the respondent
and his associate had taken over the possession of the factory and
workshop and since then the directors and workers of the
appellant company could not enter the factory premises. PW-1 has
admitted that they were not in possession of those two rooms and
they are not aware whether the respondent is still carrying on any
business therein. On the contrary DWs. 1, 2 and 3 have
categorically stated that respondents have been carrying on
business and running the workshop and factory and the appellant
had never run the factory and workshop at Jeliapara Raod. On a
clear finding arrived at that the appellant was not in possession
after 18th April, 1987 and the respondent is in possession of the
factory as well as the workshop together with machinery, both the
courts have declined to grant any order of permanent injunction.
Moreover, both the courts have taken the view that the appellants
have not prayed for recovery of possession as they are admittedly
not in possession.
On such consideration, we do not find any reason to
interfere with the findings arrived at by both the courts. The
second appeal stands dismissed at the admission stage. However,
there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
