Astrex Enterprise Pvt. Ltd vs Surendra Singh Bengani
2023 Latest Caselaw 649 Cal/2

                   IN THE HIGH COURT AT CALCUTTA
                   (Ordinary Original Civil Jurisdiction)
                         COMMERCIAL DIVISION


Present:

The Hon'ble Justice Krishna Rao



                           IA No: GA 3 of 2022

                            In CS 156 of 2020



                        Astrex Enterprise Pvt. Ltd.
                                  Versus
                         Surendra Singh Bengani



            Mr. Rupak Ghosh
            Mr. Ranjit Kumar Basu
            Mr. Ayan Datta
                                       ... for the plaintiff/petitioner.

            Mr. Rohit Banerjee
            Mr. Virendra Singh Bengani

                                    ... for the defendant/respondent.

Heard on : 13.02.2023, 23.02.2023, 01.03.2023 & 02.03.2023

Judgment on : 14.03.2023

Krishna Rao, J.:

The plaintiff has filed the instant application praying for appointment

of Special Officer/Receiver for taking possession of books of account and to

finds the details of various transactions with various debtors and other

parties and to collect the trade receivable by the defendant from the debtors

of the defendant.

The plaintiff had filed the suit against the defendant being C.S. No.

156 of 2020 praying for a decree for a sum of Rs. 5,41,88,527/- along with

interest. The plaintiff previously filed an application being G.A No. 1 of 2020

praying for an order of injunction restraining the defendant from

withdrawing any amount from the bank mentioned in prayer (a) of the said

application. In the said application, this Court has passed an order

restraining the defendant from withdrawing any sum from S.B. A/c No.

910010017274507 maintained with the Axis Bank Limited, Sarat Bose

Road, Kolkata and S.B A/c No. 3102135000011008 with Karur Vysya Bank,

Shakespeare Sarani Branch, Kolkata without keeping aside a sum of Rs. 5

crore towards the claim of the plaintiff.

In the affidavit-in-opposition filed by the defendant in connection with

G.A No. 1 of 2021, the defendant stated that the defendant did not have any

control over the S.B. A/c No. 910010017274507 maintained with the Axis

Bank Limited as the said account was opened by the finance broker Shri

Shanti Kumar Surana in the name of the defendant and the defendant has

handed over blank signed cheques to Shanti Kumar Surana for his use. The

plaintiff confronted the above statement to Shri Shanti Kumar Surana, he

has denied the allegation made by the defendant. Shanti Kumar Surana

vide his letter dated August 2, 2021 clarified that the allegation made by the

defendant in the affidavit-in-opposition are absolutely false and the

defendant had also filed a suit being C.S No. 89 of 2021 before this Court

against one Gyan Nidhi Trust and others including Shanti Kumar Surana.

Mr. Rupak Ghosh, Learned Counsel representing the plaintiff submits

that from the plaint filed by the defendant being CS No. 89 of 2021 reveals

that the defendant had given financial accommodation of Rs. 6,29,35,750/-

to Gyan Nidhi Trust. He further submits that the amount of Rs.

6,29,35,750/- was transferred by the defendant from his Axis Bank

account.

Mr. Ghosh submits that from the plaint filed by the defendant in C.S

No. 89 of 2021, it also reveals that the defendant is also in the business of

lending money and thus the plaintiff believes that the defendant has lot of

trade receivables in the market including a sum of Rs. 25 lakhs receivable

from Vikash Baid as per the order dated 13th April, 2021 passed in C.S No.

77 of 2021. He further submits that an amount of Rs. 6,51,50,000/-

receivable from Sudha Kankaria against which a suit being C.S No. 142 of

2021 is pending against the defendant.

Mr. Ghosh submits that the plaintiff apprehend that the defendant

will clandestinely dispose of all the assets and properties with the intent to

obstruct or delay the execution of the decree which is likely to be passed in

favour of the plaintiff in the suit.

Mr. Ghosh relied upon the judgment reported in (2021) 6 SCC 418

(Rahul S. Shah -vs- Jinendra Kumar Gandhi and Others) and submits

that in a money suit, the Court must invariably resort to Order 21, Rule 11,

ensuring immediate excuse and of decree for payment of money on oral

application and in a suit for payment of money, before settlement of issue

the defendant may be required to disclose his assets on oath, to the extent

that he is being made liable in a suit.

