Calcutta High Court
Tata Consultancy Services Ltd vs Jaygrih Nirman Pvt. Ltd on 7 August, 2023
OD - 7
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
CS 205 of 2005
IA GA 4 of 2006
(Old GA 1717 of 2006)
GA 14 of 2023
TATA CONSULTANCY SERVICES LTD
VERSUS
JAYGRIH NIRMAN PVT. LTD.
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date : 7th August, 2023.
APPEARANCE:
Mr. Kuldeep Mullick,Adv.
Ms. Somali Bhattcharya,Adv.
...for the plaintiff.
Mr. Pranit Bag,Adv.
Ms. Nairanjana Ghosh,Adv.
Mr. Anurag Modi,Adv.
...for the defendant.
G.A. No. 14 of 2023
The Court: - The Learned Counsel of both the parties submitted that
Mr. Ajoy Chowdhury should substitute Mr. Chandra Kumar Deora, the
existing Joint Receiver and Mr. Subhojit Roy should substitute Mr. Amit
Basu. As such, the existing Joint Receivers be substituted by the new Joint
Receivers as named above. Accordingly, Mr. Ajoy Chwdhury and Mr.
Subhojit Roy shall act as new Joint Receivers. The erstwhile Joint Receivers
shall hand over all the documents as well as investment papers, money
whatever they may have along with other valuable things to the new Joint
Receivers.
A copy of this order may be sent to the said existing Joint Receivers
for doing the needful and for information.
GA No. 14 of 2023 stands, accordingly, disposed of.
G.A. No. 4 of 2006
GA No. 4 of 2006 is filed by the Defendants with prayers of directing
the Plaintiff to furnish security for a sum of Rs.76,92,483.60 paisa;
injunction order restraining the Plaintiff from operating its bank accounts
specified therein; direction to the Plaintiff to pay rent to the Defendant
month by month with effect from March 2006 till disposal of the present suit
and counter-claim; attachment of bank accounts along with other prayers.
The suit is instituted by the original Plaintiff praying for decree for a
sum of Rs. 13,75,011.36 paisa together with interest of Rs. 1,85,626.53
paisa; decree for a sum of Rs.2,30,691.00 paisa for maintenance up
keeping and security and took premises of the suit property along with
various other prayers.
The sum and substance of the plaint case is that the Plaintiff was
tenant in respect of two suit premises under the Defendant. The Plaintiff
terminated tenancy agreements invoking appropriate clause of the
agreement and intimated the Defendants that they will leave the tenanted
portions by October 21, 2004. The Plaintiff also requested Defendant to
refund the security deposit after adjusting from the same the rents for the
month of September and October 2004 which the Plaintiff furnished to the
Defendant. The Defendant failed to do that. Hence the Plaintiff instituted
the suit.
In this background, the defendant filed written statement and
counter-claim of Rs. 86,79,229.27 paisa on account of rent and interests
therein. In order to secure their claim and on apprehension, as stated in
Para 22 of the application that the Plaintiff, with intent to delay or obstruct
the execution of any decree that may be passed in favour of the Defendant,
may deal with and/or remove the property or any of them.
The Plaintiff filed affidavit-in-opposition denying the allegations.
It is contention of the Learned Counsel for the Defendant that by a
previous order this Court secured the security deposit in by investing the
amount in appropriate scheme. The claim of the Defendant may be
frustrated by the act of the Plaintiff for which the instant application is filed.
The Learned Counsel for the Plaintiff, on the other hand, submitted
that the Defendant has no right to claim rent or mesne profit because the
tenancy agreement has a clause whereunder the Plaintiff may continue
possession after termination of tenancy without payment of rent, unless and
until security deposit is refunded. According to him, in view of such
provision, the Defendants entitlement of claim is in jeopardy. Since, it is
uncertain claim entitlement of which is yet to be decided, the instant
application cannot be allowed securing such payment.
I have heard rival submissions.
The instant application contains prayer namely (a) and (b) which can
be invites application of Order XXXVIII Rule 5 of the Code of Civil Procedure,
that is to say attachment before judgment. An application for attachment
before judgment is tenable on certain contingencies as specified in Order
XXXVIII Rule (5) (1) (a) - (b). There is no pleading in application that the
Plaintiff is about to dispose of the whole or any part of his property or is
about to remove the whole or any part of his property from limits of
jurisdiction of this Court. Pleading fails to make out a case attracting
provisions of Order XXXVIII Rule 5 of the Code of Civil Procedure.
Therefore, these two prayers cannot be allowed.
The Defendant also prayed for appropriate order of injunction. It is
settled principle of law that the grant of injunction should be considered
from the point of view of three cardinal principles. The Defendants right to
the claim amount is a question of serious dispute. This apart there is no
averment that the Plaintiff is about to remove the properties from the
jurisdiction or on the verge of insolvency. It is not a case of specified
liquidated amount stipulated in an agreement. Therefore, I am not able to
find any prima facie case in favour of the Defendant to pass order of
injunction. Accordingly, the instant application stands dismissed.
GA No. 4 of 2006 stands disposed of.
Fix on 12th September, 2023 for "Witness Action".
(SUGATO MAJUMDAR, J.)