Per contra, Mr. Rohit Banerjee, representing the defendant submits

that the application filed by the plaintiff is not maintainable under law as

the same is misconceived and barred by res-judicata. He submits that

previously the plaintiff has filed an application for grant of injunction

against the defendant and this Court had already passed an interim order in

favour of the plaintiff.

Mr. Banerjee submits that as per the notice dated 9th March, 2018

issued by the Deputy Commissioner of Income Tax, Central Circle-4(1),

Kolkata had attached a sum of Rs. 10,08,43,749/- of the Axis Bank account

towards the income tax dues for several assessment years from 2010 to

2017 and by a further notice dated 7th March, 2019, the Assessing Officer,

Income Tax attached a sum of Rs. 1,13,85,464/-.

Mr. Banerjee submits that on receipt of the said notice the Axis Bank

had informed the defendant that an amount of Rs. 99,163/- is paid from

the said account to the Income Tax Authority and remaining petty amount is

marked as lien in the said account.

Mr. Banerjee submits that the plaintiff had the knowledge about the

involvement of Shri Shanti Kumar Surana who was the ultimate recipient

and beneficiary of the loan but the plaintiff has filed the instant suit without

impleading Shanti Kumar Surana as a necessary party in the instant suit.

Mr. Banerjee submits that initially the plaintiff has filed an application

for injunction on the similar fact and without any change of circumstances,

or any subsequent event which gives rise to a cause of action, the plaintiff

has filed the instant application which is not maintainable under law.

Mr. Banerjee submits that the plaintiff has filed the instant

application only on the allegation of apprehension. He further submits that

the Hon'ble Supreme Court laid down principles which are required to be

followed by this court before invoking the jurisdiction under Order 38, Rule

5 of the Code of Civil Procedure and in the said case, none of the grounds of

the plaintiff are covered under the said principle.

Mr. Banerjee relied upon the judgment reported in (2008) 2 SCC 302

(Raman Tech. and Process Engineering Co & Anr. -vs- Solanki Traders)

and submits that the power under Order 38 Rule 5 of CPC is a drastic and

extraordinary power. Such power should not be exercised mechanically or

merely for asking. It should be used sparingly and is strictly in accordance

with Rule, any attempt by a plaintiff to utilize the provisions of Order 38

Rule 5 as a leverage for coercing the defendant to settle the suit claim

should be discouraged.

Mr. Banerjee relied upon the judgment reported in 1995 (1) Mh. L.J.

91 (BDA Limited, Bombay -vs- Central Bank of India) and submits that

Receiver is not required to be appointed unless there is some substantial

ground for such interference, such as a well founded apprehension that the

property in suit will be dissipated or other irreparable mischief may be done

unless the Court appoints a Receiver.

Mr. Banerjee relied upon the unreported judgment passed by this

Court in the case of Rajgaria Timber Private Limited -vs- Bhola Nath

Shaw dated 22nd September, 2022 in CS 223 of 2022 and submits that this

Court has rejected the application for appointment of Receiver as it was not

satisfied with any of the conditions of the Order 38, Rule 5 of the Code of

Civil Procedure.

Heard the learned respective parties, perused the materials on record

and the judgments relied by the parties. This Court on the application filed

by the plaintiff previously, passed an interim order restraining the defendant

from withdrawing a sum from the Axis Bank account and Karur Vysya Bank

without keeping aside sum of Ra. 5 crore towards the claim of the plaintiff.

The plaintiff has filed the instant application for appointment of

Receiver and in the application, the plaintiff has stated that in the affidavit-

in-opposition filed by the defendant in connection with previous application

for grant of injunction, the defendant has stated that the account of Axis

Bank is being maintained by one Shanti Kumar Surana and all the cheques

have been given to Shanti Kumar Surana.

This Court in G.A. No. 1 of 2020 in CS No. 156 of 2020 dated 8th

January, 2021 passed the following order:

"In such circumstances, the plaintiff having made out a prima facie case and the balance of convenience being in favour of the plaintiff and unless an order of injunction is passed, there is every likelihood of the plaintiff being prejudiced, it would be appropriate to pass an order of injunction in terms of prayer (b) of the application. The defendant is restrained from withdrawing any sum from S.B. A/c No. 910010017274507 maintained with Axis Bank Ltd., Sarat Bose Road Branch, Kolkata - 700 020 and S.B. A/c No. 3102135000011008 with Karur Vysya Bank, Shakespeare Sarani Branch, Kolkata - 700 017 without keeping aside a sum of Rs. 5 crores towards the claim of the plaintiff."

The contention raised by the plaintiff in the affidavit-in-opposition

filed by the defendant in connection with G.A. No. 1 of 2021, the defendant

has stated that :

"(d) Mr. Surana had no registration with any stock exchange, to act as a stock broker. However, since 2005, he conducted a part of his business of stock trading through me as my client. In this process separate bank accounts were opened in my name from time to time with various banks namely Corporation Bank, Canning Street Branch, ABN Ambro Bank, India Exchange Place Branch, IDBi Bank, Park Street Branch, IndusInd Bank, Theatre Road Branch, Karur Vysya Bank Shakespeare Sarani Branch, Axis Bank, Sarat Bose Road Branch, Kotak Mahindra Bank, Louden Street Branch, to name a few. Mr. Surana used these accounts, which were in my name, to trade in stocks and conduct his business of accommodation loan. At all material time, the bank accounts were under the control of Mr. Surana. The blank cheques and blank RTGS forms signed by me together with passbooks and all relevant documents of the bank accounts were kept under the custody of Mr. Surana at his office. The books of accounts and statutory liabilities were also maintained by Mr. Surana, from his office.

(e) In May 2010, Mr. Surana, instructed me to open the bank account with Axis Bank, Sarat Bose Road Branch. A bank account having account no. 910010017274507 (hereinafter referred to as the said bank account) was

thus opened in my name. Mr. Surana was already maintaining a separate account in this bank. In addition to that, the companies where he was a director, the other directors of the companies and his HUF also maintained separate accounts with Axis Bank, Sarat Bose Road Branch. The account was used for the same purpose of stock trading and providing accommodation loans. The blank cheques and blank RTGS forms signed by me and all relevant documents of the bank account was similarly kept under the custody of Mr. Surana and at his office."

The injunction application filed by the plaintiff is still pending for final

disposal. The plaintiff has also stated that the defendant has filed several

suits being C.S No. 89 of 2021, C.S. No. 77 of 2021 and C.S No. 139 of 2021

against other persons for recovery of money. The plaintiff in CS No. 89 of

2021 made an averment that he has made transaction with the defendant in

the Axis Bank Account in which the plaintiff of the present suit obtain an

order of injunction.

It is well settled that the object of the provisions for attachment before

judgment is to prevent any attempt on the part of the defendant to defeat

the realization of the decree that may be passed against the defendant.

The attachment before judgment would be made where the Court is

satisfied that the defendant is about to dispose of whole or part of his

property or is about to remove the whole or any part of his property from the

local limits of the jurisdiction of Court with the intention to obstruct or delay

the execution of any decree that may be passed against the defendant. Thus,

the provision will apply where the defendant is about to dispose whole or

part of the property and not where the property has already been disposed

of much before the filing of the suit.

The rule applies only where the defendant is about to dispose of, or

remove his property from the local limits of the jurisdiction of the Court.

Therefore, the Rule can be applied to show that the defendant has acted, or

is about to act with the intent to obstruct or delay the execution of the

decree that may be passed against him. There must be definite evidence on

the point that defendant is about to dispose of the whole or part of his

property and that the disposal is with the intention of obstructing or

delaying the decree that may be passed against the defendant.

The grounds in support of the appointment of receiver for attachment

have been summarized in paragraphs 37 and 38 of the application. It has

been alleged that the defendant with the intent to obstruct and delay

execution of decree that is likely to be passed in the suit about to dispose of

the receivable from his debtors. There is nothing on record to show that any

such incident was occurred that the defendant has disposed of or alienated

the receivable debts. The circumstances which the plaintiff has shown are

that the defendant has initiated suits against different persons for recovery

of his debts. The plaintiff has not filed any document to show that the

defendant has alienated or is going to be alienated any property.

In view of the above, this Court is of the opinion that there is no material on record for appointment of Receiver. Accordingly, G.A 3 of 2022 is thus dismissed.

(Krishna Rao, J.)